Turnage v. U.S. Parole Comm'n
| Decision Date | 02 April 2014 |
| Docket Number | Civil Action No. ELH-11-3373 |
| Parties | TONY TURNAGE #337-857, Petitioner, v. UNITED STATES PAROLE COMMISSION, Respondent. |
| Court | U.S. District Court — District of Maryland |
On November 21, 2011, Tony Turnage initiated an action against the United States Parole Commission, respondent, pursuant to 28 U.S.C. § 2241, as a petition for habeas corpus relief. ECF 1.1 In the suit, Turnage, who was then a state prisoner at the Maryland Correctional Institution-Hagerstown (MCI-H), challenged a federal parole detainer. Id.2 He asserted that the detainer, issued as a parole violation warrant, should be dismissed because his requests for its adjudication had been ignored. Id. Turnage sought a court order quashing the parole violation warrant, claiming that, as a result of respondent's delay in acting on the detainer, his underlying federal sentence had expired. Id. at 2; see Letter to United States Parole Commission (Pet. Ex. B, ECF 8 at 5).
On January 4, 2013, respondent filed a motion for summary judgment (ECF 26) and supporting memorandum of law (ECF 26-1), asserting that the petition for habeas corpus relief should be denied. By Order dated July 23, 2013, I denied respondent's summary judgment motion, without prejudice, and subject to renewal upon supplementation. ECF 39. Respondent filed a supplement to its motion for summary judgment on August 20, 2013 (ECF 43), which was further supplemented on September 5, 2013 (ECF 45) (collectively, the "Motion").3
Respondent concedes that the United States Parole Commission (the "Commission") failed to commence its dispositional review of the detainer within its regulatory time-frame. ECF 34 at 4. Nevertheless, the Commission argues that the petition is subject to dismissal, because the proper remedy for a delayed hearing is not habeas relief, but rather mandamus. See ECF 26-1 at 8. Further, respondent maintains that Turnage's due process rights have not been abridged. See id. In addition, the Commission asserts that Turnage's petition is moot, as the only relief to which he is entitled, the conduct of a hearing, has now occurred.4 See id.; see also ECF 43 at 3-6; ECF 45.
Turnage's ongoing responses to respondent's various pleadings have been considered5 in opposition to this latest round of dispositive briefing.6 See ECF 8, 27, 33, 35. No hearing isneeded to resolve the issues raised herein. See Local Rule 105.6; see also 28 U.S.C. § 2243. For the reasons that follow, the petition will be dismissed.
At issue is the Commission warrant of January 8, 2010, charging Turnage with violation of the conditions of his parole based on his arrest by Maryland authorities in October 2009. Turnage's lengthy history of incarcerations, parole, and recidivism leading to parole revocation directly bears on the matter under consideration.
Turnage was sentenced by the United States District Court for the District of Maryland on December 3, 1987, to a 15-year term of imprisonment for robbery and larceny of a savings and loan and aiding and abetting. See United States v. Turnage, Criminal No. S-87-0439 (D. Md.); see also Judgment and Commitment Order, ECF 26-2 at 2; Sentence Monitoring Computation Data, ECF 26-2 at 3-7. He was paroled on December 22, 1993, and was to remain under supervision until August 25, 2002. Certificate of Parole, ECF 26-2 at 8.
Turnage was in state custody from July 22, 1994 to April 4, 1995, following an assault and battery conviction, and again from June 25, 1996 to October 18, 1997, following a burglary conviction, for a period totaling just over 24 months in state custody. See Notice of Action on Appeal, ECF 26-2 at 14. The Commission executed a warrant for violation of parole on April 9, 1998, and Turnage was taken into custody on that warrant on May 7, 1998. Warrant, ECF 26-2 at 12; Warrant for Return, ECF 26-2 at 13. By notice of action dated December 8, 1998, the Commission revoked Turnage's parole, ordered that he receive no credit for time spent on parole (i.e., "street time"), and required that he serve 60 months of incarceration before returning to presumptive parole status on February 1, 2002. ECF 26-2 at 10.
On appeal, the Commission's National Appeals Board awarded Turnage the periods of "street time" which were forfeited from December 22, 1993 (date of federal parole) to July 21, 1994, from April 4, 1995 (first release from state custody) to June 25, 1996, and from October 18, 1997 (second release from state custody) to May 7, 1998 (arrest on federal parole violation warrant). The National Appeals Board clarified these orders by notice of action on appeal dated March 17, 1999, and advanced the presumptive re-parole date after 60 months of incarceration from the date originally ordered (February 1, 2002) to May 7, 2001. ECF 26-2 at 14.
Turnage was re-paroled on August 6, 2001, and his parole supervision period was extended until January 7, 2007.7 Certificate of Parole, ECF 26-2 at 15. He was arrested on a new parole violation warrant on March 24, 2005. Warrant, ECF 26-2 at 18; Warrant for Return, ECF 26-2 at 19. The Commission conducted a parole revocation hearing on July 19, 2005, and ordered revocation of parole with no credit for street time (from May 7, 2001 to March 24, 2005), and ordered Turnage to serve 32 months of incarceration (to November 24, 2007) prior to re-parole. See Notice of Action, ECF 26-2 at 23-25; Hearing Summary, ECF 26-2 at 20-22. The Commission then received information from the federal Bureau of Prisons ("BOP") indicating that the state charges which triggered parole revocation were nolle prossed on March 23, 2005, giving Turnage an additional 4 months and 24 days of credit towards his federal sentence.8Memorandum, ECF 26-2 at 16; Notice of Action, ECF 26-2 at 27. Accordingly, the Commission advanced Turnage's parole date to July 1, 2007. Notice of Action, ECF 26-2 at 27.
Turnage was re-paroled on July 1, 2007, to remain under supervision until May 5, 2010. Certificate of Parole, ECF 26-2 at 28. Of import here, on December 23, 2009, the Commission was informed that Turnage had been arrested by Maryland authorities on several charges, including armed robbery, robbery, assault with a dangerous weapon, assault, and theft.9 See Warrant Application, ECF 26-2 at 30. On January 8, 2010, the Commission issued a violation warrant charging petitioner with violating the conditions of parole in connection with the arrest. Warrant Application, ECF 26-2 at 30-31; Warrant, ECF 26-2 at 32. The Commission instructed the United States Marshal that if Turnage already was in state custody, the warrant should be placed as a detainer, so that Turnage would be taken into custody when released by state authorities. Memorandum, ECF 26-2 at 34.
On March 6, 2012, the Commission informed the Warden at MCI-H that it was commencing a dispositional review of its detainer pursuant to 18 U.S.C. § 4214(b)(1), and enclosed documents to be given to Turnage, including a Notice of Pending Dispositional Review on the Record, and a Form CJA-22 to request assistance of counsel for the dispositional review. ECF 26-2 at 35-43. The Notice of Pending Dispositional Review on the Record informed Turnage that the Commission would conduct a dispositional review of the detainer pursuant to 28 C.F.R. § 2.47. ECF 26-2 at 36.
By notice of action dated October 11, 2012, the Commission informed Turnage that its detainer would stand. ECF 26-2 at 53. The notice of action instructed the United States Marshals Service to notify the Commission when its warrant was executed, and to return theexecuted warrant to the Commission. Id. Turnage completed his Maryland sentence, was taken into federal custody on the parole violation warrant on May 16, 2013, and was committed to the District of Columbia Correctional Treatment Facility. See ECF 43-2.
On May 30, 2013, the Commission requested the BOP to "promptly" designate Turnage's transfer to a federal institution so that he could receive a revocation hearing within 90 days. ECF 43-3. That same day, the Commission sent Turnage a probable cause letter indicating a parole revocation hearing would be scheduled based on the Maryland armed robbery, robbery, theft, assault, and weapons charges. ECF 43-4 at 1-2.
A parole revocation hearing scheduled at the Federal Detention Center in Philadelphia, Pennsylvania for July 16, 2013, was postponed when Turnage's attorney did not appear. ECF 43-6. At the rescheduled parole revocation hearing on August 14, 2013, Turnage was represented by counsel. See ECF 43-8 at 1. The hearing examiner recommended revocation of parole, that no credit be given for time on parole, and that Turnage remain incarcerated until the expiration of his sentence. Id. at 2. Under this recommendation, Turnage would serve approximately 68 months in prison, including credit towards the guidelines of 45 months for time spent in state custody, with a re-parole guideline range of 60 to 72 months of incarceration. See id. On August 30, 2013, the Commission concurred. ECF 45 at 2. Turnage's estimated release date has been calculated as April 13, 2015. ECF 43-7 at 5.
Under the Sentencing Reform Act of 1984 ("SRA"), federal parole was abolished and the Commission was to be phased out over time. See Bledsoe v. United States, 384 F.3d 1232, 1233 (10th Cir. 2004). The Commission was to be kept in existence for five years after the effective date of the SRA, in order to process inmates whose convictions predated the SRA and whowould still be incarcerated by that date. The Commission's operation has been extended multiple times since the effective date of the SRA, most recently in 2011. See id.; Bowers v. Keller, 651 F.3d 1277, 1281 & n.7 (11th Cir. 2011); United States Parole Commission Extension Act of 2011, Pub.L. No. 112-44, 125 Stat. 532. Statutes relating to the Commission, 18 U.S.C. §§ 4201-4218, were repealed but remain in effect for prisoners, like Turnage, who are under the authority of the...
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