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Thomas v. Warden of FCI-Edgefield

United States District Court, D. South Carolina

September 20, 2017

Raymond Thomas, #05447-050, Petitioner,
v.
Warden of FCI-Edgefield, Respondent.

          REPORT AND RECOMMENDATION

          Shiva V. Hodges United States Magistrate Judge.

         Raymond Thomas (“Petitioner”), proceeding pro se, filed this petition seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is a federal inmate incarcerated at Federal Correctional Institution Phoenix.[1] This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civ. Rule 73.02(B)(2)(c) (D.S.C.) for a Report and Recommendation on Respondent's motion to dismiss/summary judgment. [ECF No. 16].[2] Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Petitioner of the summary judgment and dismissal procedures and the possible consequences if he failed to respond adequately to Respondent's motion. [ECF No. 17]. Petitioner filed a response on April 18, 2017. [ECF No. 20].[3]

         Having carefully considered the parties' submissions and the record in this case, the undersigned recommends that the court grant Respondent's motion for summary judgment.

         I. Factual and Procedural Background

         Petitioner states he was sentenced to 34 years on May 25, 1983, in the United States District Court, District of New Jersey after pleading guilty to assault with a dangerous weapon during the commission of a bank robbery. [ECF No. 1-2 at 2]. Petitioner's sentence was subsequently reduced to 30 years. [ECF No. 16-1 at 3]. Petitioner was released on parole on December 9, 1999, to be under supervision until his full term date of December 9, 2012. [ECF No. 16-2]. Petitioner alleges he was arrested in Florida on October 2, 2003, on state charges of robbery with a firearm, aggravated battery, assault, and resisting arrest. [ECF No. 1-2 at 3]. On November 19, 2003, Petitioner's probation officer forwarded a violation report to the United States Parole Commission (“Commission”) notifying it of Petitioner's arrest. [ECF No. 16-3]. On December 1, 2003, the Commission issued a parole violator warrant alleging parole violations based on the pending Florida charges. [ECF No. 16-4]. Specifically, in the “Warrant Application & Warrant, ” the U.S. Marshals were instructed as followed:

         Please assume custody as soon as possible or when located.

If the parolee is already in the custody of federal or state authorities, do not execute this warrant. Place a detainer and notify the Commission. Also, if a criminal arrest warrant has been issued for this parolee, execution of such criminal warrant shall take precedence.
If the prisoner is sentenced to a new Federal or State term of imprisonment, place the warrant as a detainer and indicate the institution designated for service of sentence.

Id. Petitioner states he was sentenced on March 3, 2004, to 10 years in the Florida Department of Corrections. [ECF No. 1-2 at 3]. Petitioner was released from the Florida Department of Corrections, and, on September 27, 2013, the U.S. Marshals executed the warrant and took Petitioner into federal custody. [ECF No. 16-6]. On October 29, 2013, the Commission supplemented Petitioner's warrant to reflect that he had been convicted and sentenced on the Florida charges and noted that a preliminary interview was not required. [ECF No. 16-7]. The Commission also found probable cause for the violations charged in the warrant based on the Florida convictions. [ECF No. 16-8]. An institutional revocation hearing was held on April 8, 2014, and the hearing examiner recommended that Petitioner's parole be revoked, with a reparole guideline range of 64-78 months. [ECF No. 16-14 at 3]. An executive reviewer found Petitioner was a more serious risk based on his criminal history and recommended that the Commission order him to continue in custody until the expiration date of his sentence. Id. On May 7, 2014, the Commission adopted the reviewer's recommendation and reasons, revoked Petitioner's parole, and ordered Petitioner “continue to expiration” or until the recalculated full-term date of the sentence, less good time. [ECF No. 16-15].

         This is the third 28 U.S.C. § 2241 petition Petitioner has filed challenging the Commission's alleged failure to provide him with a timely parole revocation hearing. Petitioner filed his first petition on January 22, 2014, in the Middle District of Florida. Thomas v. Federal Parole Comm. and Isaac Fulwood, Jr., No. 2:13-cv-770-SPC-DNF (April 4, 2014) (“Thomas I”).[4] In Thomas I, Petitioner claimed the Commission violated his due process rights when the Commission failed to provide a parole revocation hearing after the U.S. Marshals lodged a detainer on Petitioner in 2003. Id., ECF No. 10. Petitioner also contended that his federal sentence expired on December 9, 2012. Id. In dismissing the petition, the Thomas I court found United States Supreme Court and Fifth Circuit Court of Appeals precedent foreclosed Petitioner's claim for relief. Id., ECF No 14. The court noted that the delay in holding a revocation hearing did not violate due process because Petitioner was in custody on an intervening conviction when the warrant was issued and lodged. Id. The court found that a parolee only suffers a loss of liberty requiring a hearing once a warrant is executed and the parolee taken into custody. Id.

         Petitioner filed a second § 2241 petition in this court on July 29, 2014. See Thomas v. Fulwood, C/A No. 1:14-3014-RMG (D.S.C. Oct. 1, 2014) (“Thomas II”). In Thomas II, Petitioner again argued his due process rights were violated because he did not promptly receive a revocation hearing after the detainer was lodged in 2003, and the Commission did not address his parole violation until he finished serving his state sentence. Id., ECF No. 1. This court dismissed the petition, without prejudice, finding Petitioner did not have a constitutional right to a hearing until the warrant was executed. Id., ECF No. 12. The court further found that Petitioner's parole violation in 2003 subjected Petitioner to the possibility of being returned to prison to serve his original sentence consecutively with the new sentence, and thereby voided the original 2012 parole termination date. Id. Petitioner appealed the denial of his petition, id., ECF No. 15, and on December 19, 2014, the Fourth Circuit Court of Appeals affirmed the district court's order. Id., ECF No. 20.

         In the instant petition, Petitioner alleges that his due process rights were violated when the Commission did not address his parole violation until 10 years after the violation warrant was served. [ECF No. 1-2]. Petitioner further claims he did not receive a copy of his pending review or have an opportunity to submit a written application containing information relative to the disposition of the detainer. Id. Petitioner also argues the Commission lost jurisdiction over him on December 9, 2012, the date his parole expired. Id. Petitioner seeks immediate release. [ECF No. 1 at 9].

         II. Discussion

         A. Standard on ...


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