Johnson v. Reilly

• Decision Date: 18 November 2003
• Docket Number: No. 01-36033.,01-36033.
• Parties: Martin Allen JOHNSON, Plaintiff-Appellant, v. Edward F. REILLY, Jr., Chairman, U.S. Parole Commission; John Ashcroft, Attorney General of the United States; Jim Spinden, Sheriff, Washington County, Oregon; Dan Noelle, Sheriff, Multnomah County, Oregon; Pat Detloff, Sheriff, Clackamas County, Oregon, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

349 F.3d 1149

Martin Allen JOHNSON, Plaintiff-Appellant, v. Edward F. REILLY, Jr., Chairman, U.S. Parole Commission; John Ashcroft, Attorney General of the United States; Jim Spinden, Sheriff, Washington

County, Oregon; Dan Noelle, Sheriff, Multnomah County, Oregon; Pat Detloff, Sheriff, Clackamas County, Oregon, Defendants-Appellees.

No. 01-36033.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2003.

Filed November 18, 2003.

Christine Stebbins Dahl, Asst. Federal Public Defender, Portland, OR, for the Petitioner-Appellant.

Kenneth C. Bauman, Asst. U.S. Attorney, Portland, OR, for the Respondents-Appellees.

Appeal from the United States District Court for the District of Oregon; Michael R. Hogan, District Judge, Presiding. D.C. No. CV-01-00922-HO.

Before LAY,^* WALLACE, and TALLMAN, Circuit Judges.

WALLACE, Senior Circuit Judge:

Johnson appeals from the decision of the district court denying his petitions for a writ of mandamus to the United States Parole Commission (Commission), for habeas corpus, and for declaratory relief. The district court assumed jurisdiction over this case pursuant to 28 U.S.C. § 2241. 28 U.S.C. § 1291 provides us with jurisdiction to the extent that the district court denied Johnson's requests for mandamus and declaratory relief. We dismiss in part and affirm in part.

I.

Johnson began serving the first of his relevant prison terms in this case after an October 9, 1986 sentencing. He was to be incarcerated for twenty-two years, followed by a special six-year parole term for convictions under 21 U.S.C. § 841(a) (possession of cocaine and marijuana with the intent to distribute) and 18 U.S.C. Appendix § 1202(a) (felon in possession of a firearm). He was paroled in 1993 and, in 1996, following the recommendation of his parole officer, the Commission discharged Johnson from his regular parole and ordered that he begin serving his six-year special parole term on March 1, 1997.

Nearly a year later, Johnson became the prime suspect in an Oregon murder. Law enforcement officials executed a search warrant on Johnson's residence and contacted Johnson's family. A brother told Washington County Deputy Sheriffs that Johnson had stolen his car and other personal items, prompting the deputy sheriffs to file a police report.

State law enforcement officials also communicated with the United States Probation Office for the District of Oregon, which was responsible for supervising Johnson's special parole term. After learning about the charges, Crocker, Johnson's Probation Officer, requested an emergency special parole term violator's warrant from the Commission, stating three grounds: (1) Johnson had stolen his brother's car; (2) Johnson had moved without advising Crocker of his new address; and (3) Johnson had failed to report to work after the discovery of the body and during the ensuing investigation. Crocker also told the Commission in his request that

Johnson is also being investigated by Washington County Sheriff's Deputies and is listed as a prime suspect in relationship to the death of a 15-year-old girl who was found dead on the Oregon Coast on the morning of February 24, 1998.

The Commission issued the special parole term violator's warrant, the same day. The instructions in the memorandum accompanying the warrant warned the executing officer to

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.

Soon thereafter, three Oregon counties (Multnomah, Clakamas, and Washington) issued separate indictments and criminal arrest warrants against Johnson. Crocker notified the Commission of the three additional arrest warrants and the new charges, reporting that Johnson, still at large, now faced fourteen counts of criminal sexual misconduct. The Commission decided not to supplement its violator warrant with the new charges but wait and monitor their development.

A year after Johnson became a prime suspect in the Oregon murder, he was featured on the popular crime-fighting television show America's Most Wanted. Almost immediately thereafter, the United States Marshal's Service (USMS) was advised that Johnson was hiding in Kissimmee, Florida. USMS Deputies located Johnson there and arrested him, relying on the Commission's parole term violator warrant since it was entered first in the National Crime Information Center warrant database. Crocker notified the Commission that its warrant had been executed.

Nevertheless, the USMS called the Commission directly a few days later and informed it that its warrant had not in fact been executed, apparently believing that if they neglected to fill out the back of the warrant, it was not "executed." USMS also reported that another warrant for Johnson's arrest had been issued by Washington County, Oregon, on murder charges. The Commission declined the USMS's offer to execute its warrant at that time and advised the USMS to execute the Washington County arrest warrant. Johnson waived extradition and was returned to Oregon. On March 11, 1999, the Commission lodged the original 1998 warrant as a detainer in Washington County, Oregon. Johnson was indicted for murder there the next day.

On June 27, 2001, the Commission supplemented its special parole term violator's warrant with two rape charges based on the criminal sexual misconduct counts Johnson faced in other Oregon indictments. On July 11, 2001, the Commission supplemented the violator warrant again, adding the charge of aggravated murder. On August 14, 2001, Johnson was found guilty of murder and was sentenced to death.

Johnson now complains to us that the lack of a parole revocation hearing within sixty days of the execution of the Commission's warrant requires reversal of the district court.

II.

We first determine if we have appellate jurisdiction over this action. Johnson's complaint asked the district court for three forms of relief: a writ of habeas corpus pursuant to 28 U.S.C. § 2241, a writ of mandamus to the Commission pursuant to 28 U.S.C. § 1361, and declaratory relief pursuant to 28 U.S.C. § 2201. The complaint named as respondents the Chairman of the Commission, the United States Attorney General, and the Sheriffs of the three Oregon counties where Johnson faced charges. The district court decided that Johnson's action should be treated solely as a section 2241 petition for habeas corpus and entered a scheduling order directing that the United States Attorney be served with Johnson's pleadings. No state official was served.

We review de novo whether the district court properly had subject matter jurisdiction over this section 2241 action. See Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044 (9th Cir.2000). Where a prisoner files an action under section 2241, "the prisoner must name the warden of the penitentiary where he is confined as a respondent." Allen v. State of Oregon, 153 F.3d 1046, 1050 (9th Cir.1998), quoting Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.1989). "Failure to name the petitioner's custodian as a respondent deprives federal courts of personal jurisdiction," Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994), as does failure to serve the petitioner's custodian. Allen, 153 F.3d at 1050; Morehead v. California, 339 F.2d 170, 171 (9th Cir.1964). Although Johnson named his custodian, Sheriff James Spinden of Washington County, as a respondent, Spinden was never served. Johnson's habeas petition must therefore be dismissed.

The district court, however, limited Johnson's case to habeas relief without dismissing his complaint with respect to his requests for mandamus and declaratory relief. An action like Johnson's, which asks whether the Commission denied Johnson "his legally mandated speedy parole revocation hearing following his arrest on a parole violator warrant," sounds "more properly in mandamus" than in habeas. Thompson v. Crabtree, 82 F.3d 312, 313 n. 1 (9th Cir.1996). Thus, in effect, the district court denied mandamus relief. Johnson's mandamus action was directed at the Commission and does not suffer from jurisdictional defects, as the Commission was served and has appeared in this case through the United States Attorney. We will treat what remains of this action as a mandamus petition, and will determine whether mandamus was properly denied.

III.

Mandamus is an extraordinary remedy granted in the court's sound discretion. Miller v. French, 530 U.S. 327, 339, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000). For mandamus relief, three elements must be satisfied: "(1) the plaintiff's claim is clear and certain; (2) the [defendant official's] duty is ministerial and so plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available." R.T. Vanderbilt Co. v. Babbitt, 113 F.3d 1061, 1065 n. 5 (9th Cir.1997) (internal quotations and citations omitted). Whether the elements are satisfied is a question of law reviewed de novo. Id. at 1065. Even if the test is met, the district court still retains the discretion to deny relief. Id. n. 5.

There is no question that once the Commission executes a parole violator warrant by retaking the parolee into custody under the warrant, the Commission must abide by the requirements of 18 U.S.C. § 4214 and "cannot avoid[them] by withdrawing the warrant and lodging it as a detainer." Thompson, 82 F.3d at 316. One such requirement is to give a retaken parole violator a hearing to determine whether there is probable cause to believe he has violated a condition of his parole, followed by a revocation hearing within sixty days. 18 U.S.C. § 4214(a).¹

In this case, Johnson's parole violator...