Howard v. Caufield, 12–5290.

• Decision Date: 02 September 2014
• Docket Number: No. 12–5290.,12–5290.
• Citation: 765 F.3d 1
• Parties: Ronnie Leroy HOWARD, Appellant v. CAUFIELD, Warden and United States Parole Commission, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

765 F.3d 1

Ronnie Leroy HOWARD, Appellant

v.CAUFIELD, Warden and United States Parole Commission, Appellees.

No. 12–5290.

United States Court of Appeals,District of Columbia Circuit.

Argued April 7, 2014.

Decided Sept. 2, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:09–cv–00211).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the brief was A.J. Kramer, Federal Public Defender.

Ronnie Leroy Howard, pro se, filed briefs for appellant.

Katherine M. Kelly, Assistant U.S. Attorney, argued the cause for appellees. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and Carolyn K. Kolben, Assistant U.S. Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before ROGERS, GRIFFITH and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Ronnie Leroy Howard appeals the denial of his petition for a writ of habeas corpus. Howard is a federal parolee with an expected parole termination date of June 5, 2016.¹ He seeks immediate release from parole, contending that procedural irregularities relating to parole revocations in 1985 and 2004 warrant habeas corpus relief.

Howard makes three roughly distinct challenges to his federal parole. First, he argues that the U.S. Parole Commission (“Commission”), through a “Notice of Action” following a 1985 parole revocation hearing, ordered that the first five years of an intervening state sentence, from 1982 to 1987, would run concurrently with his federal sentence, but failed to treat them as concurrent. But for the Commission's failure to run his terms concurrently, as Howard says the Commission informed him it would, he would now be free from parole. Howard's claims arising out of that alleged surprise reversal fail because they all rest, at bottom, on a misreading of the admittedly opaque Notice of Action, which directed that the specified five years would run consecutively.

Second, Howard makes several arguments founded on his contention that the Commission did not properly execute, or never executed, a 1982 parole violator warrant it lodged against him. At the conclusionof the three day evidentiary hearing in this case, the magistrate judge found that the Commission executed the 1982 warrant on July 21, 1987. Howard argues, however, (1) that the magistrate judge's factual finding was clearly erroneous, (2) that the magistrate judge abused her discretion and violated his due process rights by failing to aid him in calling additional witnesses at the evidentiary hearing whose testimony could have helped him to prove that the Commission did not execute the warrant in 1987, and (3) that he received ineffective assistance of counsel because his attorney failed adequately to press his warrant execution argument and failed adequately to help him to locate and procure his witnesses. All of Howard's claims relating to the execution of his 1982 parole violator warrant fail, however, because Howard had no right to have the warrant executed, and the Commission had no obligation to execute it. It is thus immaterial whether the Commission ever executed the 1982 parole violator warrant.

Finally, Howard contends that the Commission executed a separate 1998 parole violator warrant in 2000 or 2002, but delayed the associated parole revocation hearing until 2004. He argues that that multiyear delay between execution and revocation was unreasonable and prejudicial, and therefore violated his due process rights. The magistrate judge found, however, that the Commission executed the 1998 parole violator warrant in 2004. Howard's petition raises no grounds warranting reversal of that determination, and Howard does not argue that the minor delay between his 2004 warrant execution and 2004 revocation hearing violated his right to due process.

Because none of Howard's claims merits habeas relief, we affirm the judgment of the district court denying his petition.

I.

Howard is a serial recidivist who has served time in prison for various federal and state crimes and is currently on federal parole, with an expected parole termination date in 2016. He is a 67–year–old Vietnam veteran who has struggled for much of his life with addictions to cocaine and other drugs. He has kidney disease, which, at the time of his petition, did not yet require dialysis treatment.

The concurrent 20– and 25–year federal sentences for which Howard remains on parole were for two bank robberies Howard committed in 1970. Howard was imprisoned at the Lorton Reformatory Adult Services Complex, a federal penitentiary in Lorton, Virginia, but escaped in the early 1970s by climbing a fence, adding 15 months to his sentence. Several years later, Howard again gained release on parole, but a further series of crimes, state sentences of imprisonment, and corresponding breaks in and violations of his federal parole had, by 2011, pushed Howard's parole termination date from 1996 to 2022. After Howard filed this case, the Commission reduced Howard's parole term, giving him an anticipated release date in 2016.

Howard traveled a circuitous path to 20 extra years of federal penal supervision. After Howard served nine years in federal prison, the government paroled him in 1979. While he was on parole, Howard committed serious crimes in Virginia, including armed robbery. In 1982, the Commission issued a “parole violator warrant” for Howard for those and other parole violations. A parole violator warrant is a warrant issued by the Commission pursuant to its authority to “retake” parolees who have violated their federal parole and return them to federal prison—or at least formally to return them to the custody of the Attorney General. 18 U.S.C. § 4213(a)(2). The Commission did not immediately execute the warrant and return Howard to federal prison, however, because by then he was in state prison pursuant to his 1982 conviction and 18–year sentence for armed robbery in violation of Virginia law.

In 1985, while Howard was incarcerated in Virginia, the Commission conducted a “dispositional revocation hearing” to determine what effect Howard's parole violations would have on completion of his federal sentence. At a dispositional revocation hearing, or parole revocation hearing, the Commission may revoke parole and return an individual to federal prison, id. § 4214(d), and, where a parolee is convicted of a crime “punishable by a term of imprisonment” during his release on parole, the Commission may also determine that his time already spent on parole does not count toward his underlying sentence, id. § 4210(b)(2); see also28 C.F.R. § 2.52(c)(2). The Commission is also permitted to toll a parolee's federal sentence while he serves a term of imprisonment for another offense. 18 U.S.C. § 4210(b)(2) ( “[T]he Commission shall determine ... whether all or any part of the unexpired term [of the original sentence] being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense....”); see also Santa v. Tippy, 14 F.3d 157, 158–59 (2d Cir.1994).

At Howard's revocation hearing, the Commission decided to revoke his parole and not to credit the six years he had been out on parole toward his federal sentence. The Commission further determined that Howard, who was still incarcerated in Virginia, would not resume earning credit toward his federal sentence until 1987. As the magistrate judge explained, the decision of the Commission “effectively tolled his federal sentence by 60 months.” App. at 689.

The Commission informed Howard of its findings through a Notice of Action, the disputed meaning and legal effect of which are central to this appeal. A Notice of Action is, inter alia, a document that the Commission must provide to a parolee following a parole revocation proceeding. See, e.g.,18 U.S.C. § 4214(e); 28 C.F.R. § 2.13(c). As relevant here, following a parole revocation hearing, the Commission must “furnish the parolee with a written notice of its determination.” 18 U.S.C. § 4214(e). Howard's Notice of Action following his 1985 parole revocation hearing attempted to communicate to him that the Commission had decided to revoke his parole and deny him credit for the six years he had spent on parole since his release from federal prison in 1979 (including the time he had already served in prison in Virginia). The Notice of Action also sought to inform him that time would again start counting towards his federal sentence upon his release from Virginia custody into federal custody or after he spent an additional five years in state prison. No part of his first five years in Virginia custody, were he to serve that long, would count toward his federal sentence.

In 1987, with Howard still imprisoned in Virginia, his federal parole began to run again. The effect of the Commission's decision was to move back eight years, from 1996 to 2004, the date of expiration of Howard's federal sentence. Because of his various parole revocations and withdrawals of parole credit, Howard was back at square one with respect to his remaining 17–year federal sentence.² It was as if the sentence had been reset to 1979, when he was released on parole, and the eight years between then and 1987 never happened.

In 1992, after Howard served nine years in state prison, Virginia paroled him, and he remained on parole, not reincarcerated, pursuant to his federal sentence. In the ensuing years Howard again violated his federal parole by committing cocaine-related crimes and other offenses in violation of Virginia law. In 1998, the Commission issued a new parole violator warrant for Howard, charging him with parole violations dating back to 1992, including the cocaine-related crimes. At the urging of Howard's federal probation officer, however, in order to afford Howard an opportunity to participate in a...