Bradin v. Thomas
| Decision Date | 12 July 2019 |
| Docket Number | CASE NO. 19-3041-JWL |
| Parties | JOHN BRADIN, Petitioner, v. LINDA THOMAS, Warden, and UNITED STATES BOARD of PROBATION & PAROLE, Respondents. |
| Court | U.S. District Court — District of Kansas |
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. At the time of filing, Petitioner was in federal custody at Core Civic Leavenworth Detention Center in Leavenworth, Kansas ("Core Civic"). The Court dismisses some of Petitioner's claims for lack of jurisdiction, as successive and as moot, and denies the remaining claims.
Petitioner was arrested on state charges while on federal parole, and was subsequently convicted and sentenced in state court. The United States Parole Commission ("USPC") lodged a parole violation warrant as a detainer and deferred execution of the warrant pending Petitioner's completion of his state sentence. Petitioner argues that he is entitled to immediate release based on several grounds set forth in his Petition.2 Petitioner claims that: 1) his state plea agreements were violated, rendering his state sentences void, and the Missouri Department of Corrections had a duty to transfer him to federal custody to serve his concurrent federal sentence; 2) deferring his parole revocation hearing pending expiration of his state sentencesviolated the Due Process and Double Jeopardy Clauses; 3) the denial of a parole violation hearing within ninety days of execution of his parole violation warrant violated due process; and 4) Respondents' violation of Petitioner's Eighth Amendment rights entitles him to "Compassionate Release" under the First Step Act. Petitioner asks the Court to order Respondents to immediately grant him Compassionate Release under the First Step Act and to order Respondents to vacate his state sentences and to show cause why he should not be released from illegal confinement.3
On October 20, 1975, Petitioner was sentenced in the Western District of Missouri to fifteen (15) years of imprisonment for bank robbery in violation of 18 U.S.C. § 2113(a)(d). (Doc. 43-1, at 2.) Petitioner was released on parole on June 10, 1980. Id. at 6. On January 31, 1986, the USPC issued a warrant for Petitioner's arrest for parole violations, and subsequently ordered Petitioner to serve sixteen (16) months of imprisonment for his violations without credit for any time spent on parole. Id. at 7-9, 15-17. Petitioner was subsequently released on parole again on June 2, 1987. Id. at 18.
On January 4, 1988, the USPC issued another warrant for Petitioner's arrest for violating the terms of his parole, and subsequently ordered Petitioner to be reparoled on July 5, 1988. Id. at 13, 19-22. Petitioner was then released again on parole on July 5, 1988. Id. at 23. On July 10, 1989, the USPC issued another warrant for Petitioner's arrest for violating parole, andsubsequently ordered Petitioner to serve twenty-eight (28) months in confinement, but credited Petitioner with time spent on parole from his most recent release on July 5, 1988. Id. at 24-27. The USPC's National Appeals Board reduced Petitioner's term of imprisonment to twenty-two (22) months and Petitioner was released on parole again on May 10, 1991. Id. at 29 - 30.
On September 9, 1992, the USPC issued a warrant for Petitioner's arrest for violating the terms of his parole by committing felony theft and forcible sodomy. Id. at 31-33. The USPC supplemented the warrant on June 4, 1993 with the information regarding Petitioner's convictions for robbery and armed criminal action in Missouri state court. Id. at 34-35.
Petitioner pleaded guilty to attempted robbery in Jasper County, Missouri, and was sentenced on May 17, 1993, to a ten-year sentence to run concurrently with any sentence for any offenses that occurred prior to that date. (Doc. 2-1, at 2.) Petitioner pleaded guilty in Jackson County, Missouri, Case No. CR92-5692 to: Count I Kidnapping, Class B Felony; Count II ACA, Class A Felony; Count III, Robbery Frist Degree, Class A Felony; Count IV, ACA, Class A Felony; Count V, Forcible Sodomy, ungraded felony; and Count VI, ACA, Class A Felony. Id. at 3. Petitioner was sentenced in Jackson County on November 3, 1993, to imprisonment for a period of fifteen (15) years, on Count I and twenty-five (25) years each on Counts II, III, IV, V and VI. Id. The Guilty Plea/Judgment in Jackson County provides that all the sentences in that case will run concurrently, and "concurrently with the sentence previously imposed in Case No. CR592-1517FX in Jasper County, Missouri, and concurrently with the sentence previously imposed in Federal Court Case No. 75CR50-W-2." Id. at 4. Petitioner received credit for time spent incarcerated from June 9, 1993, when the warrant was issued in that case. Id.
The Memorandum from the USPC to the United States Marshal regarding the September 9, 1992 Warrant Application and Warrant provides:
Please assume custody as soon as possible or when located. NOTE: if the parolee is already in the custody of federal or state authorities, DO NOT EXECUTE THIS WARRANT. Place a detainer and notify the Commission for further instructions. Also, if a criminal arrest warrant has been issued for this parolee, execution of such criminal warrant shall take precedence and the Parole Commission is to be notified before its warrant may be executed.
Id. at 5. Petitioner's September 9, 1992 Warrant provided that Petitioner was released on parole on May 10, 1991, with 1603 days remaining to be served on his sentence in the Western District of Missouri. Id. at 6.
The USPC reviewed the warrant, which had been lodged as a detainer, on October 15, 2003, and chose to let the detainer stand in order to hear Petitioner's revocation hearing after he came into federal custody. (Doc. 43-1, at 36.) On November 2, 2018, United States Marshals executed the USPC's warrant for Petitioner's arrest for violations of the terms of his parole. Id. at 37. When the USPC's warrant was executed, the USPC was authorized to revoke Petitioner's parole and impose up to 1,602 days of confinement for Petitioner's parole violations. Id. at 38.
On April 24, 2019, the USPC formally offered Petitioner an Expedited Revocation Offer that would have revoked Petitioner's parole due to his Missouri convictions and released him from prison on July 22, 2019, in exchange for his waiver of a parole revocation hearing. Id. at 39-46. On May 13, 2019, Petitioner was transferred from Core Civic to the FTC Oklahoma City. Id. at 47. To date, Petitioner has not accepted the Expedited Revocation Offer and is currently waiting to be heard by the USPC at his revocation hearing scheduled for July 14, 2019, at FTC Oklahoma City. Id. at 49. Respondents assert that the USPC will credit Petitioner for the time he has spent in confinement since the USPC's warrant was executed on November 2, 2018, in accordance with 28 C.F.R. § 2.47(e), when it issues its final revocation decision.
To obtain habeas corpus relief, an inmate must demonstrate that "[h]e is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S. C. § 2241(c)(3). In addition, although a § 2241 petitioner is not required to obtain circuit authorization before filing a subsequent § 2241 petition in federal court, "his right to have his claims heard by that court [is] limited by both the bar erected in 2244(a) and the relevant case law." Stanko v. Davis, 617 F.3d 1262, 1269 (10th Cir. 2010). Section 2244(a) provides that:
No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears that the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus, except as provided in section 2255.
28 U.S.C. § 2244(a). Before the enactment of § 2244, "the Supreme Court developed several principles limiting the review of second or subsequent habeas petitions" and "[t]hese principles underlie the statutory bar in § 2244(a)." Stanko, 617 F.3d at 1269 ().
One such principle authorized a federal court to decline consideration of a habeas petition if the claim presented had previously been raised and adjudicated in an earlier habeas proceeding, "unless the court determined that hearing the claim would serve the ends of justice." Stanko, 617 F.3d at 1269 () (citing McCleskey, 499 U.S. at 480-82). The "ends-of-justice" exception is limited in scope and affords relief only when there is "a colorable showing of factual innocence." Hall v. Daniels, 545 F. App'x 754, 755 (10th Cir. 2013) (unpublished) (citing McCleskey, 499 U.S. at 495) (internal quotation marks omitted).
Another principle—abuse of the writ—authorized a court to decline a subsequent habeas petition raising a claim that could have been presented in an earlier petition but was not. Stanko, 617 F.3d at 1269 (citing McCleskey, 499 U.S. 482-89). The Tenth Circuit in Stanko found that it is likely that Congress intended to bring § 2244(a)'s bar in line with claims historically barred as an abuse of the writ. Id. at 1270. Under the abuse of the writ doctrine, a petitioner must show that his failure to bring a claim in a previous petition "was not the result of inexcusable neglect in order to proceed on the new claim." Id. (citing McCleskey, 499 U.S. at 489). Standards governing procedural default determinations will govern determinations of inexcusable neglect—"the petitioner must establish cause for his failure to raise the claim in an earlier proceeding and resulting prejudice, . . . or, in the absence of cause, the petitioner must show that 'a fundamental miscarriage of justice would result from a failure...
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