Opinion
9:99-CV-1330 (FJS)(GLS)
February 13, 2001
FOR THE PETITIONER: BRIAN HOYLE, Petitioner, Pro Se, FCI Ray Brook, Ray Brook, NY.
FOR THE RESPONDENTS: HON. DANIEL J. FRENCH, U.S. Attorney, OF COUNSEL: CHARLES E. ROBERTS, ESQ. Assistant U.S. Attorney, Syracuse, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Brian Hoyle ("Hoyle") commenced this action pursuant to 28 U.S.C. § 2241 on August 23, 1999. Docket No. 1. This court directed the respondents to respond to the petition, and on November 23, 1999, a motion to dismiss was filed, Docket No. 7, to which Hoyle replied. Docket No. 10.
In their motion, respondents argue that because Hoyle's claims are "grounded on two hypothetical, speculative events that have not occurred," his petition "is not ripe for review and should be dismissed." Docket No. 9 at 2-3. Hoyle argues that his petition should be granted.
II. Discussion
A. Prior Proceedings
Hoyle pled guilty to possessing with intent to distribute cocaine, on June 10, 1987. He was sentenced to a five year term of imprisonment and three years of special parole. Pet. at 3. He contends that this three year period of special parole commenced on June 8, 1992, and was scheduled to terminate on June 7, 1995. Id. and attached Ex. J.
A court reviewing a motion to dismiss may consider documents attached to the pleadings, as well as documents outside the pleadings that are integral to or relied upon by the petitioner in preparing the pleadings. See International Audiotex Network, Inc. v. American Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).
On May 17, 1995, the United States Parole Commission ("Commission") issued a parole violator arrest warrant ("Warrant") which alleged that Hoyle violated the conditions of his release by committing the crime of conspiracy to commit extortion. Id., Ex. B. Hoyle pled guilty to this charge on May 1, 1998, which conviction was affirmed. United States v. Hoyle, ___ F.3d ___, 2001 WL 8577 (1st Cir. Jan. 8, 2001) ("extortion conviction").
The purpose of a warrant is to restore the individual to custody and advise him of the purpose of his re-incarceration. U.S. v. Basso, 632 F.2d 1007, 1013 n. 9 (2nd Cir. 1980), cert. denied, 450 U.S. 965 (1981).
On August 18, 1998, the Commission advised the Warden at Ray Brook to provide Hoyle with a copy of the warrant and stated that it would conduct a dispositional review of the case to determine whether the warrant should remain as a detainer. Id., Ex. C. On September 23, 1998, the warrant was filed as a detainer. Id., Ex. D. Hoyle submitted a statement to the Commission for its consideration, Id. at Ex. F, in which he noted that he had received a 151 month prison sentence for the extortion conviction, and that the Commission should take this fact into consideration by not adding to his sentence, by executing the detainer. Id. On November 2, 1998, the Commission issued a Notice of Action concerning the warrant ("Notice"). This Notice, which provided that the Commission had "carefully examined all of the information at its disposal" concerning the warrant, ordered as follows:
A special term parole violator whose parole is revoked receives no credit for time spent on parole. Id. at Ex. A.
Withdraw warrant dated 5/17/95. Withdrawal of this warrant is conditioned upon service of the sentence currently in effect. If such sentence is vacated or reduced, the warrant shall be reinstated and a new dispositional review ordered.
Id., Ex. G. This Notice noted the decision of the Commission was not appealable. Id.
In his petition, Hoyle alleges that the Commission must issue a Certificate of Discharge relating to the warrant. He contends that the Commission may not "conditionally withdraw" a warrant, and that conditioning the withdrawal of the warrant on Hoyle completing the full term of his sentence is improper because this condition violates his constitutional rights, including his rights under the First and Sixth Amendments to the U.S. Constitution, as well as his rights to due process and equal protection of the law. Docket No. 1 at 4; Docket No. 2 at 3-4.
Respondent contends this action is not justiciable because Hoyle's claim "is grounded on two speculative events that have not occurred: reduction or vacation of his new sentence, and reinstatement of the Commission's warrant." Docket No. 9. In reply, Hoyle reiterates his belief that the Commission must "issue Hoyle a Certificate of Discharge terminating [the Commission's] present or future control over Hoyle." Docket No. 10 at 5.
B. Merits of Petition
1. Ripeness of Petition
In discussing the concept of ripeness, the Second Circuit has stated:
Ripeness is a jurisdictional prerequisite to the adjudication of a claim. Fed. Election Comm'n v. Cent. Long Island Tax Reform Immediately Comm., 616 F.2d 45, 51 (2d Cir. 1980).
[The r]ipeness doctrine reflects the principle that "courts should decide only 'a real, substantial controversy,' not a mere hypothetical question." 13A C. Wright, A. Miller E. Cooper, Federal Practice Procedure § 3532.2, at 137 (2d ed. 1984). Courts will find a case to lack ripeness when it "involves uncertain and contingent future events that may not occur as anticipated, or indeed may not occur at all." Id. at 141; see also, Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (The ripeness doctrine's basic rationale "'is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.'") (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), overruled on other grounds, Califano v. Sanders, 430 U.S. 99 (1977)).
Amsat Cable v. Cablevision, 6 F.3d 867, 872 (2d Cir. 1993). The Court continued:
In determining whether a matter is ripe for decision, we look, first, to whether the issue is fit for review and, second, to the hardship to the parties of withholding review. See Abbott Labs, 387 U.S. at 149; In re Drexel Burnham Lambert Group Inc., 995 F.2d 1138, 1146 (2d Cir. 1993).
Amsat Cable, 6 F.3d at 872.
This action is not ripe for judicial review. Claims are not "fit for review" where the rights claimed to be violated may be "clarified by further factual development." New York State Bar Ass'n v. Reno, 999 F. Supp. 710, 714 (N.D.N.Y. 1998) (McAvoy, C.J.) (citation omitted). In this case, further factual development would clarify the claimed violation of Hoyle's rights. According to the terms of the Notice, it would not consider reinstating the warrant unless Hoyle's sentence on the extortion conviction is vacated or reduced. As noted above, the Third Circuit recently affirmed this conviction. Hoyle, ___ F.3d ___, 2001 WL 8577. Thus, unless and until Hoyle prevails upon a motion pursuant to 28 U.S.C. § 2255 concerning the extortion conviction, the Commission cannot seek to reinstate the warrant.
Moreover, Hoyle cannot demonstrate any hardship if the court were to refrain from adjudicating this dispute until such time as his sentence were vacated or reduced. If Hoyle were to succeed in a collateral challenge to the extortion conviction, he could then consider filing a second § 2241 application challenging the propriety of the conditions in the Notice. In light of the above, the court concludes that this matter is not ripe and should be dismissed on this basis. However, because the petition should also be dismissed on substantive grounds, it considers the merits of the claims.
The gatekeeping provisions of §§ 2244 and 2255 which limit the number of habeas petitions that may be filed, only apply to second and successive applications for relief under 28 U.S.C. § 2254 and 2255, and not to applications for habeas corpus relief under 28 U.S.C. § 2241. See 28 U.S.C. § 2244; United States v. Barrett, 178 F.3d 34, 42 (1st Cir. 1999); Valona v. United States, 138 F.3d 693, 694-695 (7th Cir. 1998); see also, Felker v. Turpin, 518 U.S. 651, 658 (1996) (gatekeeping provisions do not apply to § 2241 habeas corpus petitions that may be filed as original actions in Supreme Court).
2. Substance of Petition
Construing his pro se submissions liberally, Hoyle seems to argue that: (i) no conditions may be placed on the withdrawal of a warrant generally; and, (ii) the specific condition imposed on the removal of the warrant — that Hoyle serve the full sentence — is unconstitutional.
(i) Conditional Withdrawal in General
The propriety of the Commission's decision to conditionally withdraw a parole violation warrant is governed, in part, by the Parole Commission and Reorganization Act of 1976, 18 U.S.C. § 4201-4218 (1976) (the "Act") which codified parole laws until it was repealed on November 1, 1987. The Act requires that the Commission issue a summons or warrant for a parole violation "as soon as practicable after discovery of the alleged violation, except when delay is deemed necessary." 18 U.S.C. § 4213(b) (1976). The Act further notes that "[i]mprisonment in an institution shall not be deemed grounds for delay of such issuance, except that in the case of any parolee charged with a criminal offense, issuance of a summons or warrant may be suspended pending disposition of the charge." Id.
Since the offense for which parole was granted in this case occurred prior to the revocation of this Act, the provisions of the Act govern.
Although the Act does not explicitly authorize the Commission to issue and execute a warrant, withdraw it, and then reissue the same warrant, courts have held that the Commission has this power.
For example, in Franklin v. Fenton, 642 F.2d 760 (3rd Cir. 1980), the court interpreted the parole statutes to permit re-issuance of a withdrawn warrant. Id. at 763. In doing so, the court found that the Act's list of statutory options regarding parole revocation was not exhaustive. Additionally, in Turner v. United States Parole Comm'n, 934 F.2d 254 (10th Cir.), cert. denied, 502 U.S. 885 (1991), the court held that "Congress intended that the Commission exercise broad discretion utilizing a variety of tools to ensure that parole decisions are based on consideration of all relevant information." Id. at 259. In finding that the issuance of a second warrant falls within Congress's intended scope of authority concerning the Commission, the Turner court held:
While the regulation explicitly grants authority to delay both the issuance and execution of the warrant for parolees charged with a crime, neither requires that the Commission take one of the listed actions. Rather, the provisions are permissive — the Commission "may" delay issuance of the warrant or issue it and then hold it in abeyance or place a detainer. See Moody [v. Daggett], 429 U.S. 78 [1976]. The enumerated options should not be read to limit the Parole Commission's discretion to take other necessary measures.
Id. at 258-59 (emphasis added).
Since the Commission has the discretionary authority to take necessary measures to implement the parole laws, this court must consider whether the action it took concerning Hoyle was proper.
(ii) Terms of Conditional Withdrawal
The determination to conditionally withdraw the warrant was based, in part, on Hoyle's own representations that he was serving "151 month sentence" and that he did not want the Commission "to add to my prison sentence" by exercising the detainer after the completion of his term in prison. Docket No. 2, Ex. F. Based upon this statement and other factors, the Commission decided to conditionally withdraw the warrant, presumably because it believed that after the competition of his 151 month term, he need not serve three additional years in prison due to his parole violation. Thus, the condition placed on the withdrawal was entirely reasonable.
Moreover, Hoyle's contention that the condition was improper because it would require him to forego his constitutional right to collaterally challenge the conviction is specious. Plea agreements typically contain provisions requiring criminal defendants to waive their constitutional right to challenge their conviction as part of the plea agreement. Indeed, Hoyle waived numerous rights, including those under the First and Second Amendments to the Constitution, by accepting the terms of his parole. Id. at Ex. J(2) (agreeing to limitations concerning the individuals with whom Hoyle could associate and his right to possess a firearm).
Determinations by the Commission may only be overturned if they are arbitrary or capricious, or an abuse of discretion, Baker v. McCall, 543 F. Supp. 498, 499 (S.D.N.Y. 1981), aff'd 697 F.2d 287 (2d Cir. 1982). Since Hoyle has not established these factors, his petition must be denied for this reason as well.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Hoyle's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation upon the parties by regular mail, and it is further
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.