Foster v. United States Parole Commission, C-3-80-111.

• Decision Date: 29 May 1981
• Docket Number: No. C-3-80-111.,C-3-80-111.
• Citation: 515 F. Supp. 541
• Parties: Robert FOSTER, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent.
• Court: U.S. District Court — Southern District of Ohio

515 F. Supp. 541

Robert FOSTER, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent.

No. C-3-80-111.

United States District Court, S. D. Ohio, W. D.

May 29, 1981.

Robert Foster, pro se.

James A. Wilson, Federal Public Defender, for respondent.

DECISION AND ENTRY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS OR MANDAMUS, WITHOUT HEARING; REQUEST FOR APPOINTMENT OF COUNSEL DEEMED MOOT; TERMINATION ENTRY

RICE, District Judge.

The captioned cause is before the Court upon two matters, to wit:

(1) consideration of the necessity for an evidentiary hearing on petitioner's petition, which seeks relief in the nature of the issuance of a writ of habeas corpus or of mandamus against the United States Parole Commission; and

(2) petitioner's motion seeking an Order of the Court appointing counsel to represent him in these proceedings.

Petitioner is well-traveled. It appears from the record, herein, that in August, 1967, while on parole from a sentence being served at the United States Penitentiary in Terre Haute, Indiana, petitioner was arrested in Cincinnati, Ohio. In December, 1967, as a result of that arrest, petitioner was convicted in this Court of transporting and conspiring to transport false checks in interstate commerce. He was sentenced to 11 years confinement in federal custody at the United States Penitentiary in Marion, Illinois.

In March, 1974, petitioner was given mandatory release (as if on parole) from incarceration under the 1967 conviction. Between October, 1974, and April, 1975, federal parole authorities became aware of new state criminal charges against petitioner in Kentucky and Ohio. Petitioner failed to comply with reporting conditions of his federal release after January, 1975. Thus, on April 16, 1975, federal parole authorities obtained a warrant for revocation of petitioner's mandatory release. At this time, petitioner's whereabouts were unknown.

In July, 1975, petitioner was arrested by Ohio authorities on state forgery charges. On September 24, 1975, he was convicted of forgery by the Common Pleas Court, in Hamilton County, Ohio, and was sentenced to an indeterminate term of 1 to 10 years confinement, to be served at the state correctional facility in Chillicothe, Ohio. The outstanding federal release revocation warrant was filed as a detainer with state authorities.

Petitioner became eligible for parole under the state conviction in May, 1976, but parole was denied him at that time. In December, 1977, while still in state custody, petitioner was convicted of civil contempt by the Federal District Court for the Southern District of West Virginia, at Charleston, and was sentenced to a term of 18 months in federal custody.

In April, 1978, petitioner was advised by Ohio authorities that he would be paroled from the state sentence "on or after May 15, 1978 — Detainer Only." It is unclear whether "detainer" referred to the contempt sentence pending in West Virginia, or the release revocation warrant issued under the 1967 federal conviction. In any event, on June 1, 1978, petitioner was released from Chillicothe and incarcerated at the Kanawha County Jail in Charleston, West Virginia.

On June 27, 1978, petitioner filed his petition (subsequently amended to its present form) in the federal district court at Charleston. Under nominal authority of 28 U.S.C. § 1361 (mandamus jurisdiction) and 28 U.S.C. § 2241 (general habeas corpus jurisdiction), petitioner sought a writ requiring the United States Parole Commission to quash the mandatory release revocation warrant issued in April, 1975, and also sought to have his 1967 federal sentence credited for time spent in Ohio custody under detainer pursuant to said warrant. Petitioner was instructed to refile his petition on approved forms for motions under 28 U.S.C. § 2255 (motion to vacate or correct federal sentence). He did so and the matter was referred to the federal magistrate in Charleston.

In a series of orders between August 9, 1978 and May 24, 1979, the Magistrate: (1) questioned the West Virginia federal court's jurisdiction, under 28 U.S.C. § 2255, to correct any sentence imposed by an Ohio federal court; (2) appointed the Charleston public defender to represent petitioner (which counsel amended the petition to its present form on May 15, 1979); and (3) repeatedly ordered the United States Parole Commission to respond to the petition.

On June 29, 1979, upon completion of petitioner's 18 month sentence for contempt of the Charleston federal court, the mandatory release revocation warrant was finally executed. Petitioner was released from confinement in West Virginia and was incarcerated at the federal penitentiary in Terre Haute, Indiana, pursuant to said warrant. On July 30, 1979, the United States Parole Commission appeared in Charleston federal court for the first time. The Commission moved for dismissal of the petition or, in the alternative, for transfer of the matter to the federal court for the Southern District of Indiana, contending that the Charleston federal court lacked jurisdiction.

In August, 1979, while the Commission's motion was pending before the Charleston magistrate, federal parole authorities at Terre Haute gave petitioner a hearing on revocation of the mandatory release. By notice of September 20, 1979, petitioner was advised: (1) that his mandatory release was revoked; (2) that no time spent on mandatory release (implicitly, including time spent in Ohio custody under detainer pursuant to the release revocation warrant) would be credited against the 1967 sentence; and (3) that he would be paroled, effective January 17, 1980, upon condition that he obtain drug care and placement in a community treatment center.

For some reason not on the record, petitioner was apparently released from Terre Haute in early November, 1979, more than two months in advance of the scheduled date for parole. Petitioner thereupon took up residence at a "halfway house" in Cincinnati, Ohio.

On November 29, 1979, the Charleston magistrate acted upon the Commissioner's pending motion. The Magistrate recommended that the matter be transferred to this Court because the Charleston federal court had "lost jurisdiction" over petitioner and his custodian.

In March, 1980, petitioner was arrested by Ohio authorities for attempting to negotiate a forged check at a savings and loan in Cincinnati. Petitioner was convicted of such offense in the Hamilton County Common Pleas Court on April 29, 1980, and was sentenced to a term of 2 to 5 years. It appears that petitioner is presently serving that term at the state correctional facility in Chillicothe, Ohio.

In early April, 1980, the West Virginia federal court acted upon the Charleston magistrate's pending recommendation and ordered that the matter be transferred to this Court. In that Order, Judge Knapp also noted that the petition had been "inadvertently" considered as a motion under 28 U.S.C. § 2255, but that it should be treated as a petition for writ of habeas corpus under 28 U.S.C. § 2241. After docketing in this Court, the United States Parole Commission filed a response and supplemental response to the petition.

The petition was filed and amended while petitioner was serving the federal contempt sentence in West Virginia. Prior to that time, the mandatory release revocation warrant on the 1967 federal conviction had been issued and filed as a detainer with Ohio authorities (i. e., while petitioner was serving the 1975 state forgery sentence). By the time the petition was filed and amended, the warrant had remained unexecuted for over four years, and no release revocation hearing had been held with respect to the warrant during that time. (As it turned out, the warrant would remain unexecuted for four years and two months, and the revocation hearing would follow within 60 days of the warrant's execution.) In the amended petition, petitioner contended that the ex parte issuance of the warrant, and failure to hear or execute same in a timely manner, prejudiced his eligibility for immediate parole (i. e., May, 1976), work release, and home furlough privileges under the 1975 Ohio sentence, and, therefore, denied him due process. He demanded relief in the form of an order quashing the warrant and associated state detainer or, in the alternative, a writ of mandamus directing federal parole authorities to hold a hearing on his release revocation. Petitioner's demand, in the original petition, that the time spent in Ohio custody under detainer pursuant to the unexecuted federal warrant be credited against his 1967 federal sentence, was not included in the amended petition.

Under the circumstances, it appears that petitioner's cause in this Court is moot. The federal warrant has been executed and the associated state detainer has necessarily been lifted. A hearing has been held on the revocation of petitioner's release. Although petitioner was not given credit against the 1967 federal sentence for time spent in Ohio custody, as he originally requested, the decision on that matter is solely within the discretion of federal parole authorities. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). Thus, unless there was some due process defect in the failure to execute the warrant and hear petitioner's release revocation for over four years, which defect might arguably provide this Court with some grounds for vacating the results of the revocation hearing that was eventually held, there would appear to be nothing left for this Court to do — i. e., no relief which this Court might provide — in response to the petition.

In Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), a federal prisoner was released on parole with almost six years remaining to be served on his conviction for a federal rape offense. While on parole, he was arrested, convicted, and sentenced for two federal homicide offenses. Soon after his incarceration for the homicides, federal parole...