Warren v. Apker
| Decision Date | 06 March 2014 |
| Docket Number | No. CV-12-314-TUC-JGZ (BGM),CV-12-314-TUC-JGZ (BGM) |
| Court | U.S. District Court — District of Arizona |
| Parties | Gary Ronald Warren, Petitioner, v. Craig Apker, Respondent. |
Currently pending before the Court is Petitioner Gary Ronald Warren's pro se Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody ("Petition") (Doc. 1). Respondent Apker has filed his Return and Answer to Order to Show Cause Why Petition for Writ of Habeas Corpus Should Not Be Granted ("Response") (Doc. 16), and Petitioner filed his reply (Doc. 20). Petitioner has also filed a Motion by Petitioner That This District Court Now Reach the Merits of This Habeas Corpus - 28 U.S.C. 2241 Now Pending a District Court Decision for Twenty-Two Months Since Filed April 25, 2012 (Doc. 25) and a Motion for Judicial Notice and Acknowledgement [sic] (Doc. 26). Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. The Magistrate Judge recommends that the District Court deny the Petition (Doc. 1). The Magistrate Judge further recommends that the District Court deny as moot Petitioner's Motion by Petitioner That This District Court Now Reach the Merits of This Habeas Corpus - 28 U.S.C. 2241 Now Pending a District Court Decision for Twenty-Two Months Since Filed April 25, 2012 (Doc. 25) anddeny Petitioner's Motion for Judicial Notice and Acknowledgement [sic] (Doc. 26)
I. PROCEDURAL AND FACTUAL BACKGROUND
Petitioner is currently incarcerated at the United States Penitentiary Tucson ("USP Tucson") in Tucson, Arizona. See Petition (Doc. 1). On January 7, 1976, the United States District Court, Eastern District of California, sentenced Petitioner to a fifteen (15) year term for bank robbery (CR S-75-306), as well as a second fifteen (15) year term for bank robbery (CR S-75-598) and a ten (10) year consecutive term for bank robbery (CR S-75-588). Response (Doc. 16), Farrar Decl. (Exh. "A") ¶ 3 & USDC, E.D. Cal. Judgment & Commitment ("J & C") Orders (Attach. "1"). The total term for this initial sentencing is forty (40) years. Id. On December 2, 1976, the United States District Court, Eastern District of Missouri sentenced Petitioner to a ten (10) year term for bank robbery and incidental crimes (S-6-276CR) to be served consecutively to his initial forty (40) year sentence. Id., Exh. "A" ¶ 4 & USDC, E.D. Mo., J & C (Attach. "2"). On February 16, 1977, the United States District Court, Central District of California, sentenced Petitioner to a four (4) year term for bank robbery (CR-76-1050), and ordered the term to be served "consecutive to all Federal sentences now being served." Id., Exh. "A" ¶ 5 & USDC, C.D. Cal., J & C (Attach. "3"). On June 20, 1977, the United States District Court, Southern District of West Virginia, sentenced Petitioner to a twenty (20) year term for bank robbery and incidental crimes (CR 26-108), and ordered the sentence "to run concurrently with the sentence the defendant is now serving." Id., Exh. "A" ¶ 6 & USDC, S.D. W.Va. J & C Order (Attach. "4"). On November 15, 1978, the United States District Court, Middle District of Florida, sentenced Petitioner to a five (5) year term for escape (78-8-Cr-J-M), and ordered the sentence to "run consecutively to the sentences the defendant is now serving." Response (Doc. 16), Exh. "A" ¶ 7 & USDC, M.D. Fla., J & C (Attach. "5"). Additionally, on November 15, 1978, the court sentenced Petitioner to a twenty (20) year term for bank robbery and incidental crimes (78-9-Cr-J-M), and ordered that this sentence "shall run consecutively to the sentence imposed [on] this date in Case No. 78-8-Cr-J-M, and to any other sentences the defendant is now serving."Id. On December 10, 1979, the District Court, Western District of Virginia, sentenced Petitioner to a twenty (20) year term for bank robbery and use of a firearm in the commission of a felony (78-00004-C), directing that fifteen (15) years of the sentence "to run concurrent[ly] to any sentence now being served[,] [and] [t]he remaining 5 years . . . to run consecutive[ly] to any sentence now being served." Id., Exh. "A" ¶ 8 & USDC, W.D. Va. J & C Orders (Attach. "6"). On January 8, 1988, the United States District Court, District of Oregon sentenced Petitioner to a twenty (20) year term for bank robbery (CR37-60033), directing that the sentence be served "concurrently with the sentence presently being served[.]" Id., Exh. "A" ¶ 9 & USDC, D. Ore., J & C (Attach. "7"). On December 23, 1988, the United States District Court, District of Oregon, sentenced Petitioner to a fifteen (15) year term for bank robbery (CR 88-207-01), "to be served concurrently with the sentence imposed in CR37-60033." Id., Exh. "A" ¶ 10, USDC, D. Ore., Judgment (Attach. "8"). On January 24, 1989, the United States District Court, Western District of Washington, sentenced Petitioner to a five (5) year term for escape (CR87-193C), to run consecutively "to any and all other sentences being served." Id., Exh. "A" ¶ 11, USDC, D. Wa. J & C (Attach. "9").
The Bureau of Prisons ("BOP") applied 219 days of presentence credit to Petitioner's sentence, and 405 days of inoperative time was applied for Petitioner's four (4) instances of escape. Response, Exh. "A" ¶ 12. Petitioner's eligibility date was determined to be April 12, 1986 - one-third of the regular adult maximum sentence of thirty (30) years (equaling ten (10) years), plus any inoperative time (405 days), minus any presentence time (219). Id., Exh. "A" ¶ 13. Petitioner's two-thirds date is calculated as two-thirds of the entire 89-year term, which is November 8, 2035.1 Id., Exh. "A" ¶ 14, Sentence Monitoring Comp. Data (Exh. "B") at 11.2 Petitioner's full term date is July 11, 2065, determined by adding the entire 89-year term to the date computation began, January 7, 1976, then subtractingpresentence time credit of 219 days, and adding the 405 days of inoperative time. Id., Exh. "A" ¶ 15, Exh. B. at 11.
On February 18, 1987, Petitioner received his initial parole hearing. Response (Doc. 16), Initial Hr'g Summ. (Exh. "C"). The United States Parole Commission (the "Commission") rated his severity category a seven (7), and his salient factor score a one (1), with a guideline range of 276-400 months. Id. The hearing examiner recommended that Petitioner be released after 276 months or twenty-three (23) years. Id. A second examiner recommended a continuance for a fifteen (15) year reconsideration hearing in February 2002. Id. The Commission continued Petitioner's sentence "to a presumptive parole after the service of 300 months, April 10, 2001, with special mental health aftercare condition." Response (Doc. 16), Notice of Action 3/12/1987 (Exh. "D") at 1. Petitioner's aggregate guideline range was found to be 276-400 months to be served. Id. A statutory interim hearing was scheduled for February 1989. Id.
On October 31, 1989, a statutory interim hearing was held. Response (Doc. 16), Hr'g Summ. (Exh. "F") at 1. Between the initial hearing and this statutory interim hearing, Petitioner escaped from prison and was involved in a bank robbery. Id. Accordingly, the panel recommended continuance to a fifteen year reconsideration hearing in November 2004, and that Petitioner "not ever be returned to the community because subject presents a threat to the public welfare and to release him earlier than statutorily required would promote disrespect for the paroling process." Id. at 2. The Commission continued the matter to a fifteen (15) year reconsideration hearing in November 2004. Response (Doc. 16), Notice of Action 11/20/1989 (Exh. "G") at 1. The Commission further noted that Petitioner's aggregate guideline range was to be increased by 136-176 months added to the original presumptive parole date of April 10, 2001, plus the time Petitioner was on escape status. Id.
On September 10, 1991, a prehearing assessment was conducted, noting "[a] decision . . . to go above the guidelines because of the history of aggressive behavior and the fact that [Petitioner] was serving terms for bank robbery and escape at the time of the instant behavior." Response (Doc. 16), SIH/Rescission Prehr'g Assessment (Exh. "E") at 1. Theprehearing assessment also noted an additional instance of misconduct within the institution. Id. On October 22, 1991, Petitioner received a statutory interim hearing. Response (Doc. 16), Review Summ. 10/22/1991 (Exh. "H"). The hearing examiner recommended no change in Petitioner's fifteen (15) year reconsideration hearing in November 2004. Id. The Commission ordered that there would be no change in the continuance to a fifteen (15) year reconsideration hearing in November 2004. Response (Doc. 16), Notice ofAction 11/5/1991 (Exh. "I"). Additionally, Petitioner was scheduled for a statutory interim hearing during October 1993. Id.
On January 16, 1997, Petitioner's prehearing assessment indicated that following to Petitioner's November 1991 statutory interim hearing, Petitioner had waived subsequent statutory interim hearings. Response (Doc. 16) Prehearing Assessment 1/16/1997 (Exh. "J"). On February 11, 1997, Petitioner received a statutory interim hearing/review hearing. Response (Doc. 16), SIH/Review Hr'g Summ. (Exh. "K"). The hearing examiner found two incidents of misconduct since his previous statutory interim hearing. Id. at 1-2. The examiner recommended no changes, and a continuance to Petitioner's fifteen (15) year reconsideration hearing in November 2004. Id. at 3. The examiner noted that Petitioner's aggregate guideline range should also be increased 0-4 months due to the institutional misconduct. Id. Accordingly, the Commission ordered no change in continuance to a 15 year reconsideration hearing in November 2004. Response (Doc. 16), Notice of Action 3/3/1997 (Exh. "L"). Additionally, the Commission ordered a 0-4 months increase in Petitioner's aggregate guideline...
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