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Mellinger v. Graber

United States District Court, D. Arizona

September 1, 2015

Daniel Lee Mellinger, Petitioner,
v.
Warden Graber, Respondent.

REPORT AND RECOMMENDATION

MICHELLE H. BURNS, Magistrate Judge.

On August 14, 2014, Petitioner Daniel Lee Mellinger, an inmate currently incarcerated at the Federal Correctional Institution ("FCI"), Phoenix, Arizona, filed a pro se Petition for Writ of Habeas Corpus (hereinafter "habeas petition") pursuant to 28 U.S.C. §2241, raising one issue, that the United States Parole Commission ("USPC") does not have jurisdiction over Petitioner, and therefore he is illegally incarcerated. (Doc. 1, at 4.) Respondent filed an Answer on January 20, 2015. (Doc. 22.) Petitioner filed a Response to Respondent's Answer, which he titled Supplemental Response to the Government's Late Answer, on January 29, 2015. (Doc. 24.) Petitioner also filed, on February 20, 2015, a "Motion for Summary Judgement Per Rule 56(c), " raising the same issue, and also responding to some of the arguments made by Respondent in his Answer. (Doc. 26.) On March 23, 2015, Respondent filed a Response to Petitioner's Motion for Summary Judgment. (Doc. 27.) On April 9, 2015, Petitioner filed his Reply to Respondent's Answer, which he titled "Objections to Respondent's Reply." (Doc. 18.) Petitioner also filed a Motion to Rule and Allow Appeal. (Doc. 29.) Respondent filed a Response. (Doc. 30.)

BACKGROUND

On September 30, 1985, Petitioner was sentenced by the United States District Court for the Central District of California to an 18-year aggregate term of imprisonment for bank robberies committed between February 4 and March 4, 1985. (Doc. 17, Exh.[1] 1, at 6-8; Exhs. 2, 22.) On January 30, 1988, Petitioner was committed on his federal sentences, and, at the time, had zero "jail credit" days. (Exh. 1, at 9, 14.) On January 24, 1989, the USPC ordered that Petitioner serve to the expiration of his sentence, i.e., that he serve until required to be released pursuant to 18 U.S.C. §4163 "as if on parole" on his full term date (less accumulated good time credits.) (Id.; Exh. 3.)

On Aril 18, 1997, Petitioner was given a mandatory release pursuant to 28 U.S.C. §4163, requiring him to remain under the jurisdiction of the USPC "as if on parole" until November 27, 2003. (Exh. 6.) He had served approximately 110 months of his original sentence, and had 2593 days left to serve. (Exh. 1, at 9-14; Exh. 6.) Petitioner's parole guideline range by the time he was released was 112-182 months. (Exhs. 4, 5.) Thus, Petitioner's mandatory release came before the low end of his parole guidelines.

On March 23, 1998, the USPC revoked Petitioner's mandatory release for leaving the district of supervision without permission. (Exh. 7.) The USPC credited him with time spent on supervision, and ordered that he serve 12 months prior to reparole (on a guideline range of 12-16 months). (Id.) On February 9, 1999, Petitioner was reparoled, to remain under supervision until May 25, 2004. (Exh. 8.)

On June 13, 1999, Petitioner was arrested on new criminal charges for armed bank robbery. (See, U.S. District Court, Northern District of California, Case No. CR 99-20101-01-RMW, Presentence Report, paragraph 11.) On July 13, 1999, the USPC issued a warrant for again leaving the district of supervision without permission as well as failure to report a change in residence. (Exhs. 9, 10.) The USPC instructed the United States Marshals Service to assume custody of Petitioner when found, but that if he was already in custody, to place the USPC's warrant as a detainer. (Exh. 11.)

On January 28, 2000, Petitioner was sentenced to 188 months' imprisonment for armed bank robbery. (Exhs. 12; 1, at 1.) On March 7, 2002, Petitioner was sentenced to 30 months (consecutive) for possession of a prohibited object by an inmate. (Exh. 1, at 1-2.) Petitioner's 2000 and 2002 sentences were imposed pursuant to the Sentence Reform Act and therefore were not eligible for parole. The USPC's 1999 warrant was placed as a detainer and on May 15, 2007, the USPC supplemented its warrant with a charge of armed bank robbery. (Exh. 15.) On October 5, 2007, the USPC undertook a dispositional review of the detainer and ordered that it stand. (Exhs. 13, 14.)

In May, 2014, the USPC was informed that Petitioner's release date from his new sentences was July 18, 2014. (Exh. 16.) The USPC's warrant was executed on that date. (Exh. 17.) On August 5, 2014, the USPC again supplemented its warrant with the charge of possession of a prohibited object by an inmate. (Exh. 18.) On November 13, 2014, Petitioner received a parole revocation hearing. (Exh. 19.) On December 3, 2014, the USPC issued a Notice of Action revoking Petitioner's parole, and ordered: "None of the time spent on parole shall be credited. Continue to Expiration." (Exh. 20.) Although the USPC's decision may be administratively appealed, Respondent asserts that Petitioner has not filed an filed an administrative appeal, and Petitioner in his Reply does not establish otherwise.

The current computation of Petitioner's sentence by the Federal Bureau of Prisons shows Petitioner's expected mandatory release date as January 27, 2018, and the 180 day period in which he will be supervised as a mandatory release pursuant to 18 U.S.C. §4164, will end on May 5, 2019. (Exh. 21, at 2.)

HABEAS PETITION

Petitioner claims that the USPC does not have jurisdiction over him, and states the following facts in support of his claim:

The USPC was legislated out of existence by Congress with the SRA of 1984. The crimes I'm in custody for all occured in 1985. The USPC had until Nov 1, 1992 to give everyone dates. Then cease to exist. I was in custody past Nov 1, 1992 and released on April 18, 1997. Under this law, I was under supervision of the District Court. They have never filed a warrant and my sentence expired under its full 18 year term in 2003 or 2004. This current USPC got an extension by Congress in 1987 after my crimes. Under the laws in effect at the time I committed my crimes I would now be a free man under the amended statutes they have authority over me, except the U.S. Constitution forbids it. Ex Post Facto. The fact is anyone who ...

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