O'Neal v. Levi

• Decision Date: 10 March 2008
• Docket Number: Civil Action No. 06-CV-5136.
• Citation: 551 F.Supp.2d 379
• Parties: Kevin O'NEAL, Petitioner v. Troy LEVI, et al., Respondents.
• Court: U.S. District Court — Eastern District of Pennsylvania

551 F.Supp.2d 379

Kevin O'NEAL, Petitioner v. Troy LEVI, et al., Respondents.

Civil Action No. 06-CV-5136.

United States District Court, E.D. Pennsylvania.

March 10, 2008.

COPYRIGHT MATERIAL OMITTED

Stuart Patchen, Defender Association of Philadelphia, Philadelphia, PA, for Petitioner.

James R. Pavlock, U.S. Attorney's Office, Philadelphia, PA, for Respondents.

ORDER

THOMAS M. GOLDEN, District Judge.

AND NOW, this 6th day of March, 2008, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241, and after review of the Report and Recommendation of United States Magistrate Judge L. Felipe Restrepo, and any objections filed thereto, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;

2. The petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is DENIED as a second or successive petition;¹ 3. There is no basis on which to issue a certificate of appealability.

IT IS FURTHER ORDERED that judgment is entered on behalf of respondents and against petitioner. The Clerk of Court shall close this matter for statistical purposes.

REPORT AND RECOMMENDATION

L. FELIPE RESTREPO, United States Magistrate Judge.

Before the Court is a Petition for Writ of Habeas Corpus filed under 28 U.S.C. § 2241 by Kevin O'Neal. Petitioner is a federal prisoner currently serving a term of special parole. For the reasons which follow, the petition should be dismissed as a "second or successive" petition under the "abuse of the writ" doctrine.

1. PROCEDURAL HISTORY

By Order filed May. 18, 2005 dismissing O'Neal's prior § 2241 petition, the Honorable Terrence W. Boyle, of the United States District Court for the Eastern District of North Carolina, set forth the pertinent procedural history of this case:

Kevin Carl O'Neal has a long and protracted criminal history. On or about March 25, 1986, [petitioner] was convicted and sentenced in the United States District Court for the Eastern District of New York to a term of five years for distribution of heroin. Additionally, [he] was sentenced to a special parole term of ten years.

Petitioner was paroled on his regular term of imprisonment but was returned to custody as a parole violator. He was later released to the community and commenced his special parole term on December 10, 1990. Petitioner's probation officer reported to the Commission that [O'Neal] had violated the conditions of his special parole; and, on April 23, 1992, [the U.S. Parole Commission (alternatively `Commission' or `Parole Commission')] issued a violator warrant and on May 8, 1992, he was arrested. After the revocation hearing, the Commission revoked [his] parole, denied him credit for time spent on special parole, and gave him a new parole date of November 5, 1993.

On November 5, 1993, [he] was reparoled, and he was to remain under parole supervision until May 4, 2002. Again, on November 16, 1994, a warrant was issued after the probation officer reported special parole violations. Petitioner was arrested on May 12, 1995[and] a parole revocation hearing was subsequently held. The Commission revoked [his] parole, denied him credit for time spent on special parole, and gave him a new parole date of March 10, 1996. At least three times after that his parole date was rescinded for disciplinary infractions which included assault and insolence towards a staff member. Petitioner was reparoled on December 8, 1997, and was to remain on parole until November 7, 2003.

On December 27, 1999, the term of special parole was "converted" to regular parole by a Notice of Action from the Commission based on United States Court of Appeals recent decisions. Thereafter, another warrant was issued for testing positive for the use of drugs and [he] was arrested on the warrant on January 3, 2000. On March 7, 2000, parole was revoked and he was credited with time spent on parole and continued to a parole date of January 3, 2001.

On January 3, 2001, he was paroled and to remain under supervision until November 7, 2003. Again, [he] tested positive for drugs, on August 6, 2002, a warrant was issued, and he was arrested on the warrant later that day. On September 30, 2002, the Commission revoked parole, denied him credit for time spent on parole and granted him a new release date on November 6, 2003. On the same date, the Commission also issued a notice vacating the previous Notice of December 27, 1999, converting special parole to regular parole, and vacating the March 7, 2000 decision granting credit to [him] for time spent on parole from December 8, 1997 to January 3, 2000, relying on Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).

See O'Neal v. U.S. Parole Comm'n, No. 03-407, Order at 1-3 (E.D.N.C. filed May 18, 2005) (hereinafter cited as "E.D.N.C. Order filed 5/18/05") (Ex. 24 attached to Resp. to Hab. Pet.).¹

On May 21, 2003, O'Neal filed in the Eastern District of North Carolina a federal habeas petition under 28 U.S.C. § 2241 contending "that the Commission's action of returning him to special parole following the revocation of his special parole was improper."² Id. at 3. Specifically, petitioner alleged that "the Parole Commission had no statutory authority under [21] U.S.C. § 841(c) to impose a second, third or fourth term of special parole after revoking the original term of special parole; nor did the Parole Commission have authority to forfeit street time credit ..." See Hab. Pet. Under 28 U.S.C. § 2241, at 2-3, O'Neal v. U.S. Parole Comm'n, No. 03-07 (E.D.N.C. May 18, 2005) (hereinafter "prior habeas petition") (Ex. 23 attached to Resp. to Hab. Pet.). On May 18, 2005, Judge Boyle dismissed that petition as without merit. See E.D. N.C. Order filed 5/18/05, at 4-5.

While that § 2241 petition was still pending, O'Neal was re-paroled on December 6, 2003, see Certificate of Parole dated 11/26/03 (Ex. 15 attached to Resp. to Hab. Pet.), but he was subsequently arrested on a parole violator's warrant, see E.D.N.C. Order filed 5/18/05, at 3. By Notice of Action dated March 10, 2004 (Ex. 16 attached to Resp. to Hab. Pet.), after O'Neal agreed to an expedited revocation proposal, the Commission again revoked his special parole, and ordered no credit for "street time" and re-parole after 15 months.

He was re-paroled June 15, 2005 to remain under parole supervision through August 14, 2007. See Certificate of Parole dated 6/15/05 (Ex. 17 attached to Resp. to Hab. Pet.). On July 19, 2006, the Commission issued yet another warrant charging him with violating the conditions of supervision by: using illegal drugs; committing the crimes of harassment and assault; committing criminal possession of a controlled substance, unlicensed operation of a motor vehicle, and failure to report arrest; and failing to report to his supervising officer as directed. See Warrant Application (indicating "Warrant Issued" July 19, 2006) (Ex. 18 attached to Resp. to Hab. Pet.). Following O'Neal's arrest and a preliminary interview, he consented to a proposed expedited revocation, and on October 25, 2006, the Commission ordered that his special parole be revoked, that he receive no credit for time spent on special parole, and that he serve a period of incarceration until the expiration of his sentence (approximately 17 months) with an "estimated release date of 1/04/2008." See Notice of Action dated 10/25/06 (Ex. 21 attached to Resp. to Hab. Pet.).

On November 14, 2006, O'Neal filed his § 2241 petition in this Court (Doc. No. 1), and on December 11, 2006, he filed an amended § 2241 petition (Doc. No. 2) (herein cited as "Am. Hab. Pet.").³ In his habeas petition, O'Neal again argues that the Commission's action of returning him to special parole following the initial revocation of his special parole was improper.

In its Response, the government argues that the petition should be dismissed as "second or successive" under the "abuse of the writ" doctrine, see Resp. to Hab. Pet. at 6-7, and in any event that the petition is without merit, id. at 7-23. In support of its argument that the petition is an "abuse of the writ," the government points out that, "[dissatisfied with the outcome in 2005 of his first Section 2241 petition filed in the [Eastern] District of North Carolina, [O'Neal] now turn[s] to another district court in another circuit to renew essentially the same arguments posed before in this first petition." Id. at 6.

2. DISCUSSION

"Section 2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence." See Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001) (citing United States v. Mares, 868 F.2d 151, 151 (5th Cir.1989)) (emphasis added); see Zayas v. INS, 311 F.3d 247, 256 (3d Cir.2002) (identifying "applications challenging the manner in which a valid federal sentence is carried out" as an example of a "categor[y] of habeas petitions filed under § 2241") (citations omitted); United States v. Reed, 2006 WL 2349987, at n. 2 (E.D.Pa. Aug.ll, 2006) (citing Coady). Therefore, this petition was properly brought under 28 U.S.C. § 2241.

In Zayas v. INS, the Court of Appeals for the Third Circuit "considered] the applicability to petitions for habeas corpus filed pursuant to 28 U.S.C. § 2241 of both (1) the `gatekeeping mechanism' by which 28 U.S.C. 2244(b) limits the filing of second or successive petitions for habeas corpus, and (2) the `abuse of the writ' doctrine as expressed in the Supreme Court's decision in McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)."⁴ See Zayas, 311 F.3d at 248. The Court of Appeals in Zayas Concluded "that the District Court correctly ruled that [the] habeas petition was subject to dismissal for abuse of the writ." Id. at 258. The Court of Appeals held that although the § 2241 petition "was not subject to the gatekeeping regime of § 2244(b),"⁵ see i...