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Barth v. Warden

August 25, 2009

LESLIE BARTH, PETITIONER,
v.
WARDEN, FCI FORT DIX AND UNITED STATES PAROLE OPINION COMMISSION, RESPONDENTS.



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

Petitioner Leslie Barth, a federal prisoner currently confined at the Federal Correctional Institution at Fort Dix, New Jersey ("FCI Fort Dix"), brings this civil action for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner maintains that as a result of a detainer lodged by Respondent United States Parole Commission ("Parole Commission") and the subsequent delay in holding a parole revocation hearing he has been deprived his constitution right to due process, and hence relief under Section 2241 is required. In particular, Petitioner asks the Court to order his immediate release and to require that Respondents schedule a prompt revocation hearing. Petitioner further requests release on the grounds that he may not be ordered to serve any additional time as a result of his parole violation. For the reasons discussed herein, Petitioner's application for a writ of habeas corpus will be denied.

I. BACKGROUND

Petitioner's present confinement arises out of two convictions, the first in 1994 and the second in 2007 while Petitioner was released on parole for the 1994 conviction. On May 11, 1994, the United States District Court for the District of Connecticut sentenced Petitioner to fifteen years incarceration, to be followed by a term of probation, for wire and mail fraud. Petitioner's criminal conduct occurred before November 1, 1987, the effective date of the United States Sentencing Guidelines, and so Petitioner remained eligible for parole for that offense. On September 18, 2002, the Parole Commission released Petitioner on parole, to remain under supervision until July 18, 2010. In addition, because of the nature of his sentence, Petitioner also began serving his term of probation. While released on parole and probation, Petitioner was arrested and pled guilty to one count of conspiracy to commit wire fraud under 18 U.S.C. § 371. On May 23, 2007, the United States District Court for the Southern District of New York sentenced Petitioner to thirty months incarceration for the new offense. Petitioner also pled guilty to violating his probation and received a six month concurrent sentence. In September, 2007, Petitioner began to serve his sentence for the new conviction.

On October 25, 2007, the Parole Commission issued a warrant charging Petitioner with violating the conditions of his parole and placed a detainer on him, stating that the warrant would be executed on his release from custody for the 2007 offense. The Commission proceeded with a dispositional review of the detainer and determined that it should remain in place pursuant to 28 C.F.R. § 2.47(b).*fn1 Thus, approximately six months after Petitioner learned that he was the subject of a detainer, the Parole Commission informed him that the detainer would remain in place.

Over the next twelve months, Petitioner made repeated attempts to both resolve his parole violation with the Parole Commission and to encourage the Commission to schedule a revocation hearing regarding the violation. Both efforts failed, for Petitioner rejected the offer of the Parole Commission as being too onerous and the Parole Commission declined to execute the parole revocation warrant and hold a revocation hearing before Petitioner completed his sentence for the 2007 conspiracy conviction.

During this period, Petitioner successfully completed the Residential Drug and Alcohol Program ("RDAP") at Fort Dix, as authorized by 18 U.S.C. § 3621(b). All of those prisoners who completed RDAP with Petitioner, except for Petitioner, were transferred to a halfway house to complete a six month community-based treatment program and then were awarded early release pursuant to 18 U.S.C. § 3621(e)(2)(B). Instead, Petitioner remained incarcerated and completed his sentence for the 2007 conviction on July 8, 2009, at which point the Parole Commission executed the parole violation warrant. It is Petitioner's understanding that the Parole Commission will conduct parole revocation hearings at Fort Dix in late August or September of 2009, and that any decision from that hearing will not become final for another two months after that date. Petitioner remains in custody at Fort Dix on the parole revocation warrant and is awaiting a parole revocation hearing.

II. DISCUSSION

A. Jurisdiction

Section 2241 of Title 28 of the United States Code provides, in relevant part:

(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within the respective jurisdictions

...

(c) The writ of habeas corpus shall not extend to a prisoner unless... (3) he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2241(a), (c)(3).

This Court has subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 2241(a) and (c) in that Mr. Barth challenges his custody in this district under the authority of the United States and in violation of the Constitution of the United States. See United States v. Ferri, 686 F.2d 147, 158 (3d Cir. 1982), cert. denied, 459 U.S. 1211 (1983)(claims attacking the execution of a petitioner's sentence are properly brought under 28 U.S.C. § 2241); see also Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) ("Section 2241 is the only statute that confers habeas jurisdiction to hear the petition of a federal prisoner who is challenging not the validity but the execution of his sentence."). Indeed, "Section 2241 of title 28 has long been recognized as the basis for challenging the execution of the sentence of a person ...


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