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Ford v. Warden, FCI Edgefield

United States District Court, D. South Carolina

February 7, 2017

Glenn Ford, #04010-000, Petitioner,
v.
Warden, FCI Edgefield, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges Columbia, United States Magistrate Judge.

         Glenn Ford (“Petitioner”), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges the 2001 decision of the United States Parole Commission (“USPC”) to rescind his parole. Petitioner is a prisoner housed at the Federal Correctional Institution in Edgefield, South Carolina.

         This matter comes before the court on Respondent's motion to dismiss, or in the alternative, for summary judgment.[1] [ECF No. 10]. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the undersigned advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion by August 8, 2016. [ECF No. 11]. Petitioner failed to file a response. The undersigned issued an order on August 11, 2016, directing Petitioner to advise the court whether he wished to continue with this case and to file a response to Respondent's motion by August 25, 2016. [ECF No. 13]. Notwithstanding the court's orders, Petitioner failed to file a response to Respondent's motion. On August 26, 2016, the undersigned issued a report and recommendation (“Report and Recommendation”) recommending the petition be dismissed with prejudice for failure to prosecute. [ECF No. 15]. Petitioner filed an objection to the Report and Recommendation on September 19, 2016, stating he did not receive any legal mail from the court other than the Report and Recommendation. [ECF No. 18]. On September 22, 2016, the court entered an order declining to adopt the Report and Recommendation, directing the clerk of court to send Respondent's motion for summary judgment to Petitioner, and directing Petitioner to file a response to Respondent's motion by October 26, 2016. [ECF No. 19]. Petitioner failed to file a response. The undersigned issued an order on November 21, 2016, directing Petitioner to advise the court whether he wished to continue with this case and to file a response to Respondent's motion by December 5, 2016. [ECF No. 22]. Petitioner failed to file a response. As such, it appears to the court that Petitioner does not oppose Respondent's motion for summary judgment and wishes to abandon this action. Based on the foregoing, the undersigned recommends this action be dismissed with prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41(b).

         Independently, after having carefully considered the parties' submissions and the record in this case, the undersigned recommends Respondent's motion for summary judgment [ECF No. 10] be granted on the merits.

         I. Factual and Procedural Background

         Petitioner states he was sentenced on November 19, 1987, in the District of Columbia to 39 years imprisonment for armed robbery. [ECF No. 1 at 1, 10].[2] Petitioner claims he was granted parole effective June 22, 1999, however his “parole was retarded by 51 days allowing for the Petitioner's release to Hope Village half-way house.” Id. at 10. On August 13, 1999, Petitioner was transferred from Maximum Security Facility, Lorton, Virginia, to Hope Village. [Final Progress Report (Escape), In re: Glenn Ford, August 26, 1999, ECF No. 1-1 at 1].[3] On August 15, 1999, Petitioner requested to speak with Charge of Quarters, Samuel Essema (“Essema”), in Essema's office. Id. at 2. When Essema agreed, Petitioner “produced a hand gun from a plastic bag and pointed it in Mr. Essma's direction.” Id. Petitioner asked if he could leave Hope Village, and when Essema told Petitioner he needed to call a supervisor, Petitioner left Essema's office and “fled Hope Village grounds.” Id. Petitioner states the District of Columbia Department of Corrections suspended his parole on August 31, 1999, pending further determination by the USPC. [ECF No. 1 at 10]. Petitioner alleges a Notice of Action was filed on September 28, 1999, based on the alleged escape and use of firearm against staff. Id. Petitioner states he was arrested on November 12, 1999. Id. Petitioner had a parole recession hearing on September 12, 2001. [Recession Hearing Summary, Glenn Ford, September 12, 2001, ECF No. 10-16]. Petitioner testified at his hearing, admitting having escaped from Hope Village, but denying having used a firearm. Id. at 1. In finding Petitioner should be found guilty of the escape and firearm charge, the hearing examiner considered Petitioner's testimony and determined the report from Hope Village concerning Petitioner's escape was “more believable than [Petitioner's] story.” Id. The examiner recommended Petitioner's parole be rescinded. Id. at 3. On October 12, 2001, the USPC rescinded Petitioner's parole and continued his mandatory release date “to expiration.” [ECF No. 10-17].

         Petitioner states he “was convicted for the conduct of the escape and the use of a firearm against a staff member by a memo.” [ECF No. 1 at 12]. Petitioner alleges he was denied the right to cross-examine any witness concerning the allegation as to the use of the firearm. Id. Petitioner further claims the alleged victim, Essema, did not author or sign the memo, nor did Essema provide a first-hand report to the parole board. Id. at 13. Petitioner cites to a September 26, 2000 investigator memo that summarizes an interview with Essema. Id. at 14. Petitioner contends the interview was conducted “some 13 months after the alleged incident” and shows Essema “did not remember any specific events” from the day Petitioner left the halfway house. Id. at 14-15. Petitioner states he was “unaware of the interview of Essema, until recently when during a conversation with his appointed counsel he asked for assistance was he provided with the report.” Id. at 14. Petitioner argues he

received a 5 year prison sentence[4] based on no evidence, no testimony, and not only hearsay statements but a piece of paper that is by an unknown author, unsigned, allegedly representing another person, discussing facts from someone who does not remember a firearm contemporaneous to the alleged event.

Id. at 16-17. Petitioner seeks immediate release. Id. at 17.

         This is the fifth 28 U.S.C. § 2241 petition filed by Petitioner challenging the 2001 recession of his parole based on the August 15, 1999 escape infraction. Petitioner filed his first petition on May 15, 2002, in the Eastern District of North Carolina. Ford v. Scott, No. 5:02-HC-326-H (E.D. N.C. July 8, 2003) (“Ford I”).[5] In Ford I, Petitioner challenged the USPC's decision to rescind his parole following his escape, arguing the USPC improperly applied federal parole guidelines. Id., ECF No. 16. The Ford I court found Petitioner's arguments to be without merit and the petition was dismissed with prejudice. Id.

         Petitioner filed a second petition on October 24, 2003, in the Eastern District of North Carolina. Ford v. Scott, No. 5:03-HC-792-H at *4 (E.D. N.C. Sept. 2, 2004) (“Ford II”). In Ford II, Petitioner again challenged the USPC's decision to rescind his parole following his escape. Id., ECF No. 14. Petitioner argued, in part, that (a) there was “not a rational basis in the record” to support the USPC's finding that he assaulted a correctional employee, and (b) his due process rights were violated when he was not allowed to confront the person accusing him of assault. Id. The Ford II court dismissed Petitioner's claims with prejudice finding Petitioner was not entitled to due process protections because Petitioner's parole was not revoked, but rescinded. Id. The court explained Petitioner was only entitled to limited procedural safeguards, which Petitioner received by having a full and fair recession hearing, where Petitioner testified and the hearing officer weighed Petitioner's testimony against the available reports that detailed the halfway house employee's statement concerning Petitioner's escape. Id.

         Petitioner filed a third petition on October 31, 2005, in the Eastern District of Kentucky. Ford v. Sammuels, No. 6:05- CV-604-KKC (E.D. Ky. Dec. 15, 2005) (“Ford III”). The court dismissed Ford III without prejudice finding Petitioner had failed to exhaust his administrative remedies. Id., ECF No. 4.

         Petitioner filed a fourth petition in the Eastern District of Kentucky on January 13, 2006. Ford v. Grondolsky, No. 6:06-CV-10-DCR (E.D. Ky. Dec. 20, 2006) (“Ford IV”). In Ford IV, Petitioner again addressed the USPC's decision to rescind his parole following his escape and argued, in part, that (a) there was an absence of live witnesses at his hearing and (b) the USPC improperly relied on hearsay evidence and an unsigned final progress report to rescind his parole. Id., ECF No. 5 at 5-6. In dismissing Petitioner's case with prejudice, the court found the USPC's findings, including its reliance on the unsigned final progress report, were “insulated from judicial review.” Id., ECF No. 5 at 6. The court further found the USPC's reliance on hearsay would not necessarily amount to a due process violation, finding that:

[T]he use of reports from probation officers is routinely accepted and provides no basis for objection. . . . Further, even where the conduct of the parole revocation runs afoul of the protections described in Morrissey v. Brewer, 408 U.S. 471 (1972), the Petitioner must both allege and demonstrate prejudice resulting therefrom . . . Ford has done neither here. As a result, his allegations regarding the ...

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