ELLEN LIPTON HOLLANDER, District Judge.
On November 21, 2011, Tony Turnage initiated an action against the United States Parole Commission, respondent, pursuant to 28 U.S.C. § 2241, as a petition for habeas corpus relief. ECF 1.
On January 4, 2013, respondent filed a motion for summary judgment (ECF 26) and supporting memorandum of law (ECF 26-1), asserting that the petition for habeas corpus relief should be denied. By Order dated July 23, 2013, I denied respondent's summary judgment motion, without prejudice, and subject to renewal upon supplementation. ECF 39. Respondent filed a supplement to its motion for summary judgment on August 20, 2013 (ECF 43), which was further supplemented on September 5, 2013 (ECF 45) (collectively, the "Motion").
Respondent concedes that the United States Parole Commission (the "Commission") failed to commence its dispositional review of the detainer within its regulatory time-frame. ECF 34 at 4. Nevertheless, the Commission argues that the petition is subject to dismissal, because the proper remedy for a delayed hearing is not habeas relief, but rather mandamus. See ECF 26-1 at 8. Further, respondent maintains that Turnage's due process rights have not been abridged. See id. In addition, the Commission asserts that Turnage's petition is moot, as the only relief to which he is entitled, the conduct of a hearing, has now occurred.
Turnage's ongoing responses to respondent's various pleadings have been considered
At issue is the Commission warrant of January 8, 2010, charging Turnage with violation of the conditions of his parole based on his arrest by Maryland authorities in October 2009. Turnage's lengthy history of incarcerations, parole, and recidivism leading to parole revocation directly bears on the matter under consideration.
Turnage was sentenced by the United States District Court for the District of Maryland on December 3, 1987, to a 15-year term of imprisonment for robbery and larceny of a savings and loan and aiding and abetting. See United States v. Turnage, Criminal No. S-87-0439 (D. Md.); see also Judgment and Commitment Order, ECF 26-2 at 2; Sentence Monitoring Computation Data, ECF 26-2 at 3-7. He was paroled on December 22, 1993, and was to remain under supervision until August 25, 2002. Certificate of Parole, ECF 26-2 at 8.
Turnage was in state custody from July 22, 1994 to April 4, 1995, following an assault and battery conviction, and again from June 25, 1996 to October 18, 1997, following a burglary conviction, for a period totaling just over 24 months in state custody. See Notice of Action on Appeal, ECF 26-2 at 14. The Commission executed a warrant for violation of parole on April 9, 1998, and Turnage was taken into custody on that warrant on May 7, 1998. Warrant, ECF 26-2 at 12; Warrant for Return, ECF 26-2 at 13. By notice of action dated December 8, 1998, the Commission revoked Turnage's parole, ordered that he receive no credit for time spent on parole (i.e., "street time"), and required that he serve 60 months of incarceration before returning to presumptive parole status on February 1, 2002. ECF 26-2 at 10.
On appeal, the Commission's National Appeals Board awarded Turnage the periods of "street time" which were forfeited from December 22, 1993 (date of federal parole) to July 21, 1994, from April 4, 1995 (first release from state custody) to June 25, 1996, and from October 18, 1997 (second release from state custody) to May 7, 1998 (arrest on federal parole violation warrant). The National Appeals Board clarified these orders by notice of action on appeal dated March 17, 1999, and advanced the presumptive re-parole date after 60 months of incarceration from the date originally ordered (February 1, 2002) to May 7, 2001. ECF 26-2 at 14.
Turnage was re-paroled on August 6, 2001, and his parole supervision period was extended until January 7, 2007.
Turnage was re-paroled on July 1, 2007, to remain under supervision until May 5, 2010. Certificate of Parole, ECF 26-2 at 28. Of import here, on December 23, 2009, the Commission was informed that Turnage had been arrested by Maryland authorities on several charges, including armed robbery, robbery, assault with a dangerous weapon, assault, and theft.
On March 6, 2012, the Commission informed the Warden at MCI-H that it was commencing a dispositional review of its detainer pursuant to 18 U.S.C. § 4214(b)(1), and enclosed documents to be given to Turnage, including a Notice of Pending Dispositional Review on the Record, and a Form CJA-22 to request assistance of counsel for the dispositional review. ECF 26-2 at 35-43. The Notice of Pending Dispositional Review on the Record informed Turnage that the Commission would conduct a dispositional review of the detainer pursuant to 28 C.F.R. § 2.47. ECF 26-2 at 36.
By notice of action dated October 11, 2012, the Commission informed Turnage that its detainer would stand. ECF 26-2 at 53. The notice of action instructed the United States Marshals Service to notify the Commission when its warrant was executed, and to return the executed warrant to the Commission. Id. Turnage completed his Maryland sentence, was taken into federal custody on the parole violation warrant on May 16, 2013, and was committed to the District of Columbia Correctional Treatment Facility. See ECF 43-2.
On May 30, 2013, the Commission requested the BOP to "promptly" designate Turnage's transfer to a federal institution so that he could receive a revocation hearing within 90 days. ECF 43-3. That same day, the Commission sent Turnage a probable cause letter indicating a parole revocation hearing would be scheduled based on the Maryland armed robbery, robbery, theft, assault, and weapons charges. ECF 43-4 at 1-2.
A parole revocation hearing scheduled at the Federal Detention Center in Philadelphia, Pennsylvania for July 16, 2013, was postponed when Turnage's attorney did not appear. ECF 43-6. At the rescheduled parole revocation hearing on August 14, 2013, Turnage was represented by counsel. See ECF 43-8 at 1. The hearing examiner recommended revocation of parole, that no credit be given for time on parole, and that Turnage remain incarcerated until the expiration of his sentence. Id. at 2. Under this recommendation, Turnage would serve approximately 68 months in prison, including credit towards the guidelines of 45 months for time spent in state custody, with a re-parole guideline range of 60 to 72 months of incarceration. See id. On August 30, 2013, the Commission concurred. ECF 45 at 2. Turnage's estimated release date has been calculated as April 13, 2015. ECF 43-7 at 5.
Under the Sentencing Reform Act of 1984 ("SRA"), federal parole was abolished and the Commission was to be phased out over time. See Bledsoe v. United States, 384 F.3d 1232, 1233 (10th Cir. 2004). The Commission was to be kept in existence for five years after the effective date of the SRA, in order to process inmates whose convictions predated the SRA and who would still be incarcerated by that date. The Commission's operation has been extended multiple times since the effective date of the SRA, most recently in 2011. See id.; Bowers v. Keller, 651 F.3d 1277, 1281 & n.7 (11th Cir. 2011); United States Parole Commission Extension Act of 2011, Pub.L. No. 112-44, 125 Stat. 532. Statutes relating to the Commission, 18 U.S.C. §§ 4201-4218, were repealed but remain in effect for prisoners, like Turnage, who are under the authority of the Commission. See Bledsoe, 384 F.3d at 1233-34. Turnage's claims shall therefore be examined in light of statutory law, case law, and regulations relating to the Commission and federal parole.
Turnage contends that his federal sentence expired in 2010. See Ex. B, ECF 8 at 5; ECF 33. He suggests that because the warrant was not acted upon prior to that date, the Commission's subsequent actions are invalid and he is entitled to immediate release from federal custody.
It is true that Turnage's sentence would have expired on or about May 5, 2010, had Turnage successfully completed parole supervision. See Certificate of Parole, ECF 26-2 at 28. Such success, however, was never realized. In October 2009, Turnage was charged in the Circuit Court for Baltimore City and later convicted of second-degree assault and theft, resulting in a 12-year sentence.
Turnage argues in the alternative that his sentence expired in full prior to the issuance of the detainer because he "is or was entitled to statutory good time, which would or should have made this 15 year sentence complete." ECF 33 at 1-2. As noted by respondent, Turnage misunderstands the purpose of "good time credits," thus rendering his computation of total sentence time incorrect. Good time credits do not commute the length of a sentence, but rather are only used to determine the date on which a prisoner, not having been earlier released on parole, must be released "as if released on parole" by operation of law under 18 U.S.C. § 4164. Once a prisoner has been paroled, good time credits have no further function. Pursuant to regulation,
28 C.F.R. § 2.35(b); see also Boniface v. Carlson, 881 F.2d 669, 671 (9th Cir. 1989); Bailey v. Southerland, 821 F.2d 277, 278-79 (5th Cir. 1987).
Turnage's claim that he was entitled to a prompt parole revocation hearing upon request while serving his Maryland sentence likewise is unavailing.
The Supreme Court held that there was no requirement for an immediate hearing before the defendant was taken into custody as a parole violator. Id. at 86. The Court further concluded that the defendant did not have the right to force the immediate decision of the Board, and that a ten-year delay in execution of the warrant would not violate his due process rights. Id. at 87-88. Thus, pursuant to Moody, until an alleged violator is in custody pursuant to the Commission's warrant, he or she is not entitled to the various procedural rights, including a revocation hearing.
Turnage attempts to distinguish his case from Moody, arguing that the Board "issued, but
At the time Turnage filed the instant petition, he was still serving his newly imposed Maryland sentence for crimes committed while on parole, and the Commission's parole revocation warrant remained lodged as a detainer to be executed following Turnage's release from state custody. Turnage had no right to a revocation hearing until such time as he completed his Maryland sentence and was taken into federal custody pursuant to an executed retake warrant. See 28 C.F.R. § 2.47(a) ("When a parolee is serving a new sentence in a federal, state, or local institution, a parole violation warrant may be placed against him as a detainer.").
Turnage claims that he had a regulatory right to a revocation hearing upon completion of 24 months' imprisonment for a state conviction, pursuant to 28 C.F.R. § 2.47(b)(1) and Heath v. U.S. Parole Commission, 788 F.2d 85, 90-91 (2d Cir. 1986). There is no basis for this claim. Subsequent to Heath, the Commission amended its regulation such that the current regulation does not provide that a prisoner serving a new state sentence is entitled to a revocation hearing. See 28 C.F.R. § 2.47(a)(2). To the contrary, it provides that, for a prisoner serving a new state sentence, the Commission shall review the detainer warrant "not later than 180 days following notification to the Commission" of placement of the detainer. Id. The rule did not mandate a revocation hearing while serving a new sentence in state custody even though Turnage committed his federal offense in 1987. Rather, the rule gave the Regional Commissioner the option to order a revocation hearing at the state institution or, alternatively, to "let the detainer stand." Compare 28 C.F.R. § 2.47(c) (1987 ed.) with 28 C.F.R. § 2.47(c) (1986 ed.).
Here, the Commission opted for the latter. At no time during the pendency of his federal sentence did Turnage have a regulatory right to a revocation hearing after serving 24 months on his Maryland sentence.
Turnage claims he is entitled to credit towards his federal sentence for the time spent in state custody, pursuant to 28 C.F.R. § 2.21(c). ECF 33 at 5. The regulation merely provides: "Time served on a new state or federal sentence shall be counted as time in custody
Having determined that the warrant and detainer were validly issued, I next examine whether Turnage's procedural due process rights were afforded with regard to execution of the detainer. The Commission's regulations provide that, if a prisoner is serving a new state sentence, the Commission will review the detainer "not later than 180 days following notification to the Commission of such placement [of the warrant as a detainer]." 28 C.F.R. § 2.47(a)(2).
Here, the warrant was issued as a detainer on January 8, 2010, and Turnage was promptly provided notification of its existence and that if convicted of a new state offense, he could "not receive sentence credit for the time [he] spent on parole." ECF 26-2 at 30, 34. On October 21, 2011, one month prior to instituting the instant action, Turnage wrote the Commission concerning disposition of the detainer. Turnage was informed on March 6, 2012, that the Commission would conduct a disposition review of his case pursuant to 28 C.F.R. § 2.47. Id. at 45. The Commission then contacted this court that Turnage had requested counsel to assist in the completion of his application for a disposition review that would be scheduled within 180 days. Id. at 46.
The Commission's review of the detainer occurred on October 11, 2012, more than one month beyond the 180 day period provided by regulation. Turnage does not detail any prejudice suffered as a result of this brief delay. Indeed, he was taken into federal custody immediately following the completion of his Maryland sentence and ultimately given guideline credit for time spent in state custody, and is due to be released in little more than one year. ECF 43-7 at 5; ECF 43-8 at 1-2; ECF 45 at 1.
Respondent does not contest that Turnage's disposition review was not timely, ECF 34 at 4, but instead argues that the delay does not affect the validity of the detainer and the subsequent revocation of Turnage's parole. Turnage's argument that the delay "prolonged & extended" his federal sentence, ECF 41 at 2, is specious, given that the detainer was lodged while he was completing a state sentence, and Turnage was given reparole guideline credit for time served on that sentence.
To the extent that this action may be construed as a request for mandamus relief under 28 U.S.C. § 2241, the outcome advocated by respondent stands. Any claim Turnage may have regarding due process associated with the delay in commencing disposition review of the detainer is moot, as he has now received the only remedy to which the regulations entitle him: review of the detainer by the Commission. See Heath, 788 F.2d at 88-90 (appropriate remedy for late dispositional review is mandamus to compel review, not habeas corpus); Sutherland v McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (mandamus, not habeas relief, is appropriate remedy for procedural error by Commission). It is not apparent whether Turnage raised the validity of the detainer at his revocation hearing; that issue, however, is not before this Court.
Having determined that Turnage is not entitled to habeas corpus or mandamus relief, I must now examine whether he is entitled to a certificate of appealability. A certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U. S.C. § 2253(c)(2). The petitioner "must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Tennard v. Dretke, 542 U.S. 274, 282 (2004) (citation and internal quotation marks omitted), or that "the issues presented are adequate to deserve encouragement to proceed further," Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Such a showing is not found here.
Accordingly, a separate Order shall be entered dismissing the petition, denying a certificate of appealability, and closing this case.
