PAUL W. GRIMM, District Judge.
Petitioner Robert Tonkins is a federal prisoner confined at the Federal Correctional Institution ("FCI") in Cumberland, Maryland. He has filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, seeking to remove a warrant issued by the United States Parole Commission ("USPC"). Pet., ECF No. 1; Supp., ECF No. 3. In its response and motion to dismiss, the USPC defends its issuance of the warrant and argues that its execution is properly delayed until Tonkins completes his current term of incarceration. ECF No. 8. There is no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Loc. R. 105.6; see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not necessarily entitled to a hearing). For the reasons stated below, the Petition shall be denied, USPC's motion granted, the case dismissed, and a Certificate of Appealability shall not issue.
Respondent provides the following unopposed outline of Tonkins's criminal history.
Resp. & Mot. 1-2; see also Supp. to Warrant Application, ECF No. 8-3; United States v. Tonkins, Crim. No. PWG-16-53 (D. Md.).
Based on that 2016 arrest, and prior to his sentencing in this Court, the USPC issued a warrant charging Tonkins with violations of the D.C. Code supervised release term.
Respondent states that the warrant was "placed as a detainer while Petitioner served the new federal sentence" imposed in this Court, and insists that Tonkins "is not entitled to have the USPC conduct a supervised release revocation hearing until he completes the intervening sentence, and the warrant is executed." Resp. & Mot. 2, 4; see Warrant Execution Instructions, ECF No. 8-2, at 5 ("If the prisoner is already in the custody of federal, state or local authorities, do not execute the Commission's warrant. Place a detainer and notify the Commission for further instructions."). Tonkins argues that the warrant was executed and therefore, placement of a detainer was improper following his return to federal custody; in his view, he instead is entitled to a parole violation hearing within 90 days of the date of execution of the warrant or as soon as practical. Reply 1, ECF No. 11. Tonkins submits what appears to be an executed warrant (Warrant Return, ECF No. 11-1, at 7), and asserts that on July 26, 2016, immediately after he was sentenced in this Court, the USPC arrested him, detained him in the District of Columbia, and then returned him to FCI-Cumberland to serve the sentence imposed by this Court a few weeks later. Reply 1. Based on Tonkins's Reply and the Warrant Return, on May 11, 2018, I ordered Respondent to show cause why the relief sought should not be granted. ECF No. 12.
Respondent notes that the Warrant itself, as well as the Warrant Execution Instructions accompanying the warrant directed the U.S. Marshals Service not to execute the warrant "if Petitioner was being held in custody on new state or federal charges," absent order by the USPC. Resp. to Show Cause Order 2, ECF No. 13; see Warrant and Warrant Execution Instructions, ECF No. 8-2, at 2, 5. According to Respondent, the Marshals Service mistakenly executed the warrant on July 26, 2016, and corrected the error the following day, July 27, 2016, by re-lodging the warrant as a detainer, thus voiding the execution of the warrant. Resp. to Show Cause Order 2; see July 27, 2016 Email from USPC to U.S. Marshals Service, ECF No. 13-1 ("Our warrant was executed yesterday, 7-26-16 and the subject was taken to DC Jail where he remains. However, the subject was also sentenced to 46 months in the U.S. District Court for the District of Maryland yesterday. Therefore the warrant was executed in error and should be re-lodged as a detainer as he has not yet completed this new sentence. I will void our copy of the executed warrant."); July 27, 2016 Email from USPC to USPO Awkward (noting that "USMS in Baltimore . . . will ensure that [USPC's] warrant is re-lodged as a detainer"; attaching copy of "warrant supplement dated 7-26-16"), ECF No. 13-2.
Respondent correctly outlines the regulatory action permitted the USPC may take in response to an individual's violation of the conditions of supervised release:
Resp. & Mot. 2-3.
As for Tonkins's right to a probable cause hearing, Respondent notes that Tonkins's "current confinement is the result of his new sentence, not the supervised release violation warrant" and argues that in this instance, Tonkins's "conviction for a new federal offense that he committed while on supervised release clearly establishes probable cause to believe that he violated the conditions of supervised release and ends his right to contest the corresponding violation of supervised release at his revocation hearing." Id. at 3 (citing Moody, 429 U.S. at 89; Morrissey v. Brewer, 408 U.S. 471, 490 (1972) (when parolee is convicted of an offense while on parole, the only remaining inquiry is whether release is justified notwithstanding the violation). Indeed, in Moody, the Supreme Court concluded that where, as here, the
429 U.S. at 86 n.7 (quoting Morrisey v. Brewer, 408 U.S. 471, 485 (1972); citing 18 U.S.C. § 4214(b)(1) (1976)). Accordingly, Tonkins is not entitled to a probable cause hearing. See id.
Moreover, the parties agree that Tonkins's right to a supervised release revocation hearing arises when the warrant is executed. See Reply 1; Resp. to Show Cause Order 2. USPC has established that the warrant that was mistakenly executed was voided and re-lodged as a detainer. See Resp. to Show Cause Order 2; July 27, 2016 Email from USPC to U.S. Marshals Service; July 27, 2016 Email from USPC to USPO Awkward. Thus, the proper execution of a warrant that would trigger the requirement of a revocation hearing has not occurred. Although the U.S. Marshals Service mistakenly executed the warrant before it was re-lodged, the USPC correctly notes:
Resp. to Show Cause Order 2-3. Therefore, Tonkins is not yet entitled to a revocation hearing, and his petition is without merit. See Barnard, 89 F.3d at 377-78 (agreeing with the Fifth and Tenth Circuits in adopting this rule); see also Gates v. U.S. Parole Comm'n, No. 08CV779 LO/TCB, 2009 WL 1077288, at *2 (E.D. Va. Apr. 16, 2009) ("Moreover, even if the parole violator warrant in fact was executed simultaneously with the New York arrest warrant on October 27, 1999, that action was taken in direct contravention of the Commission's instructions that its warrant was not to be executed if the `parolee is released on bond [or] . . . if a criminal arrest warrant has been issued for parolee,' Resp. Ex. E, because Gates at that juncture was both a releasee on bond and the subject of a criminal arrest warrant. Therefore, if it did occur, execution of the Commission's warrant in 1999 as a matter of law was void and ineffective. Under such circumstances, Gates had no entitlement to an immediate revocation hearing." (citing Sinclair v. Henman, 986 F.2d 407 (10th Cir. 1993), cert. denied, 510 U.S. 842; Chandler v. Barncastle, 919 F.2d 23 (5th Cir. 1990); McConnell, 896 F.2d 441; Moody, 429 U.S. at 89)).
On June 12, the Court received a letter from Mr. Tonkins, stating that he had just received the Response to the Show Cause Order and noting that USPC first stated that the "warrant was never executed" and then stated that it "was mistakenly executed." ECF No. 14. He asserts that the detainer "hinders [him]" because it prevents his acceptance into "a program to help [him] re-adjust back into society," and he asks that the Court "order the U.S. parol [sic] commission to withdraw this warrant so that [he] can enter the much needed programs to help [him] re-adjust back into society and become a better citizen." Id. Because the warrant was properly lodged as a detainer, as discussed above, I will deny this request.
The placement of the supervised release warrant as a detainer while Tonkins completes his new sentence is within the USPC's broad authority. USPC's motion to dismiss, ECF No. 8, is granted, and habeas corpus relief is denied. Additionally, I decline to issue a certificate of appealability as the claim presented is not one that "deserve[s] encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). A separate Order shall be entered in accordance with this Memorandum Opinion.
