Opinion
No. 3:02-CV-1106-R
February 3, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an Order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. Factual background
Petitioner has filed a habeas corpus petition pursuant to 28 U.S.C. § 2241. Petitioner is an inmate in the federal prison system. Respondent is the United States Parole Commission ("Commission").
On September 17, 1984, Petitioner pled guilty to bank robbery in the United States District Court for the District of Kansas. The Court imposed a 20-year prison sentence under 18 U.S.C. § 4205(a). On December 4, 1995, Petitioner was mandatorily released pursuant to 18 U.S.C. § 4164 and placed on mandatory release supervision until June 14, 2003.
On August 23, 1996, the Parole Commission revoked Petitioner's mandatory release for administrative and criminal violations of his parole. Petitioner was re-paroled to supervision in the District of Kansas with a full term expiration date of December 11, 2003.
On April 27, 1998, the Commission again revoked Petitioner's parole for administrative and criminal violations of his release. On September 13, 1999, Petitioner was released to supervision, with a sentence expiration date of April 24, 2004. Petitioner subsequently violated the conditions of his parole and was revoked. On October 24, 2001, Petitioner was again released to supervision with a sentence expiration date of July 21, 2004.
On July 25, 2002, Petitioner's probation office informed the Commission that Petitioner had failed to abide by the conditions of his parole. On February 1, 2002, the Commission issued a violator warrant for Petitioner. On May 9, 2002, the U.S. Marshall's Service informed the Commission that the violator warrant had been executed by Petitioner's arrest on February 19, 2002, in the Northern District of Texas.
Petitioner argues that he did not receive a timely preliminary interview and a timely revocation hearing regarding his arrest on February 19, 2002, in violation of 18 U.S.C. § 4214. Petitioner argues, therefore, that he was denied due process and that his revocation is unlawful.
II. Discussion
Petitioner argues that both his preliminary interview and his parole revocation hearing were untimely, resulting in a violation of due process. Respondent admits that the preliminary interview and revocation hearing were not timely, but argues that the remedy is to have a revocation hearing rather than granting habeas corpus relief. Respondent also argues that it is currently working with Petitioner's attorney to schedule the revocation hearing.
A parolee arrested pursuant to a parole violator warrant is entitled to a preliminary interview "without unnecessary delay" to determine whether there is probable cause for the charged parole violations. 18 U.S.C. § 4214(a)(1)(A) (1984); see also Morrissey v. Brewer, 408 U.S. 471, 485 (1972) ("[D]ue process would seem to require that some minimal inquiry be conducted . . . as promptly as convenient after arrest."). Assuming that a preliminary hearing was not promptly conducted, "a due process violation occurs only when the [the parolee] establishes" that the delay "`was both unreasonable and prejudicial.'" Vargas v. United States Parole Comm'n, 8965 F.2d 191, 194 (9th Cir. 1988) (quoting Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983)).
Likewise, under 18 U.S.C. § 4214(c) the Parole Commission must conduct parole revocation hearings within ninety days of arrest. Petitioner therefore argues that because his parole revocation hearing was not held within ninety days, the revocation process is unlawful. The Fifth Circuit has held, however, that to be entitled to habeas corpus relief, a petitioner must show that he was actually prejudiced by the unreasonable delay. See Villarreal v. United States Parole Comm'n, 985 F.2d 835, 837 (5th Cir. 1993) (citing Frick v. Quinlin, 631 F.2d 37, 39 (5th Cir. 1980 ("In order to obtain judicial relief the parolee must show that the delay was both unreasonable and prejudicial.").
In this case, Petitioner argues that he has been prejudiced by the delay in his preliminary interview and revocation hearing. Petitioner states he has been denied the "safeguards in securing his exculpatory or favorable evidence." Petitioner's Rebuttal p. 2. Petitioner, however, has failed to state what evidence he would have presented if the hearings had been timely and he has failed to state how such evidence has now become compromised. Petitioner's conclusory allegations are insufficient to merit habeas relief. See Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982) (finding conclusory statements do not raise a constitutional issue in habeas cases). Petitioner has failed to show that he was prejudiced by the delay in his hearings. Petitioner has therefore not shown a constitutional violation and the petition should be DENIED.
RECOMMENDATION
For the foregoing reasons, the Court recommends that Petitioner's habeas corpus petition under 28 U.S.C. § 2241 be DENIED.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).