Posey v. Dewalt

• Decision Date: 13 December 1999
• Docket Number: No. Civ.A. 98-834-AM.,Civ.A. 98-834-AM.
• Parties: David Howard POSEY, Petitioner, v. Steven DEWALT, Warden, FCI Petersburg, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

86 F.Supp.2d 565

David Howard POSEY, Petitioner, v. Steven DEWALT, Warden, FCI Petersburg, Respondent.

No. Civ.A. 98-834-AM.

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

December 13, 1999.

David Howard Posey, State Farm, VA, petitioner pro se.

Leslie Bonner McClendon, United States Attorney's Office, Alexandria, VA, for respondent.

MEMORANDUM OPINION

ELLIS, District Judge.

Petitioner, a federal inmate proceeding pro se, filed this 28 U.S.C. § 2241 petition for a writ of habeas corpus, challenging the Bureau of Prisons' (BOP) decision to deny petitioner minimum custody status based on a Virginia state detainer filed against petitioner. Petitioner seeks his transfer from the federal institution where he is currently incarcerated, a low security facility, to a prison camp, a minimum custody facility. Respondent has filed a Response, arguing that the writ sought should not issue. This response will be treated as a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56. Petitioner has responded to respondent's arguments, and, accordingly, this matter is now ripe for disposition. For the reasons that follow, respondent's Motion for Summary Judgment must be granted, and this petition for a writ of habeas corpus dismissed.¹

I.

Petitioner has been incarcerated at the Federal Correctional Institution at Petersburg, Virginia, (FCI Petersburg) since January 9, 1998, where he is serving sentences on three federal convictions.

Petitioner's Federal Convictions:

On June 3, 1997, petitioner was convicted of conspiracy to commit wire fraud, possession of a firearm by a felon, and mail fraud in this Court. On October 30, 1997, petitioner was sentenced to a sixty-three month term of federal imprisonment. On October 30, 1998, pursuant to a Rule 35 motion by the government, petitioner's sentence was reduced to a term of thirty-six months of federal imprisonment. By virtue of credit earned for good conduct, petitioner is currently projected for release from his federal sentence on January 12, 2000.

Petitioner's Virginia State Conviction:

Petitioner's prior criminal record will not be reviewed here, save insofar as it relates to the claims raised in the instant petition. On December 3, 1987, petitioner was arrested in Fairfax, Virginia for Larceny/Theft in connection with stolen jewelry worth approximately $1,000. On May 6, 1988, petitioner was sentenced in Virginia state court (i) to a term of five years of imprisonment, all of which was suspended, (ii) to five years' probation conditioned on the completion of a drug treatment program, and (iii) ordered to pay $1,000 in restitution. On June 20, 1988, petitioner was placed into the Second Genesis Drug Program in Maryland.² Four days later, he absconded from the program.

On July 19, 1988, a probation violation warrant for petitioner was issued by the Commonwealth of Virginia for his escape from the drug treatment program. On October 12, 1990, petitioner appeared with counsel in a Virginia state court for the adjudication of his probation violation, at which time he was sentenced to a five year term of imprisonment.³ On September 18, 1992, after serving approximately two years of his five year sentence, petitioner was mandatorily paroled. He was provided with March 18, 1993 as a minimum date of release from supervision. At an unspecified date shortly after his parole release, petitioner absconded from his Virginia parole supervision. On December 2, 1992, a Virginia parole violation warrant was issued for petitioner. Petitioner has been in a parole violation status in Virginia since that date.

The Detainer Lodged Against Petitioner:

On February 2, 1998, approximately three months after petitioner arrived at FCI Petersburg, that institution received a letter from the Virginia Department of Corrections (VDOC), along with a certified copy of the 1992 parole violator warrant for petitioner. In its letter, VDOC requested that the warrant be filed as a detainer against petitioner, specifying that it would extradite petitioner.⁴ That detainer was placed on file with the BOP and VDOC will be notified sixty to ninety days before petitioner's release from federal custody.

Petitioner's Classification within The Bureau of Prisons:

Petitioner is currently confined in FCI Petersburg, which maintains four levels of custody progressing from the lowest level of custody to the highest. These levels are community, out, in, and maximum. BOP Program Statement 5100.06, Security Designation and Custody Classification Manual (SDCCM).⁵

Petitioner has been classified by his team unit pursuant to BOP guidelines contained in the BOP Program Statement 5100.06, SDCCM. He was last classified by his unit on January 8, 1999. Although a straight computation of petitioner's custody and security levels suggested that his custody should be considered for an "Out" custody rather than an "In" custody, BOP staff determined that petitioner was in need of greater security than that afforded at a minimum security institution such as a camp, which does not have a perimeter security fence. Thus, the staff determined that petitioner is a "minimum security level" inmate with "In" custody, pursuant to the guidelines in BOP Program Statement 5100.06, Custody Classification Form Instructions BP-338. Thus, a "Greater Security" management variable was requested from and approved by the Mid-Atlantic Regional Office (MARO).⁶

Petitioner's VDOC parole detainer was used in scoring petitioner's security and custody levels. The detainer was given one point, as falling within the Lowest and Low Moderate Severity level, based upon the offense behavior in the underlying state criminal conviction for felony larceny. The approval form of petitioner's greater security management variable indicates that this variable was approved because of detainers on petitioner's file. As respondent explained in a response to petitioner's administrative appeal of this classification, "your poor response to community supervision and two detainers [including the VDOC detainer for absconding from supervision] make you a poor candidate for placement in a minimum security facility."⁷

Because petitioner is currently classified as "In" custody, he is ineligible, under BOP classification procedures, to transfer to a minimum security camp.⁸ Petitioner's management variable remained valid until July 22, 1999, at which time it was scheduled for review.⁹

II.

Petitioner raises several related, but distinct, arguments that will be addressed individually.

A. Virginia's Failure to Resolve Its Parole Violation Detainer Promptly Violated His Due Process Rights:

In petitioner's first claim, he argues that the BOP improperly denied him minimum custody status, preventing his transfer to a prison camp, on the basis of an illegal parole violation detainer filed by the Commonwealth of Virginia. Specifically, petitioner argues that his due process rights are being violated because he has been deprived of a speedy adjudication of the Virginia parole warrant placed on him during his federal incarceration.

This claim is clearly without merit. In Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that the Due Process Clause mandated that a parole revocation hearing take place within a reasonable time after a parolee is taken into custody. However, the Supreme Court has since held that the prompt parole revocation hearing guaranteed by Morrissey is inapplicable where, as here, an individual has already been lawfully deprived of his liberty and is in custody on a criminal conviction. See Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). In Moody, an inmate confined pursuant to a federal conviction challenged the failure of a state to hold a prompt parole revocation hearing after it had lodged a detainer for a parole violation at the federal institution where he was confined. The Supreme Court held that the procedural protections outlined in Morrissey were inapplicable under such facts because the inmate's "present confinement and consequent liberty loss derive not in any sense from the outstanding [state] parole violator warrant, but from his [subsequent federal convictions]." Id. at 86, 97 S.Ct. 274. Accordingly, where a parolee has already been convicted of and incarcerated on a subsequent offense, the preliminary hearing contemplated by Morrissey is rendered unnecessary both because (1) the subsequent conviction gives the parole authority probable cause or reasonable ground to believe the parolee violated his parole conditions; and (2) issuance of the warrant does not immediately deprive the parolee of liberty. Id., n. 7.

In a case involving similar facts, this Court reached the same conclusion. Relying on Moody, the Court held that a Virginia inmate was not entitled to an immediate preliminary hearing on a New York parole violator warrant filed with VDOC because his New York parole had not been revoked, but merely threatened. See Bolden v. Murray, 841 F.Supp. 742, 745 (E.D.Va.1994).

Petitioner was already incarcerated in federal custody at the time the Virginia detainer was lodged at FCI Petersburg. Thus, petitioner's present incarceration, and his resulting loss of liberty, is a result of his 1997 federal convictions, not his outstanding Virginia parole violator warrant. As such, he is not entitled to a prompt hearing on the alleged parole violation.¹⁰

As a final matter, petitioner reiterates in his most recent filing his claim that the parole violation warrant issued by Virginia was executed on him while he was incarcerated in the Alexandria Detention Center (ADC). He bases this argument on the fact that he was served with the warrant at the ADC, and a preliminary hearing held there found probable cause to believe that petitioner had violated his parole. Petitioner therefore argues that, under Moody v. Daggett, this execution triggers petitioner's Due Process rights...