Brewer v. Dahlberg

• Decision Date: 13 August 1991
• Docket Number: No. 90-3728,90-3728
• Parties: Bobby BREWER, Petitioner-Appellant, v. Eric G. DAHLBERG, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 328

942 F.2d 328

Bobby BREWER, Petitioner-Appellant, v. Eric G. DAHLBERG, Respondent-Appellee.

No. 90-3728.

United States Court of Appeals Sixth Circuit.

Submitted July 29, 1991.

Decided Aug. 13, 1991.

Terry H. Gilbert, on brief, Friedman & Gilbert, Cleveland, Ohio, for petitioner-appellant.

Gerald E. Dailey, Stuart A. Cole, Asst. Atty. Gen., on brief, and Jack W. Decker, Office of the Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellee.

Before MARTIN and MILBURN, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Petitioner-appellant, Bobby Brewer, appeals the district court's dismissal of his writ of habeas corpus against Eric G. Dahlberg, respondent-appellee, for failure to exhaust state remedies. For the following reasons, we affirm.

I.

This is an action in habeas corpus appealing the district court's dismissal of the writ for failure to exhaust state remedies. Petitioner challenges the constitutional sufficiency of the revocation of his parole in June 1988, which resulted in petitioner's subsequent confinement. ¹ Respondent asserted that petitioner had not exhausted all available state remedies and that an action in state court for a writ of mandamus would lie as an available remedy. Upon review, the United States magistrate found that mandamus would not lie, that petitioner had exhausted all available state remedies, that petitioner's due process rights under the Fourteenth Amendment had been violated, and that the petition for habeas corpus should be granted. The district judge rejected, in part, the report and recommendation of the U.S. magistrate and stated that an action in state court for a writ of mandamus was available as a remedy to petitioner. Without deciding the merits of petitioner's constitutional claim, the district judge dismissed the petition on the ground that petitioner had failed to exhaust state remedies. Petitioner now appeals that decision and seeks relief in habeas corpus pursuant to 28 U.S.C. § 2254.

II.

This case arises as a result of petitioner's concurrent federal and state sentences and the way the state of Ohio handled petitioner's parole after his release from imprisonment for his state offense.

Petitioner was convicted in state court on September 23, 1980 on one count of aggravated robbery for which he was sentenced to a term of incarceration of four to twenty-five years. In February 1981, petitioner was also convicted in the Southern District of Ohio on federal charges, arising from the possession of a stolen United States Treasury check, for which he was sentenced to a term of incarceration of two years, to run concurrently with his state sentence. Based upon his federal conviction, a detainer was lodged with the Ohio authorities by the United States Marshals Service, to be operative in the event that petitioner was released from state confinement before February 1983, when his federal sentence ended.

On January 13, 1982, the Ohio Adult Parole Authority (hereinafter, "OAPA") informed petitioner that he would be paroled from state custody and issued a form, which petitioner signed, captioned "Statement of Parole Agreement," which stated in part as follows:

The Members of the Parole Board have agreed that you have earned the opportunity of parole and eventually a final release from your present conviction. The Parole Board is therefore ordering a Parole Release in your case.

....

The following Conditions of Parole are in effect in your Parole Release:

1. Upon release from the institution, report as instructed to your Parole Officer (or any other person designated) and thereafter report as often as directed.

....

5. Follow all instructions given you by your Parole Officer or other officials of the Adult Parole Authority and abide by any special conditions imposed by the Adult Parole Authority.

....

7. Special Conditions:

NOTIFY DETAINER

U.S. Marshal

Cincinnati, Ohio

On that same date, petitioner executed two forms, the first of which is captioned "Parole and Probation Form V--Application For Compact Services," and reads:

I, Bobby Brewer, Le CI R-113-903, hereby apply for supervision as a parolee or probationer pursuant to the Interstate Compact for the Supervision of Parolees and Probationers. I understand that the very fact that supervision will be in another state makes it likely that there will be certain differences between the supervision I will receive in any state to which I am asking to go. I urge the authorities to whom this application is made, and all other judicial and administrative authorities, to recognize that supervision in another state, if granted as requested in this application, will be a benefit to me and will improve my opportunities to make a good adjustment. In order to get the advantages of supervision of Parolees and Probationers, I do hereby accept such differences in the course and character of supervision as may be provided, and I do state that I consider the benefits of supervision under the Compact to be worth any adjustment in my situation which may be occasioned.

In view of the above, I do hereby apply for permission to be supervised on (PAROLE) in Nebraska, for the following reasons: [blank space left uncompleted].

I (have read the above) (have had the above read and explained to me), and I understand its meaning and agree thereto.

Although no statement of reasons for requesting a transfer of parole supervision to Nebraska was included in the form, another document issued contemporaneously, "Parole and Probation Form III--Agreement To Return," states:

I, Bobby Brewer, Le CI R-113-903, in consideration of being granted (parole) by the Ohio Adult Parole Authority and especially being granted the privilege to leave the state of Ohio to go to Nebraska, hereby agree:

1. That I will make my home with Mrs. Blanche Brewer Bell, 4319 Larimore Avenue, Omaha, Nebraska, until a change of residence is duly authorized by the proper authorities of Nebraska.

2. That I will comply with the conditions of (parole) as fixed by both the states of Ohio and Nebraska.

3. That I will, when duly instructed by the Ohio Adult Parole Authority return at any time to the state of Ohio.

4. That I hereby do waive extradition to the state of Ohio from any jurisdiction in or outside the United States where I may be found and also agree that I will not contest any effort by any jurisdiction to return me to the state of Ohio.

5. Failure to comply with the above will be deemed to be violation of the terms and conditions of parole for which I may be returned to the state of Ohio.

On February 24, 1982, petitioner was issued a Certificate of Parole by the state of Ohio. It stated "parole effective February 25, 1982." It then stated, by the insertion of "X" marks on various lines:

To Go Immediately Following Your Release By Detaining Authorities Directly To: The Adult Parole Authority Office, 1050 Freeway Drive--North, Columbus, Ohio, ZIP 43229....

Your Arrival There Must Be Reported To: Mr. Frank Mecum, Placement Coordinator,

X In Person immediately on your arrival in Columbus, Ohio, in order that you may receive further parole instructions and placement assistance.

THIS PAROLE will require you to maintain conduct at all times in compliance with the rules set forth by the Ohio Adult Parole Authority, and with any special conditions or instructions imposed by the Ohio Parole Board or by your parole officer.

TO WIT: SPECIAL CONDITIONS INSTRUCTIONS: Parole to Federal Detainer, if not picked up, continue to 2/82.

THIS PAROLE will start upon your release by detaining authorities and will continue

XXX For a period of not less than one year when you will become eligible for final release consideration provided you have maintained satisfactory conduct and adjustment. Your parole may be extended or revoked if you fail to comply with these requirements (emphasis added).

The "Certificate of Parole" did not contain any definition of "detaining authorities," nor did it explain what "Parole to Federal Detainer" meant.

Also dated February 24, 1982 is a form letter to petitioner from the OAPA called "Parole Instructions." At the top of the instruction notice, there appeared lines for "Parole o/a" and "Release effective," both of which had been completed by insertion of the date February 25, 1982. In full text, that letter informed petitioner as follows:

Your placement or plans for parole have not been approved to date. We are informed, however, that you will be released into custody of U.S. Marshal.

The Ohio Adult Parole Authority will consider your Ohio parole status to be inactive while you are in custody of the above-named authorities, or under confinement imposed by said authority.

Upon your release under bond, probation, parole, or otherwise, from custody or confinement, you are to immediately report your temporary or permanent address to the Ohio Adult Parole Authority, 1050 Freeway Drive--North, Columbus, Ohio--ZIP 43229, and await further instructions. It is imperative that you report such information promptly as your Ohio parole status could be placed in jeopardy.

In the event of your imprisonment in another state as a result of the above detainer disposition, we are requesting that you notify the Ohio Adult Parole Authority approximately sixty (60) days prior to your tentative release date, thereby furnishing all information pertinent to your current parole placement plans. The Ohio Adult Parole Authority will then endeavor to complete arrangements for your parole supervision in accordance with such plans.

You will be placed under active parole supervision following your release from custody or confinement when placement and parole supervision plan is approved. You will then continue on parole for a period of one year.

Your parole is a privilege granted by the State of Ohio to allow you to complete your sentence outside of confinement. We hope that you will, therefore, direct your efforts toward achievement of...