UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT ANDREW REED,

Petitioner,

v. Case No. 1:22-cv-1653 (TNM)

CHRIS WHITMER, et al.,

Respondents.

MEMORANDUM OPINION

A prisoner has convinced himself that the U.S. Parole Commission has no authority over

him. That view has served him poorly. Twice he has been released from prison. And twice he

was sent back for failing to follow the terms of his supervised release. Now, he files another

habeas petition. Like his past ones, his main claim here is that the Parole Commission had no

authority to arrest him or return him to prison. But as before, that claim is meritless. Plus, this

petition is successive. He already raised (and lost) on these issues in past petitions. So this one

is procedurally barred. For both reasons, the Court will deny Reed’s petition.

I.

Robert Andrew Reed was sentenced by the Superior Court of the District of Columbia to

80 months in prison and five years of supervised release for making threats and obstructing

justice. Am. Mot. to Dismiss, Ex. 1, ECF No. 15-1. Years later, Reed was released from prison.

But after he failed to report for supervision, the Parole Commission issued a warrant for his

arrest and sent him back. See Reed v. Cushwa (Cushwa I), No. 20-cv-3524,

, at *1 (D.D.C. June 29, 2021). 1 Displeased, Reed filed a “meritless” habeas petition, which a

judge roundly denied. See

After that stint, Reed was again released. But like before, he never reported for

supervision. So the Parole Commission issued another warrant for his arrest. See Reed v.

Cushwa (Cushwa II), No. 21-cv-2531,

, at *1 (D.D.C. July 8, 2022). Reed

then filed another habeas petition, which another judge “easily dismissed.” See

While that failed habeas petition was pending, the Parole Commission held a revocation

hearing. The hearing officer gave Reed a chance to participate, which Reed refused, and then

recommended that Reed be returned to prison. Am. MTD, Ex. 17 at 2–3, ECF No. 15-17.

Still convinced that the Parole Commission lacked authority over him, Reed filed this

habeas petition. He challenges his last revocation hearing, repeating many of the same

arguments that failed before. Distilled down, Reed’s main claim here is that the Parole

Commission lacked authority to revoke his supervised release. Habeas Pet. at 3, ECF No. 1.

Relatedly, he says that the Parole Commission violated his due process rights, the APA, and his

rights under the Grand Jury Clause.

at 3–5.

As before, Reed’s claims are meritless. More, his petition is successive and thus

procedurally barred.

(a). So the Court will deny it.

II.

Reed titles his motion “In Re: Affidavit Motion to Vacate Correct/ or Set-Aside Sentence

Pursuant to Fed. Civ. R. P. §2255/§2241.” And the Government assumes that Reed’s filing is a

1 The Parole Commission oversees “supervised release imposed by the Superior Court of the District of Columbia.” Smallwood v. USPC,

(D.D.C. 2011) (citing D.C. Code §§ 24–133(c)(2), 24–403.01(b)(6)). 2 habeas petition under

. But both parties are wrong. Reed’s motion is best read

as a habeas petition under

.

Reed was sentenced by the Superior Court. Am. MTD, Ex. 1. So, for habeas purposes,

he is treated like a state prisoner and thus cannot rely on § 2255, which is reserved federal

prisoners. See

; Gorbey v. United States,

(D.D.C. 2014)

(“D.C. local courts are treated as ‘state’ courts for purposes of federal habeas-corpus

jurisdiction.”). Nor is this a § 2241 petition as the Government suggests. Courts in this district

(and others) construe § 2241 petitions from state-court prisoners as § 2254 petitions. See, e.g.,

Peoples v. Schultz,

, 178–79 (D.D.C. 2011) (“The Court thus finds that the

petition before it is properly one for § 2254 review and treats it as such.”); In re Wright,

(4th Cir. 2016) (describing this as the majority rule); González–Fuentes v. Molina,

, 875–76 n.9 (1st Cir. 2010) (same). The Court will do likewise here.

III.

The Government offers two reasons why Reed’s petition is dead on arrival. First, it says

that he filed in the wrong district and that this Court thus lacks jurisdiction. Second, it claims

that his petition just rehashes old, rejected claims, and is thus successive. The Court disagrees

with the first point; it has jurisdiction. But it agrees with the second; Reed’s petition is

successive. So the Court will deny it.

First, jurisdiction. The Government argues that the Court lacks jurisdiction over Reed’s

claim based on Rumsfeld v. Padilla,

(2004). There, the Supreme Court held that

“the general rule [is] that for core habeas petitions challenging present physical confinement,

jurisdiction lies in only one district: the district of confinement.”

(emphasis added).

But as Padilla notes, there are “explicit exceptions to th[is] rule in certain circumstances.”

3 One of those exceptions applies here: Prisoners “serving a state criminal sentence in a

State that contains more than one federal district” may also file petitions in the district court

where they were sentenced.

(citing

(d)). Reed is detained in Pennsylvania,

which has more than one federal district. And Reed was sentenced here in the District of

Columbia. So that exception applies, and the Court may hear his claim. See, e.g., Ramirez v.

United States, No. 13-cv-901,

, at *1 (D.D.C. June 14, 2013) (applying

§ 2241(d) to § 2254 claim); Williams v. United States, No. 12-cv-1480,

, at *1

(D.D.C. Sept. 7, 2012) (same).

Next, successive petitions. Reed has already filed two habeas petitions challenging the

Parole Commission’s authority, both of which were denied by other judges in this district. Those

“previous rulings,” the Government says, bar the Court from hearing this case because of the

habeas rule against successive habeas petitions. Am. MTD at 11 (citing

(a)).

That rule limits prisoners’ ability to challenge their detention “if it appears that the legality of

such detention” has already been decided by a judge.

(a). Reed’s petition is

successive if “the same claims [were] raised and adjudicated on the merits in [his] prior habeas

proceedings.” Sweeney v. USPC,

(D.D.C. 2016) (cleaned up).

The Court finds that this petition is successive. Since his initial release, Reed has twice

challenged the Parole Commission’s authority to issue warrants or revoke him. In his first

petition, “Reed’s most sustained contention [was] that certain exercises of authority by . . . the

Parole Commission were invalid because he never signed a contract granting . . . [it] power over

him.” Cushwa I,

, at *2. In his second, Reed attacked a Parole Commission

warrant “because it was issued by the [Parole Commission] and not a judicial officer” and

because “the [Parole Commission] lacks authority to ‘hold a trial like judicial procedure’ in

4 violation of the” APA. Cushwa II,

, at *1 (quoting Reed’s Petition). Both

petitions were denied on the merits. See Cushwa I,

, at *1; Cushwa II,

, at *1.

True, both petitions challenged different specific actions by the Parole Commission. The

first was partially aimed at a 2018 warrant. See Cushwa I,

, at *2. The second

was partially aimed at a 2020 warrant. See Cushwa II,

, at *1. And this

petition partially challenges a 2022 revocation hearing. But still, the main thrust of this petition

was considered and resolved in Reed’s last two petitions: the Parole Commission may issue

warrants and revoke supervised release. See Cushwa I,

, at *2 (noting that the

Parole Commission can revoke supervised release and that this does not violate the separation of

powers); Cushwa II,

, at *1 (same). So “the same claims [were] raised and

adjudicated on the merits in [his] prior habeas proceedings.” Sweeney,

(cleaned up). And because of that, “the legality of [his] detention has been determined by a

judge,” and his petition is successive.

(a).

Still, there is one last wrinkle. Reed filed this petition while his second petition was

pending. In such cases, some courts would likely read this petition as a motion to amend the

second petition and thus not successive. See, e.g., Woods v. Carey,

(9th Cir.

2008) (When a second § 2254 petition is filed while a first petition is still pending, the second

petition should be treated as a motion to amend.). But even if that is right, this petition would

still be successive of Reed’s first.

And whether or not “the petition should be dismissed as successive . . . it is clearly

meritless.” Taylor v. USPC,

(D.D.C. 2012). Under § 2254, the Court

may grant Reed’s petition only if “he is in custody in violation of the Constitution or laws or

5 treaties of the United States.”

(a). The Court agrees with the Government that

the Parole Commission violated no federal law and will thus deny Reed’s petition. Am. MTD at

8–9, 12–13.

IV.

On to the merits. Like one of Reed’s past petitions, this one is “best described as a grab-

bag of creative but plainly meritless legal arguments.” Cushwa I,

, at *2.

Reed claims that his Parole Commission hearing violated the separation of powers, the Grand

Jury Clause, his due process rights, and the APA. But none of these claims support his release.

Separation of powers. Reed first charges that the revocation hearing violated the

separation of powers. Not so. The Parole Commission may lawfully return supervised-release

violators to prison. As another judge in this district explained:

If a person serving a term of supervised release “is alleged to have violated the conditions of his release,”

(a), the USPC may “[i]ssue a warrant for the apprehension and return of the releasee to custody,”

(a)(2). If the USPC “finds by a preponderance of the evidence that the releasee has violated one or more conditions of supervised release, the [USPC] may ... [r]evoke the term of supervised release,”

(a), and also may “impose[ ] a new term of imprisonment that is less than the applicable maximum term of imprisonment authorized by law,”

(b).

Smallwood v. USPC,

(D.D.C. 2011) (alterations in original). Such

proceedings are administrative, rather than “part of a criminal prosecution.”

Because of that,

the Parole Commission “exercises no judicial function, and its decisions do not violate the

separation of powers doctrine.”

(collecting cases); see also Cushwa I,

, at

*2 (finding same on Reed’s similar habeas petition).

Grand Jury Clause. For these same reasons, Reed’s revocation hearing did not violate

the Fifth Amendment’s Grand Jury Clause. Pet. at 5. Reed had already been convicted. And

thus, he need not have been charged with a new crime before he could be returned to prison. See

6 Morrison v. USPC,

(D.D.C. 2014) (The Parole Commission “is not

required to wait for a new conviction to revoke a term of supervised release.”).

Due Process. Reed’s due process claim fails as well. Reed says that the Parole

Commission violated his due process rights because it “never provided [him] with the

assessment of the charges” against him. Pet. at 4. This, he explains, must be “executed by the

responsible party under the affidavit sworn true correct certain and complete with the stated

commercial liability risked . . . and swearing to the accuracy relevance contractual validity and

verifiability of all allegations make and the exactitude of the sum certain amount of the

assessment.”

The Court knows of no such requirement.

Besides, Reed had a probable cause hearing in which he refused to cooperate and then a

revocation hearing where he did the same. Am. MTD, Ex. 17 at 1–4. And his petition shows

that, at a minimum, he knows how he violated his supervised release. See Pet. at 3 (claiming that

the Parole Commission lacked jurisdiction to arrest and return him to prison “for failure to report

for supervision”).

APA. Reed also insists that the Parole Commission violated the APA. But he says little

about how it did so. His main claim seems to be that the Parole Commission is “not a real

court.” Pet. at 5. But there is nothing wrong with that. See Smallwood,

(noting supervised-release proceedings are “administrative matters” that “do not violate the

separation of powers.”). And it certainly does not make the revocation hearing “arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law.” Pet. at 5 (quoting

(2)(A)).

Nor does the Court see any other reason why the Parole Commission may have violated

the APA. It held a revocation hearing. Am. MTD, Ex. 17 at 2. And Reed chose, as he had in

7 the past, not to participate.

Instead, he repeated his past claims that the Parole Commission

lacked authority over him, claims that this Court now rejects for a third time. Id.; see Cushwa I,

, at *1; Cushwa II,

, at *1. So the Parole Commission did

not violate the APA.

V.

Reed’s petition is successive, so the Court will deny it.

(a). But even if

it is not successive, it is meritless. And thus the Court denies it on those grounds as well. Reed

has not shown that “he is in custody in violation of the Constitution or laws or treaties of the

United States.”

(a).

A separate Order will issue today.

2023.04.17 15:37:19 -04'00' _____________________________ Dated: April 17, 2023 TREVOR N. McFADDEN, U.S.D.J.

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