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Warren v. Apker

United States District Court, D. Arizona

March 6, 2014

Gary Ronald Warren, Petitioner,
v.
Craig Apker, Respondent.

REPORT AND RECOMMENDATION (AMENDED)

BRUCE G. MACDONALD, Magistrate Judge.

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) and deny 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 XX-XXX-XX), "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 subtracting presentence 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. The prehearing 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 of Action 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 range, and requested that BOP provide a current psychiatric/psychological report to the Commission prior to the next statutory interim hearing, which it scheduled for February 1999. Id.

On September 13, 2006, Petitioner received a fifteen (15) year reconsideration hearing. Response (Doc. 16), Hr'g Summ. 9/13/2006 (Exh. "N"). The Commission ordered a continuance to a fifteen (15) year reconsideration hearing in September 2021. Response (Doc. 16), Notice of Action 10/18/2006 (Exh. "O"). The Commission assessed Petitioner's severity category, salient factor score and guideline ranges in light of his criminal history, institutional offenses, and multiple escapes. Id. The Commission calculated Petitioner's aggregate guideline range as 412-582 months to be served. Id. Petitioner appealed the Commission's ruling, and the National Appeals Board ("NAB") affirmed. Response (Doc. 16), Notice of Action on Appeal 7/23/2007 (Exh. "P"). Although the NAB erroneously references "the hearing examiner who presided at your revocation hearing[, ]" the issues regarding the hearing examiners recommendation and Petitioner's eligibility for sex offender treatment arose from Petitioner's fifteen (15) year reconsideration hearing in September 2006. See id; Response (Doc. 16), Exhs. "N" & "O". In affirming the Commission's actions, the NAB found that "because [Petitioner is] a Category Seven offender who committed multiple robberies, escaped from secure custody four times, and committed bank robbery while in escape status, the public safety precludes a release date at this time." Response (Doc. 16), Exh. "P." The NAB further found "that the public safety outweighs [Petitioner's] need to qualify for pre-release sex offender treatment." Id.

On January 4, 2011, Petitioner received a statutory interim hearing. Response (Doc. 16), Hr'g Summ. 1/4/2011 (Exh. "Q"). The hearing examiner recommended no change in Petitioner's fifteen (15) year reconsideration hearing date of September 2021. Id. at 2. The hearing examiner cited Petitioner's criminal history, including four escapes from incarceration, and little program participation as a basis for his recommendation. Id. The Commission ordered no change in Petitioner's fifteen (15) year reconsideration date of September 2021. Response (Doc. 16), Notice of Action 2/14/2011 (Exh. "R"). The Commission scheduled Petitioner's next statutory interim hearing during January 2013. Id. Petitioner appealed the Commission's decision. Petition (Doc. 1), Appeal 4/6/2011. Petitioner challenged the aggregation of his sentences; the Commission's and/or BOP's alleged failure to parole him at the expiration of his two-thirds date calculated solely from his initial forty (40) year sentence; the Commission's alleged failure to find him ineligible for parole prior to May 2009, or alternatively July 2002, in violation of his due process rights; that the Commission's jurisdiction expired on November 1, 2002; the alleged denial of interim hearings; the alleged denial of ever qualifying for parole; alleged illegal use of the Federal Savings Clause to extend the life of the Commission; and the alleged failure of the Director of BOP and the Commission to uphold any of the laws cited by Petitioner. Id. The NAB stated that Petitioner had been convicted "solely under the U.S. Code." Response (Doc. 16), Not. of Action on Appeal 5/4/2012 (Exh. "S"). Accordingly, Petitioner is "considered for parole on the basis of a single parole eligibility and mandatory release date." Id. The NAB directed Petitioner to address any disputes regarding his parole eligibility date or mandatory release date "with the Records Office which will determine the validity of [his] claims and notify the Commission of any modification." Id. The NAB further found Petitioner's jurisdictional argument without merit, and stated "the Commission has lawfully maintained jurisdiction over [him]." Id. The NAB affirmed the Commission's decision. Id.

On April 25, 2012, Petitioner filed a Petition Under 28 U.S.C. § 2241 for a Writ of Habeas Corpus by a Person in Federal Custody (Doc. 1). Petitioner challenges 1) the aggregation of his sentences; 2) the calculation of his "two-thirds mandatory good time release date" alleging violation of his due process and equal protection rights (mandatory parole); 3) the alleged violation of his due process and equal protection rights and the Ex Post Facto clause of the Constitution of the United States in the calculation of Petitioner's guideline dates (guideline date calculation); 4) the alleged violation of his due process and equal protection rights in the Commission's alleged failure to determine Petitioner's ineligibility for parole prior to his alleged "suitability' date of July 2009" as required by 18 U.S.C. 4206(d); 5) the alleged violation of his due process and equal protection and rights and the Ex Post Facto clause of the Constitution of the United States in the calculation of his guideline range and the Commission's alleged failure to make a finding of ineligibility before the expiration thereof; 6) the alleged violation of his due process rights in the continued use of the allegedly expired Commission; 7) the alleged violation of his due process and equal protection and rights and the Ex Post Facto clause of the Constitution of the United States based on the alleged expiration of 18 U.S.C. §§ 4201-4218(d) thereby prohibiting Petitioner from correcting perceived violations of federal law; 8) the alleged violation of his due process and equal protection rights based on the alleged expiration of 18 U.S.C. §§ 4201-4218(d) and subsequent alleged prohibition of Petitioner from qualifying for parole; and 9) the alleged violation of his Fifth and Eighth Amendment rights and the Ex Post Facto clause of the Constitution of the United States based upon the allegedly "illegal[] use[] by Congress" of the Federal Savings Clause to extend the life of the Commission. See Petition (Doc. 1).

II. ANALYSIS

A. Jurisdiction

"Federal courts are always under an independent obligation to examine their own jurisdiction, '... and a federal court may not entertain an action over which it has no jurisdiction." Hernandez v. Campbell, 204 F.3d 861, 865 (9th Cir. 2000) ( quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), overruled in part on other grounds by City of Littleton, Colo. v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004)). "Generally, motions to contest the legality of a sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court." Id. at 864. Therefore, a proper characterization of the petition is necessary to a determination of jurisdiction. Id.

Here, Petitioner does not claim that the sentencing court imposed an illegal sentence, rather he seeks relief with respect to the calculation of his parole eligibility and Commission findings regarding his suitability for parole while incarcerated at a federal facility. As such, Petitioner is challenging the manner, location or condition of the execution of his sentence. See e.g., United States v. Saeteurn, 504 F.3d 1175, 1180 n. 12 (9th Cir. 2007) ("a habeas petition brought pursuant to § 2241 is sufficient to safeguard a prisoner's right to be considered eligible for early release."); Ramirez v. Galaza, 334 F.3d 850, 858 (9th Cir. 2003) ("a prisoner may seek a writ of habeas corpus under 28 U.S.C. § 2241 for expungement of a disciplinary finding from his record if expungement is likely to accelerate the prisoner's eligibility of parole.'") ( quoting Bostic v. Carlson, 884 F.2d 1267, 1269 (9th Cir. 1989)); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir. 1991) (a prisoner's challenge to the "manner in which his sentence was executed... [is] maintainable only in a petition for habeas corpus filed pursuant to 28 U.S.C. § 2241."); Weinstein v. U.S. Parole Comm'n., 902 F.2d 1451, 1452 (9th Cir. 1990) ("The district court had jurisdiction pursuant to 28 U.S.C. § 2241 to review a claim by a federal prisoner challenging a decision of the United States Parole Commission."); Rogers v. United States, 180 F.3d 349 (1st Cir. 1999) (section 2241 petition is appropriate vehicle to challenge the correctness of a jail-time credit determination, once administrative remedies have been exhausted). Such a challenge must be brought pursuant to § 2241 in the custodial court. At the time of filing the Petition, Petitioner was incarcerated at USP - Tucson in Arizona. Accordingly, this Court has jurisdiction over this matter. Francis v. Rison, 894 F.2d 353 (9th Cir. 1990).

B. Exhaustion

The Ninth Circuit Court of Appeals has stated:

[28 U.S.C. § 2241] does not specifically require petitioners to exhaust direct appeals before filing petitions for habeas corpus. [Footnote omitted.] However, we require, as a prudential matter, that habeas petitioners exhaust available judicial ...

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