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Morell v. Zych

United States District Court, Fourth Circuit

July 2, 2013

HECTOR MOREL, Petitioner,
v.
WARDEN ZYCH, et. al., Respondents.

MEMORANDUM OPINION

Jackson L. Kiser Senior United States District Judge

Hector Morel, proceeding pro se, filed a petition for a writ of habeas corpus seeking to vacate a thirty-five month sentence imposed by the United States Parole Commission ("Commission"). Respondents filed a motion to dismiss, and petitioner responded, making the matter ripe for disposition. After reviewing the record, I dismiss the action as moot because petitioner completed the sentence he currently challenges.

I.

On April 20, 2005, petitioner was released from prison for his conviction for distributing cocaine, in violation of the laws of the District of Columbia, and began a five-year term of supervised release under the Commission's jurisdiction. United States v. Morel, Case No. 2001-FEL-007383 (D.C. Sup. Ct. Aug. 6, 2002). On February 22, 2006, the Commission issued a warrant accusing petitioner of violating conditions of supervised release by, inter alia, committing an assault with a dangerous weapon, in violation of District of Columbia Code § 22-402.

On September 29, 2006, while the supervised release violation warrant was pending, the Superior Court of the District of Columbia ("Superior Court") sentenced petitioner to sixty months' incarceration followed by three years' supervised release for committing the assault with a dangerous weapon. On April 18, 2007, the Commission updated the warrant to reflect the assault conviction.

On July 10, 2010, petitioner completed the sixty month sentence imposed by the Superior Court after serving fifty-three months due to time credits, but he was kept in custody because the Commission executed its warrant on petitioner at the United States Penitentiary in Lee County, Virginia, on July 9, 2010. The Commission notified petitioner on September 17, 2010, that it would conduct a hearing to determine whether to revoke petitioner's supervised release imposed for the cocaine distribution conviction. The first two hearing dates of October 4, 2010, and February 17, 2011, were postponed because petitioner wanted counsel who did not practice in the Western District of Virginia.

Consequently, petitioner's hearing was postponed until November 3, 2011, when he was transferred to the Philadelphia Detention Center and represented by counsel from the Federal Public Defender's Office in Philadelphia. On December 16, 2011, the Commission reviewed the proceedings of the November 3, 2011, hearing and revoked petitioner's supervised release. Ultimately, the Commission imposed an eighty-eight month sentence that ran concurrently with the previously-served fifty-three month sentence, resulting in a remaining, active sentence of thirty-five months' incarceration.[1] This new thirty-five month active sentence started from July 9, 2010, which was the date the warrant was executed on petitioner. Notably, the Commission did not impose a new term of supervised release but did recognize that petitioner still had three years of supervised release to serve due to the assault with a dangerous weapon conviction entered by the Superior Court.

Petitioner argues that the Commission violated the Separation of Powers Clause and Double Jeopardy Clause of the United States Constitution and committed the following procedural errors when it revoked his supervised release and imposed the thirty-five month prison sentence:

1. The Commission failed to give petitioner notice of the assault with a deadly weapon charge contained in a supplemental warrant application and deprived petitioner the right to allocute on the drug violation charge;
2. The Commission delayed the hearing for eighteen months when it should have conducted a hearing within ninety days of the violation warrant's execution, per regulation;
3. The hearing examiner was incompetent to rule on petitioner's procedural objections; and
4. The Commission unlawfully departed from its guidelines when it imposed the thirty-five month prison term.

Petitioner further alleges that his counsel rendered ineffective assistance, in violation of the Sixth Amendment of the Constitution, by not appealing the legality of the sentence.

Petitioner asks me to vacate the thirty-five month prison sentence imposed by the Commission after it revoked his supervised release imposed for distributing cocaine. However, the Bureau of Prisons released petitioner from custody on January 22, 2013, after he completed the thirty-five month active ...


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