Guerrero-Guerrero v. Clark, Civ. A. No. 87-1299-AM.

• Decision Date: 19 May 1988
• Docket Number: Civ. A. No. 87-1299-AM.
• Citation: 687 F. Supp. 1022
• Parties: Hector GUERRERO-GUERRERO, Petitioner, v. J.J. CLARK, Warden, et al., Respondents.
• Court: U.S. District Court — Eastern District of Virginia

687 F. Supp. 1022

Hector GUERRERO-GUERRERO, Petitioner, v. J.J. CLARK, Warden, et al., Respondents.

Civ. A. No. 87-1299-AM.

United States District Court, E.D. Virginia, Alexandria Division.

May 19, 1988.

Hector Guerrero-Guerrero, Petersburg, Va., pro se.

Dennis E. Szybala, Asst. U.S. Atty., Alexandria, Va., for respondents.

MEMORANDUM OPINION

ELLIS, District Judge.

I. Introduction

In this habeas case, an alien parolee, captured twice on the high seas for importing large amounts of marijuana, alleges certain procedural defects associated with his 1983 parole and his 1984 conviction. This matter is before the Court on respondents' motion to dismiss or, alternatively, for summary judgment, filed in response to petitioner's application for a writ of habeas corpus.¹ Petitioner, notified of his right to respond to the respondents' pleading, filed a memorandum in opposition. Petitioner presents seven claims for relief:

(1) that he was denied due process of law because he neither speaks nor understands English and the United States Parole Commission failed to use a translator or translation to insure that he understood the conditions of his special parole;

(2) that the Parole Commission had no jurisdiction to revoke his parole once petitioner was deported to Chile;

(3) that it was a violation of due process of law for the Parole Commission to fail or refuse to correct the illegal conviction and sentence imposed on October 26, 1984 by the United States District Court for the District of Puerto Rico;

(4) that his rights to equal protection have been violated because he was singled out for prosecution;

(5) that he was denied due process and equal protection because he received a parole date later than that of his co-defendants;

(6) that he was denied due process of law at his parole hearing because his counsel was constitutionally ineffective; and

(7) that the Parole Commission guidelines illegally discriminate against those convicted of high seas crimes, including petitioner.

A review of the pleadings submitted by the parties reveals that there are no disputed material issues of fact. Therefore, summary disposition of the petition is appropriate. For the reasons stated below, petitioner's claims are meritless. Summary judgment is granted and this cause dismissed with prejudice.

II. Findings of Fact

1. Petitioner, Hector Guerrero-Guerrero, is a Chilean citizen who is currently an inmate at the Federal Correctional Institution at Petersburg, Virginia.²

2. On or about April 1, 1982, the United States Coast Guard apprehended a vessel on the high seas that was transporting a large quantity of contraband. Petitioner was on board at the time, acting as Master of the vessel. Petitioner and the vessel were seized by the authorities and taken to the Southern District of Florida. On June 28, 1982, petitioner was convicted in the United States District Court for the Southern District of Florida on a two count indictment charging conspiracy to import, and importation of, approximately twenty tons of marijuana. He was sentenced to a two-year adult sentence with a two-year special parole term on one count, and imposition of sentence was suspended on the second count in order to place petitioner on a five-year term of probation to commence upon his release from incarceration.

3. On September 30, 1983, petitioner was released on parole from the 1982 conviction.³

4. Upon release, a certificate of special parole was issued to petitioner which indicated that he was to remain under the jurisdiction of the United States Parole Commission under the conditions set forth until October 2, 1985. The conditions set forth in the certificate included a provision that during this time he was to remain within the limits of the Southern District of Florida. Another of the special parole conditions was a standard proscription against violating any laws.⁴

5. At the time of petitioner's mandatory release on September 30, 1983, he was able to speak, read and understand very little English. Petitioner's native language is Spanish. The petitioner was not supplied with a Spanish translation of his certificate of special parole, nor of the specific conditions of the parole, including the condition that he not violate any laws of the United States. Petitioner's case manager advised petitioner that he needed to sign the parole papers in order to "go home," but did not translate into Spanish any of the parole conditions. Accordingly, although Petitioner knew he was released on parole, the Court finds that petitioner did not receive actual notice of any of the conditions of the parole, including the condition that he not violate any laws of the United States.

6. Petitioner began serving the special parole term on October 3, 1983. As a result of his 1982 conviction on the second count of the indictment, petitioner was also on probation which was scheduled to expire September 29, 1988.

7. On October 12, 1983, subsequent to being released on parole, petitioner was deported by the United States Immigration and Naturalization Service to Barranquilla, Colombia.

8. On June 17, 1984, a United States Coast Guard surveillance aircraft spotted the motor vessel Stecarika, a 240 foot ship, and the sail vessel Esperance on the high seas at latitude 15.40 N and longitude 68.28 W. Coast Guard Cutter Dallas established radio contact with the Stecarika on June 18, 1984. Petitioner, Master of the Stecarika, granted authorization for a routine inspection of the ship.

9. Once aboard and in the course of the inspection, Coast Guard personnel smelled marijuana in one of the ship's holds and noticed a line connecting the Stecarika with the Esperance. Numerous burlap bags were discovered concealed in a secret compartment in the lower hold of the Stecarika. A field test of the contents of the sacks disclosed that it was marijuana.

10. Crew members of both ships, including petitioner, were placed under arrest, the ships were seized, and both ships and the 22 crew members were escorted to San Juan, Puerto Rico. Upon their arrival on June 21, 1984, United States Customs officials took custody of the vessels, the crew members and the approximately 22,000 pounds of marijuana found on board.

11. Petitioner was enroute to Savannah, Georgia when he was apprehended and has steadfastly asserted that he did not know marijuana was concealed in the vessel's hold.

12. On June 26, 1984, petitioner was indicted for possession with intent to distribute and possession with intent to import unlawfully into the United States some 22,000 pounds of marijuana. Petitioner was not charged as a second offender, although this was his second federal drug offense. After a jury trial in the United States District Court for the District of Puerto Rico, on October 26, 1984, petitioner was convicted and sentenced to five years incarceration. Petitioner was committed to the custody of the Attorney General on January 17, 1985.

13. At the time petitioner committed this second offense, he was still subject to the two-year special parole term imposed in 1982. Therefore, a special parole violator warrant was lodged against him as a detainer on December 21, 1984.

14. A combined dispositional revocation/initial hearing was scheduled to be held on July 3, 1985 by the Parole Commission at the Federal Correctional Institute at Petersburg, Virginia. That hearing was continued to give petitioner an opportunity to be represented by counsel and to review a copy of the special parole violator warrant application. Petitioner was then provided with court-appointed counsel and received a combined special parole violator revocation hearing/initial hearing on September 6, 1985. At that hearing, petitioner had the benefit of a qualified staff interpreter.

15. Following the hearing, the examiner panel recommended that petitioner's special parole term be revoked and that none of the time spent on special parole be credited toward service of that term. The ground for the revocation was petitioner's 1984 conviction for the identical crime involved in his 1982 conviction and 1983 parole. The panel also recommended that petitioner begin serving the unexpired portion of his original 1982 sentence on his release from his new 1984 sentence and that petitioner serve the entire 1984 sentence without parole. These recommendations were adopted by the Parole Commission. Petitioner took no administrative appeal from this action.

16. Petitioner received a statutory interim hearing⁵ on March 5, 1987. Counsel and a qualified interpreter assisted petitioner throughout the interim hearing. Following this hearing, the Parole Commission panel recommended no change from the prior commission action. The recommendation was adopted by the Parole Commission and appealed by the petitioner. The National Appeals Board affirmed the Commission decision which requires petitioner to serve his new federal sentence to expiration without parole.

17. On October 14, 1987, the special parole violator warrant was executed on petitioner's mandatory release⁶ from the 1984 sentence. Petitioner currently remains in federal custody serving the two-year special parole violator term. An Immigration and Naturalization Service detainer for petitioner's deportation has been lodged at FCI-Petersburg.

III. Conclusions of Law

A. Failure to translate parole conditions

Petitioner claims first that he was denied due process because the Parole Commission failed to insure that he understood the conditions of his parole. More specifically, petitioner's claim is limited to the failure to translate into Spanish the parole condition prohibiting criminal conduct,⁷ for it was petitioner's violation of that condition that led to the parole revocation of which he complains here. In essence, then, petitioner claims due process was offended when he was not warned in Spanish that his parole would be revoked if he committed a serious crime, indeed, the very same serious...