Rodgers v. Trate

MEMORANDUM OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS

(ECF No. 1)

RICHARD A. LANZILLO, United States Magistrate Judge.

I. Introduction

Marcus Rodgers (Rodgers), an inmate in the custody of the Federal Bureau of Prisons, has filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241. ECF No. 1. In April of 1997, Rodgers pleaded guilty to a charge of second-degree murder in the District of Columbia. He was sentenced to a term of twenty years to life imprisonment. After being initially granted parole by the United States Parole Commission (the Commission), Rodgers was re-incarcerated following the Commission's reconsideration of its decision based on testimony from the victim's mother. His petition claims he is being unconstitutionally detained and is entitled to immediate release.

The Court will grant the petition.¹

II. Factual Background

The factual background is taken from the representations contained in Rodgers' petition. See, e.g., Scott v. Ebberts, 2010 WL 391814, *1 (M.D. Pa. Jan. 11, 2010). Where able, the Court will cite directly to undisputed evidence of record.

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Rodgers pleaded guilty in the District of Columbia to the second-degree murder of Christian McNeil, in violation of District of Columbia Code § 22-2404 (currently § 22-2103). At the time of the offense, Rodgers was eighteen years of age. He has been incarcerated primarily at the Federal Correctional Institution at McKean (FCI-McKean) since 2008.

Rodgers first became eligible for parole on March 8, 2016. In anticipation of this date, the Commission held an initial parole hearing for Rodgers on October 5, 2015. At this hearing, Hearing Examiner Sandra Hylton found that Rodgers "accepted responsibility for the offense behavior" and "apologized to the victim's mother, stating he makes no excuses for what he did." See ECF No. 1-3, p. 2. The Hearing Examiner noted that Rodgers "indicated his remorse for this offense to the victim, which this Examiner believes was sincere." Id. at p. 4. Gwendolyn McNeil, the victim's mother, also provided written and oral testimony at the hearing. Using the District of Columbia's Parole Guidelines, Rodgers was given a score of 2, which indicated parole should be granted. However, the Hearing Examiner deviated from the guidelines and recommended Rodgers be denied parole to allow him time to finish his General Education Degree (GED). Id. The Commission adopted the Hearing Examiner's recommendation and denied Rodgers parole on December 7, 2015. ECF No. 1-5, p. 2. The matter was continued for rehearing in twenty-four months. Id. at p. 3.

A second parole hearing took place on October 10, 2017, before a different Hearing Examiner, Stephen Husk. The victim's mother was notified of the hearing in accordance with the Crime Victim's Rights Act (CVRA), 18 U.S.C. § 3771, et seq.² In his post-hearing assessment report, the Hearing Examiner noted that a "pre-Hearing Examiner emailed [Commission] Victim Staff a copy of the pre-hearing assessment including the information pertaining to the victim's mother prior

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participation." ECF No. 1-6, p. 2. The Commission did not receive a response from Ms. McNeil and the Hearing Examiner "checked back with [Commission] Victim Staff on 10/6/17 and no response had been received." Id.

At this second hearing, Rodgers again admitted his offense and offered no excuse for his actions. Id. at 3. Rodgers acknowledged that the murder involved a "disagreement over drugs" and that he was "young and impulsive." Id. Rodgers told the Hearing Examiner that "he wishes that he made better choices and could bring the victim back." Id. Hearing Examiner Husk further noted that the Commission's "primary basis for the [first] parole denial was his failure to obtain his GED." Id. When questioned about his continued failure to earn his GED, Rodgers told the Hearing Examiner that "his only problem is mathematics which has plagued him for all his life. It was noted that he still attends GED courses from Monday through Friday from 12 Noon to 2 p.m." Id.

Hearing Examiner Husk also referenced the testimony of the victim's mother from the 2015 hearing. He stated on the record that "we don't have ... as I said, we don't have the victim's mother here this time. I don't know that she feels any differently." ECF No. 1-11 (audio file of 2017 parole hearing). The Hearing Examiner's post-hearing assessment also noted the absence of the victim's mother at the hearing and referenced her statement from Rodgers' 2015 parole hearing wherein she "opposed parole, reading into the record, outlining her opposition to release" and relating her son's last moments. ECF No. 1-6, p. 2. The Hearing Examiner also found Rodgers' explanation for not completing his GED to be credible, and noted documentation which supported Rodgers' good faith attempts to do so. Id. at 5. Rodgers' satisfactory completion of a six-month drug treatment program was also noted by the Hearing Examiner. Id. at 4. Hearing Examiner Husk further observed that Rodgers has been free of disciplinary conduct for over fourteen years. Id. at 5. Given all of this, the Hearing Examiner recommended Rodgers be granted parole. Id. at 4-5.

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The Commission adopted the Hearing Examiner's recommendation on November 6, 2017, and set July 23, 2018, as Rodgers' effective parole date. Id. at 6. The vote for granting parole was 2 to 1. Commissioners Smoot and Cushwa voted in favor of parole and Commissioner Massarone voted against. ECF No. 1-6 at 6; ECF No. 1-21 at 2.

On March 21, 2018, Rodgers was transferred from FCI-McKean to a residential reentry center called Hope Village Halfway House, located in Washington, D.C. While there, Rodgers was housed with three other individuals, participated in drug counseling, took a computer programing course, and continued working toward completion of his GED. He was later permitted to search for employment. He passed a construction exam and obtained a $13.00 per hour position in the District of Columbia as a construction worker. Although the record is not entirely clear, Rodgers began working sometime in mid-May of 2018.³ What is clear, however, is that between March 21, 2018 and May of 2018, Rodgers had an unblemished record while at the halfway house. Rodgers ended up only working one day at this job, completing a 4:00 AM to 3:00 PM shift. Upon returning to the halfway house that day, at approximately 8:30 PM, Rodgers was arrested and transferred to a regional jail in Virginia. He was not told the reason for his arrest. He was transferred back to FCI-McKean a few days later.

Unbeknownst to Rodgers, two days after the Commission voted in favor of his parole, Ms. McNeil contacted a victim specialist at the Commission. She confirmed that she received the notification of Rodgers' October 10, 2017 parole hearing but was unable to attend. Subsequently, she wrote to the Commission on November 13, 2017, and reiterated her opposition to Rodgers' parole. A Supervisory Victims Coordinator, Najah A. Barton, followed-up by telephone with Ms. McNeil. Ms. McNeil expressed "concerns relating to the nature of the case" to Barton. The victim's mother stated that she "is concerned for her safety—as the nature of where the offense

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occurred, the manner in which the subject spoke to her at the 2015 hearing, and the fact of the type of bullets used in the offense, are concerning—as she is elderly." ECF No. 1-7, p. 2. Ms. McNeil admitted, however, that there has been no communication between herself and Rodgers, but expressed concerned he could use the Internet to find her. Id. Ms. McNeil requested another parole rehearing so that she could appear and offer further testimony. Id. Barton recommended that the Commission "[c]onduct a re-hearing at the next soonest available docket before the parole effective date ... as [Ms. McNeil's] typed-written statement of November 13, 2017, could not be considered before or during the hearing process and [Rodgers] presently has a presumptive parole date." Id.

The Commission adopted Barton's recommendation on April 23, 2018, stating "the following action was ordered pursuant to [28 C.F.R. §] 2.28(f): Reopen and reschedule for a special reconsideration hearing on the next available docket." The Commission cited Ms. McNeil's unavailability "to exercise her right to participate in the parole hearing associated with the subject-named offender under D.C. Code and the Crime Victims' Rights Act." See ECF No. 1-10, p. 2. A special reconsideration hearing was then held before Hearing Examiner Husk on June 4, 2018. The Hearing Examiner defined the purpose of this hearing:

The primary purpose of this hearing is really for the victim participation, but I am going to have some questions for you myself ... There isn't any new information. I've basically stated why we are doing this hearing—because the victim contacted the Parole Commission after your hearing.

ECF No. 1-14. In summarizing the reconsideration hearing, the Hearing Examiner noted that "the Commission ordered that [Rodgers] be paroled effective 7/23/2018. However that parole grant was pulled back after the deceased victim's mother contacted the USPC and advised of her intent to exercise her right to testify at the hearing. Thus, today's hearing was a special reconsideration hearing for that purpose." ECF No. 1-9, p. 2. At the reconsideration hearing, Ms. McNeil read a letter dated May 29, 2018 into the record. ECF No. 1-22.

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Rodgers also spoke at the reconsideration hearing. He told the Hearing Examiner that he had satisfied his obligations regarding counseling, was continuing to complete his GED, and had found a job working construction. ECF No. 1-9, p. 3. The Hearing Examiner noted Roger's disappointment on being re-incarcerated, but also...