United States District Court, D. South Carolina
REPORT AND RECOMMENDATION
V. Hodges United States Magistrate Judge.
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. 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.
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].
carefully considered the parties' submissions and the
record in this case, the undersigned recommends that the
court grant Respondent's motion for summary judgment.
Factual and Procedural Background
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
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].
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”). 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
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.
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].
Standard on ...