Martinez v. Langford
| Decision Date | 12 October 2017 |
| Docket Number | Case No. CV 16-00360 TJH (AFM) |
| Court | U.S. District Court — Central District of California |
| Parties | PHILLIP MARTINEZ, Petitioner, v. STEVE LANGFORD, et al., Respondents. |
This Report and Recommendation is submitted to the Honorable Terry J. Hatter, Jr., Senior United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner has filed a Petition for Writ of Habeas Corpus by a Person in Federal Custody under 28 U.S.C. § 2241 and a Petition for Writ of Mandamus under 28 U.S.C. § 1361 (collectively "Petition"). He raises three grounds for relief challenging various requirements of his parole from federal custody. Petitioner seeks immediate termination of parole supervision or an early termination hearing.
On September 7, 2017, the Court issued a Report and Recommendation in which it recommended that the Petition be denied and that this action be dismissed with prejudice. Petitioner filed timely Objections in which he argued, among other things, that the Report and Recommendation failed to account for the fact that one of his alleged parole violations (for assault with a deadly weapon) was eventually reversed because he successfully brought a federal habeas petition in the district court.
This Final Report and Recommendation is issued solely to address this objection. As discussed below in Ground One, petitioner's successful federal habeas petition in the district court (on the alleged parole violation) does not change the result of his claim. Otherwise, this Final Report and Recommendation is the same as the initial Report and Recommendation. The Court therefore continues to recommend that this Petition be denied and that this action be dismissed with prejudice.
In 1975, at the age of eighteen, petitioner was convicted of murder on an Indian reservation and sentenced to life in federal prison. In 1990, petitioner was released on parole to serve the remainder of his sentence. (ECF No. 6, Exhibit 1 at 1 and Exhibit 2; ECF No. 30, Exhibit 2 at 1.)
In 1994, petitioner's parole was revoked after he was charged with assaulting a person with a knife. In 1996, the United States District Court for the Central District of California granted petitioner's federal habeas petition, reasoning that petitioner was entitled to but did not receive a live hearing before the commissioners who ultimately decided that charge. (ECF No. 30, Exhibit 6.) Petitioner was again released on parole in 1996. (ECF No. 6, Exhibits 3-4; ECF No. 30, Exhibit 6.)
In 1999, petitioner was charged with three more parole violations: association with a person having a criminal record, leaving the district without permission, and failure to report employment. (ECF No. 6, Exhibit 6 at 2.)
In April 2000, petitioner appeared for a combined hearing before an examiner for the United States Parole Commission (Parole Commission) to address two issues: (1) parole revocation and (2) early parole termination under 18 U.S.C. § 4211. Section 4211 required the Parole Commission to hold an early termination hearing for petitioner after five years of his release on parole in order to determine whether the Parole Commission should terminate its supervision. In May 2000, the Parole Commission adopted the examiner's recommendations of parole revocation and continued parole supervision. In June 2000, after serving five months in federal custody, petitioner was again released on parole. (ECF No. 6, Exhibit 6 at 2 and Exhibits 7-8; ECF No. 30, Exhibits 12-14.)
Petitioner appealed the Parole Commission's decision to the National Appeals Board. In September 2000, the Board affirmed the decision. (ECF No. 12, Exhibit A at 2.)
In November 2000, petitioner was charged with three more parole violations: failure to report a change in residence, failure to submit to drug testing, and failure to report to a supervising officer. Petitioner had absconded to Mexico in October 2000, and he did not return to the United States until May 2015. A violator warrant was executed against petitioner in May 2015. (ECF No. 6, Exhibit 6 at 4 and Exhibit 9 at 2; ECF No. 12, Exhibit A at 3, 6-8, 20; ECF No. 28 at 3.)
In July 2015, the Parole Commission offered petitioner an expedited parole revocation process whereby he would waive a parole revocation hearing, admit responsibility for the alleged parole violations, and waive his appeal rights. In return, petitioner would serve eleven months in federal custody and then be released on parole. Petitioner accepted the offer. (ECF No. 6, Exhibits 9-11.)
In October 2015, petitioner attempted to appeal the parole revocation determination. In November 2015, the National Appeals Board rejected the appeal because it had been waived. (ECF No. 6, Exhibit 12.)
On January 15, 2016, petitioner filed this Petition. In April 2016, petitioner was released on parole. (ECF Nos. 1, 17.)
In October 2016, petitioner filed a motion for a temporary restraining order and a preliminary injunction to enjoin the Parole Commission from subjecting him to drug and alcohol testing as a condition of his parole. The Court denied the motion on January 11, 2017, and denied reconsideration on February 6, 2017. The Ninth Circuit Court of Appeals affirmed the decision on August 14, 2017. (ECF Nos. 16, 29, 34, 39.)
On January 19, 2017, respondent filed an Answer addressing the merits of petitioner's claims. Petitioner filed Traverses on January 3, 2017, and on February 13, 2017. On June 21, 2017, this case was transferred to the calendar of the undersigned Magistrate Judge. (ECF Nos. 28, 30, 35, 38.)
1. Petitioner is entitled to an early parole termination hearing. (Petition at 6-7.)
2. The drug and alcohol testing requirements of petitioner's parole supervision violate his right to due process. (Petition at 7-8.)
3. The Parole Commission unlawfully exercised jurisdiction over petitioner. (Petition at 8-19.)
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It does not appear from the record that petitioner has administratively exhausted his claims in Grounds One and Two by raising them before the National Appeals Board. See Weinstein v. U.S. Parole Com'n, 902 F.2d 1451, 1453 (9th Cir. 1990) (). Although petitioner did file an appeal with the National Appeals Board challenging the Parole Commission's May 2000 parole decision, it appears that the only claim from this Petition that was raised during that appeal was Ground Three (i.e., the jurisdiction of the Parole Commission). (ECF No. 12, Exhibit A.)
As a prudential matter, federal prisoners must exhaust their administrative remedies before filing a habeas petition pursuant to 28 U.S.C. § 2241. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (per curiam); Laing v. Ashcroft, 370 F.3d 994, 997 (9th Cir. 2004). Because exhaustion is not required by statute, it is not jurisdictional. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on other grounds by Reno v. Koray, 515 U.S. 50, 54-55 (1995).
"Where exhaustion of administrative remedies is not jurisdictional, the district court must determine whether to excuse the faulty exhaustion and reach the merits, or require the petition to exhaust his administrative remedies before proceeding in court." Brown, 895 F.2d at 535. Here, because respondent did not expressly argue that Grounds One and Two of the Petition should be dismissed on exhaustion grounds, the issue is waived. See Urbina v. Thoms, 270 F.3d 292, 295 n.1 (6th Cir. 2001) (); United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 1992) (same); United States v. Wood, 888 F.2d 653, 654 (10th Cir. 1989) (same); see also Granberry v. Greer, 481 U.S. 129, 132-34 (1987) (); Francis v. Rison, 894 F.2d 353, 355 (9th Cir. 1990) (). The Court therefore will not resolve the exhaustion issue but will dispose of petitioner's claims on the merits.
In Ground Three, petitioner claims that the United States Parole Commission unlawfully exercised jurisdiction over him for multiple reasons. (Petition at 8-19.)
Petitioner's parole supervision is governed by the Parole Commission and Reorganization Act of 1976 (Parole Act), 18 U.S.C. §§ 4201-18. One of the effects of the Parole Act was the establishment of the United States Parole Commission. See Wallace v. Christensen, 802 F.2d 1539, 1543 (9th Cir. 1986) (en banc). The Parole Commission has broad discretion to grant or deny parole based on relevant factors such as the recommendations of interested individuals, the nature of the offense, the prisoner's history and characteristics, and the jeopardy to public welfare. See id. at 1544. The Parole Act was repealed effective November 1, 1987, but it remains in effect for any person who committed an offense before that date. See Benny v. U.S. Parole Com'n, 295 F.3d 977, 981 n.2 (9th Cir. 2002).
Petitioner claims that he is not subject to the authority of the Parole Commission because of the dates of his conviction and parole determinations in relation to the effective dates of the Parole Act. His claim has three parts.
First, petitioner contends that application of the Parole Act to him violates the prohibition against ex post facto laws because he was convicted of murder in 1975, before the effective date of the Parole Act on May 14, 1976. Application of a law that inflicts a greater punishment after its commission...
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