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Guidice v. U.S. Parole Commission

January 18, 2008

FRANK GUIDICE, PETITIONER,
v.
U.S. PAROLE COMMISSION, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kugler, District Judge

OPINION

Petitioner Frank Guidice, an inmate confined at the Federal Correctional Institution at Fairton, New Jersey, filed a Petition seeking a writ under 28 U.S.C. §1361 or § 2241 directing the United States Parole Commission to execute a parole violator warrant and conduct a parole revocation hearing prior to the expiration of his current federal sentence June 23, 2009. Respondents filed an Answer, together with several exhibits, seeking dismissal of the Petition on the merits, and Petitioner filed a Reply. For the reasons expressed below, this Court will dismiss the Petition with prejudice.

I. BACKGROUND

Petitioner challenges the failure of the United States Parole Commission ("Parole Commission") to execute a parole violator warrant and conduct a parole revocation hearing prior to the expiration of his current federal sentence June 23, 2009. The facts are not in dispute. In October 1985, the United States District Court for the Eastern District of New York sentenced Petitioner to a nine-year term of imprisonment, followed by five years of special parole, based on his conviction for conspiracy and distribution of heroin. On April 13, 1990, the Parole Commission released Petitioner on parole until October 12, 1999. While Petitioner was on special parole, federal officials arrested him on new federal charges in the Eastern District of New York. On September 1, 1999, the Parole Commission issued a warrant for violation of special parole based on his arrest by the FBI on charges for robbery and use of a firearm. In a memorandum dated September 1, 1999, the Parole Commission advised Petitioner's probation officer that the Commission had issued the parole violator warrant but was holding it in abeyance and unexecuted pending the outcome of the new criminal charges.

On January 12, 2001, the United States District Court for the Eastern District of New York sentenced Petitioner to an aggregate term of 123 months in prison, followed by three years of supervised release, based on his new conviction for conspiracy to rob, attempted robbery and use of a firearm. Petitioner is currently serving this sentence. His projected release date is June 23, 2009.

By letter dated June 6, 2001, the Parole Commission notified the warden of the facility wherein Petitioner was confined that the Commission had issued a warrant on September 1, 1999, and requested that the warrant be lodged as a detainer, and that Petitioner be notified. The letter stated that the Commission would conduct an on-the-record dispositional review, pursuant to 18 U.S.C. § 4214(b)(1), within 180 days to determine whether the parole violator warrant should stand as a detainer. The letter indicated that Petitioner could complete the enclosed Application for Dispositional Review and apply for court-appointed counsel within 30 days. Accompanying the letter was a Notice of Pending Dispositional Review on the Record which notified Petitioner that a parole violator warrant has been placed as a detainer; the Commission would conduct a dispositional review to determine whether to let the warrant stand as a detainer; Petitioner could mail a statement to the Commission regarding the Dispositional Review by August 1, 2001; and he had a right to request counsel to assist him with the application regarding disposition of the warrant.

By letter dated July 26, 2001, attorney Vivian Shevitz commented on Petitioner's behalf regarding the disposition of the warrant. Specifically, Ms. Shevitz objected to the issuance of the warrant, requested that the warrant be vacated because Petitioner was not properly notified of its issuance on September 1, 1999, and informed the Commission that Petitioner's current conviction was on appeal and that his sentence was enhanced because the offense was committed while Petitioner was on parole.

On September 6, 2001, the Parole Commission issued a Notice of Action informing Petitioner and the warden that the Commission would let the detainer stand.

Petitioner thereafter asked the Parole Commission to execute the parole violator warrant and revoke his parole prior to the expiration of his federal sentence on June 23, 2009. Specifically, by letter dated April 11, 2007, attorney Linda S. Sheffield asked the Commission to execute the parole violator warrant immediately on the grounds that, since the Commission would revoke Petitioner's parole and impose a parole violator term that will be absorbed by his current sentence, execution of the warrant after completion of the sentence would cause Petitioner to remain in prison for up to 90 additional days beyond his term in violation of due process. By letter dated April 16, 2007, to Ms. Sheffield, the Parole Commission stated that it had previously determined to allow the warrant to stand as a detainer and indicated that Petitioner would receive a parole revocation hearing within 90 days of execution of the warrant upon the expiration of his sentence. By letter dated June 5, 2007, Petitioner asked the Parole Commission to reconsider the decision to let the warrant stand until the expiration of his sentence. Petitioner stated that the detainer makes him ineligible for halfway house placement and creates uncertainty as to when he will be released. On July 25, 2007, the Parole Commission informed Petitioner that it would not reopen his decision.

Petitioner executed the Petition before this Court on June 26, 2007. The Clerk received it on July 2, 2007. The Petition raises two grounds:

Ground One: THE DECISION OF THE UNITED STATES PAROLE COMMISSION NOT TO HOLD A REVOCATION HEARING UNTIL THE COMPLETION OFF MR. GUIDICE'S SENTENCE WAS BOTH UNREASONABLE AND PREJUDICIAL.

Ground Two: THE PETITIONER FRANK GUIDICE IS ENTITLED TO AN ORDER TO COMPEL DIRECTING THE UNITED STATES PAROLE COMMISSION TO EXECUTE THEIR PROLE WARRANT PURSUANT TO 28 U.S.C. § 1361.

(Pet. Grounds One and Two, pp. 4, 10.)

This Court ordered Respondents to file an answer and to include in the answer compliance with 18 U.S.C. § 4214(b). Respondents filed an Answer, together with the certificate of Sharon Gervasoni and several documents. Respondents argue that the Petition should be dismissed because the Parole Commission complied with 18 U.S.C. § 4214(b) and Petitioner has no statutory or ...


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