Blue Thunder v. U.S. Parole Comm'n
| Decision Date | 18 November 2013 |
| Docket Number | Civil Action No. 13-187-KSF |
| Parties | JAMES DAVID BLUE THUNDER, Plaintiff, v. UNITED STATES PAROLE COMMISSION, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Kentucky |
James David Blue Thunder ("Blue Thunder") is an inmate confined by the Bureau of Prisons in the Federal Medical Center located in Lexington, Kentucky. Proceeding without counsel, Blue Thunder has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, appearing to challenge a decision by the United States Parole Commission ("USPC") on June 22, 2012, continuing his case for a year and scheduling a parole Reconsideration Hearing in June of 2013.1
Blue Thunder claims that when the USPC originally revoked his parole in 1998, the USPC relied on hearsay evidence and otherwise improperly revoked his parole. He claims that in taking these actions, the USPC exceeded its rule making authority, acted in an arbitrary and capricious manner, and violated his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution. Blue Thunder asserts that there was no rational basis for the USPC's action, and he seeks an order temporarily restraining the USPC from enforcing its decision to revoke his parolewhile this action is pending. He claims that he is in custody in violation of the U.S. Constitution and laws of the United States, and he seeks immediate release.
The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Blue Thunder's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Blue Thunder's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). For the reasons stated below, Blue Thunder's habeas petition is without merit and will be denied for his failure to state a claim warranting relief under § 2241.
In 1978, Blue Thunder was convicted in the United States District Court for the District of South Dakota of first-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. Blue Thunder received a life sentence of imprisonment, and the Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979).
On August 14, 1995, Blue Thunder was paroled. However, his parole was revoked on June 24, 1998, after the USPC found that he had violated numerous conditions of his parole, including fraud, assault and sodomy or unlawful sexual contact with a minor. The USPC did not prosecute Blue Thunder for violating any laws, tribal or otherwise. Instead, the USPC simply determined thatBlue Thunder had failed to comply with the terms of the condition of his parole. As noted in United States v. Brown, 59 F.3d 102 (9th Cir. 1995):
Revocation of parole or probation is regarded as reinstatement of the sentence for the underlying crime, not as punishment for the conduct leading to the revocation. See United States v. Soto-Olivas, 44 F.3d 788, 789, 791 (9th Cir.1995). Parole and probation are part of the original sentence. Their continuance is conditioned on compliance with stated conditions—if the defendant does not comply with those conditions, parole and probation may be revoked. Revocation does not extend the original sentence, it simply alters the conditions under which it is served. The fact that the events which lead to revocation may also constitute a second crime does not mean the revocation itself is punishment for the second crime. See id.
Blue Thunder appealed the USPC's decision to revoke his parole to the National Appeals Board ("NAB"), contending that the USPC lacked jurisdiction to revoke his parole. On September 15, 1998, the NAB rejected his appeal and affirmed the USPC's decision.
In 2001, Blue Thunder filed a petition for writ of habeas corpus pursuant to § 2241 in the United States District Court for the District of Colorado. The named respondents were E. J. Gallegos, Warden; E. Maureen Janssen, U. S. Parole Officer; Dave Johnson, Glory House Director; and United States Parole Commission. He claimed that the respondents exceeded their jurisdiction with respect to the fraud charge and denied him due process in revoking his parole. See Blue Thunder v. Gallegos, No. 01-WM-1965 (unpublished order). The district court dismissed the petition on the merits, finding that the respondents acted within their jurisdiction and did not deny him due process because there was a rational evidentiary basis for the revocation findings. Blue Thunder did not appeal.
Blue Thunder filed his second § 2241 petition in June 2004 in the United States District Court for the District of Columbia. Because petitioner was incarcerated in Colorado at that time, thepetition was transferred to the District Court for the District of Colorado. See, Blue Thunder v. United States Parole Com'n, 165 F. App'x. 666 (10th Cir. 2006)[unpublished]. In that case, Blue Thunder claimed that the Commission had exceeded its jurisdiction with respect to the Charge of Fraud and that his Due Process rights were violated by the revocation of his parole. Id. at 667. In addition, Blue Thunder argued that his abuse of the Writ should be excused because, allegedly, USPO Janssen failed to disclose material evidence at the 1998 Revocation Hearing, an argument that the district court rejected. Id. at 668. The district court dismissed the petition as an abusive writ pursuant to 28 U.S.C. § 2244(a), concluding that Blue Thunder had previously unsuccessfully raised the same issue concerning the revocation of his parole. Petitioner appealed, but on February 7, 2006, the Tenth Circuit affirmed the denial of Blue Thunder's second habeas petition as an abuse of the writ. See James David Blue Thunder v. U.S. Parole Commission, et al., supra.
In 2009, Blue Thunder filed a third § 2241 habeas petition in the United States District Court for the District of Minnesota identified as James Blue Thunder v. Brian J. Jett, Warden, et al., No. 09-2454- DSD/LIB (D. Minn. 2009), wherein he raised the following challenges to the Revocation Hearing: (1) that the Commission had no subject matter jurisdiction to consider the Tribal Code violations; (2) that USPO Janssen committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), by allegedly "suppressing" witnesses and medical evidence from the Hearing Officer; (3) that the Commission did not have jurisdiction to consider the Charge of Fraud, because the Veterans Administration had already made a "final and conclusive" decision that he was not at fault;(4) that the Tribal Courts, and not the Commission, had jurisdiction over the Commission's "contract" -- i.e. the terms of Blue Thunder's parole -- and the criminal conduct charges; (5) that the Assistant United States Attorney failed to comply with Title 25 U.S.C. Section 2809(b); and (6) that theWarrant was improperly based upon criminal conduct for which he had not been arrested. The district court surmised that Blue Thunder was claiming that these alleged procedural errors violated his right to Due Process, under the Fifth Amendment, and under Title 25 U.S.C. §1302, which extends many of the liberties, that are guaranteed in the Constitution, as against Tribal Governments, and that he was claiming that, given the facts and the Court's purported lack of jurisdiction, the Commission's decision to revoke his parole was arbitrary and capricious, under the Administrative Procedures Act, Title 5 U.S.C. §701, et seq. ("APA"). Additionally, Blue Thunder also claimed that he is actually innocent of several of the Charges -- specifically, the Charges of Fraud, the Violation of Special Conditions, and the Assault of Nauceder. For all of those reasons, Blue Thunder sought reversal of his parole revocation.
On September 23, 2010, the district court denied Blue Thunder's petition as successive and an abuse of the writ. [R. 35 therein] Blue Thunder moved for relief from that judgment, pursuant to Fed. R. Civ. P. 60(b)(6) [R. 37 therein]. On August 19, 2013, the district court denied that motion. [R. 43 therein] Blue Thunder did not appeal.
Blue Thunder's current habeas petition, filed pursuant to 28 U.S.C. § 2241, is his fourth such petition. Three of the four claims raised herein hinge on the fact that he was never charged or convicted of any new criminal offenses in any court, tribal or federal, either before or after the revocation of his parole in 1998. Based on that fact, Blue Thunder contends that (a) the USPC lacked authority to arrest and detain him for criminal conduct in the absence of the United States Attorney's Office initiating any criminal charges against him, (b) he is "actually innocent" of the criminal conduct for which the USPC found he had committed, and (c) he has newly discovered evidence that the USPC exceeded its statutory authority by charging him with violations of law forwhich he was never charged or convicted. For this fourth claim, he claims that the USPC has violated his due process rights by exceeding the scope of its authority relating to the requirement that, pursuant to 18 U.S.C. § 4203(c)(2), it must "take sworn testimony" in parole revocation proceedings established in 18 U.S.C. §§ 4209(b) and 4213(b).
In Blue Thunder's third habeas petition filed in 2009 in the District of Minnesota, the district court...
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