Vierra v. U.S., CIV. 97-00926 ACK.
| Decision Date | 29 August 1997 |
| Docket Number | No. CIV. 97-00926 ACK.,No. CRIM. 86-00604-02 ACK.,CIV. 97-00926 ACK.,CRIM. 86-00604-02 ACK. |
| Citation | 980 F.Supp. 1372 |
| Parties | Robin K. VIERRA, Petitioner, v. UNITED STATES Of America, Respondent. |
| Court | U.S. District Court — District of Hawaii |
Loretta A. Faymonville, Office of the Fed. Public Def., Honolulu, HI, for Robin Vierra.
Daniel A. Bent by Elliot Enoki, Asst. U.S. Atty., for U.S.
ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S § 2255 MOTION
Is 28 C.F.R. § 2.57(c) giving the Parole Commission ("Commission") the authority to re-release a prisoner on special parole after the original term of special parole has been revoked inconsistent with 21 U.S.C. § 841(c), and thus invalid.
On May 6, 1986, a federal grand jury in Hawaii indicted Darrell D. Vidad and Robin K. Vierra ("Petitioner") on multiple marijuana distribution charges. Petitioner was charged in four counts with distributing small amounts of marijuana on four different occasions within 1000 feet of Kalihi Uka Elementary School.
Pursuant to a plea agreement filed on April 2, 1987, Petitioner pled guilty to Count 3 of the indictment, in return for which the United States agreed to dismiss the remaining counts. Count 3 charges that on or about October 4, 1985, Petitioner intentionally and knowingly distributed approximately 1.4 grams of marijuana within 1000 feet of Kalihi Uka Elementary School in violation of 21 U.S.C. §§ 841(a)(1) and 845a(a).
On May 18, 1987, this Court sentenced Petitioner to three years probation with no incarceration, a special condition of which required Petitioner to complete a drug treatment program in a residential setting. There was no direct appeal of the conviction or sentence.
On November 30, 1987, as a result of a probation violation, this Court revoked Petitioner's probation and sentenced him to three years imprisonment, with a special parole term of four years. In an unrelated matter (Crim. No. 88-00286 HMF 01), Petitioner pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and, on June 29, 1988, was given a three year sentence to run consecutively to his term of imprisonment in this matter.
According to the Petitioner, on March 5, 1993, he was released from confinement in California, and he returned to Hawaii. Subsequently, on February, 23, 1994, he was returned to custody as a "Special Parole Violator" for using drugs. On July 15, 1995, Petitioner was released on parole from FCI-Lompoc, and he again returned to Hawaii. On September 7, 1995, Petitioner again was taken into custody for using drugs. On December 11, 1996, Petitioner was released again.
On January 12, 1996, petitioner filed a motion to vacate or correct sentence pursuant to 28 U.S.C. § 2255 accompanied by a financial affidavit in support of his request to proceed in forma pauperis and for appointment of counsel. On January 29, 1996, Petitioner filed an Amendment to his motion, and on February 7, 1996, he filed a Second Amendment. On March 8, 1996, the United States filed a Response to Petitioner's § 2255 motion, and on April 4, 1996, filed a Second Response. On May 15, 1996, Petitioner filed a Belated Traverse in response to the United States' filings. On August 13, 1996, the Court denied Petitioner's § 2255 motion (hereinafter "first petition").
On December 16, 1996, Petitioner filed a belated traverse. On February 24, 1997, the Court construed his belated traverse as a reconsideration motion and denied it.
On June 2, 1997, a warrant for Petitioner's arrest was issued for violating the terms of his special parole. On June 10, 1997, Petitioner was arrested. On June 18, 1997, a Federal Public Defender was appointed to represent the Petitioner.
Petitioner filed this instant § 2255 petition on July 11, 1997. On August 6, 1997, the government filed its response.
Title 28 U.S.C. § 2255 provides that a court shall hold an evidentiary hearing on a motion under this section "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." "A court may entertain and determine such [a] motion without requiring the production of the prisoner at the hearing." Id.
The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. A hearing must be granted unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal.
United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.1984) (citations omitted); Shah v. United States, 878 F.2d 1156, 1158 (9th Cir.1989); see also United States v. Quan, 789 F.2d 711, 715 (9th Cir.1986) ().
The Ninth Circuit has recognized that even where credibility is at issue, where that can be "`conclusively decided on the basis of documentary testimony and evidence in the record,'" no evidentiary hearing is required. Shah, 878 F.2d at 1159 (quoting United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir.1989)). Judges also may use discovery, documentary evidence, and their own notes and recollections of the plea hearing and sentencing process to supplement the record. Shah, 878 F.2d at 1159. "Judges may also use common sense." Id. The choice of method for handling a section 2255 motion is left to the discretion of the district court. Id. (citing Watts v. United States, 841 F.2d 275, 277 (9th Cir.1988)).
The Court finds an evidentiary hearing unnecessary because no factual issues are in dispute. The Court, therefore, will decide this motion without such a hearing.
The first question before the Court consists of whether this motion should be treated as a petition under 28 U.S.C. § 2255 or 28 U.S.C. § 2241. This inquiry becomes relevant because if the petition is brought under § 2255, the Antiterrorism and Effective Death Penalty Act of 1996 ("ADEPA") requires that it be certified by the Ninth Circuit.1
This motion challenges the ability of the Commission to impose special parole following revocation of the original special parole term. At essence, therefore, the Petitioner through this motion challenges his parole and its revocation, not the original sentence or any manner involving the sentencing court.
The Ninth Circuit has held that "the challenge of decisions such as revocation of probation or parole are not appropriately dealt with under 28 U.S.C. § 2255, which is a continuation of the original criminal action." Grady v. United States, 929 F.2d 468, 470 (9th Cir.1991). Instead, the Ninth Circuit held that "[o]ther remedies, such as habeas corpus, are available in such situations." Id. More specifically, in other contexts, the Ninth Circuit has held that a 28 U.S.C. § 2241 motion is the best vehicle for challenging the execution of a sentence. United States v. Giddings, 740 F.2d 770, 772 (9th Cir.1984); see also Tyler v. United States, 929 F.2d 451, 453 n. 5 (9th Cir.1991). Consequently, because Petitioner challenges the execution of his sentence, the Court finds that Petitioner's motion cannot be brought under § 2255 but can be brought under § 2241. Accordingly, in the interests of justice, the Court will construe the instant petition as brought under § 2241. Accord Fultz v. Stratman, 963 F.Supp. 926 (S.D.Cal.1997) (). As a § 2241 motion it need not be certified by the Ninth Circuit before being addressed.2
The government argues that this Court should not reach the merits of Petitioner's motion because: (1) Petitioner has failed to exhaust his administrative remedies; and (2) Petitioner has abused the writ because he failed to raise the present claim in his previous habeas petitions.
The government argues that the Petitioner's failure to appeal the conditions of his incarceration to the Parole Commission's National Appeals Board requires this Court to dismiss the instant petition.
It does not appear that the Petitioner has brought the issue before this Court to any administrative body. Moreover, the government is correct that the Ninth Circuit has held that "[f]ederal prisoners are required to exhaust their federal administrative remedies prior to bringing a petition for a writ of habeas corpus in federal court." Martinez v. Roberts, 804 F.2d 570 (9th Cir.1986). What the government does not set forth in its opposition, however, is that a court has discretion in waiving the exhaustion requirement.
The true state of the law is that "[t]he requirement that federal prisoners exhaust administrative remedies before filing a habeas corpus petition [i]s judicially created; it is not a statutory requirement." Brown v. Rison, 895 F.2d 533 (9th Cir.1990). "Because exhaustion is not required by statute, it is not jurisdictional." Id. (citations omitted). "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 petitioner to exhaust his administrative remedies before proceeding in court." Id.
Here, the Court finds that to require exhaustion of remedies would be futile. At issue here is the propriety of what appears to have been a customary practice of the Commission: imposing a new term of special parole under 21 U.S.C. § 841(c) following revocation of the original special parole term. This practice has come under fire lately and it appears that in every instance, the Parole Commission has defended the practice. See e.g. ...
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Hernandez v. U.S. Parole Com'n, 96-3536-RDR.
...power to reimpose special parole after the original special term had been revoked. See Fultz, 963 F.Supp. at 926; Vierra v. United States, 980 F.Supp. 1372 (D.Hawai'i 1997); Armstrong v. United States Parole Commission, 947 F.Supp. 1501 (W.D.Wash.1996); Caldwell v. Spears, 973 F.Supp. 406 (......
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Mitchell v. Hood, 00-1255-HO.
...Ninth Circuit did not address the issue based on procedural grounds. Id. at 1333. The petitioner also cites dicta in Vierra v. United States, 980 F.Supp. 1372 (D.Haw.1997) to support his position. The Vierra court stated that the cycle of "special parole, violation, arrest, etc." can be "re......