United States District Court, D. New Jersey
ROBERT B. KUGLER, District Judge.
Petitioner is a federal prisoner currently incarcerated at F.C.I. Fairton in Fairton, New Jersey. He is proceeding pro se with a petition for writ of mandamus pursuant to 28 U.S.C. § 1361. Petitioner claims that he is entitled to a parole revocation hearing. For the following reasons, the petition will be denied.
Petitioner was sentenced in 1978 in the United States District Court for the Southern District of New York to sixty years imprisonment to be followed by a twelve-year special parole term on his conviction for conspiracy to possess with intent to distribute heroin. On July 9, 2002, the United States Parole Commission (the "Commission") placed petitioner on parole from this sentence. Subsequently, effective June 18, 2007, the Commission discharged petitioner from parole and he began his twelve-year special parole term.
On November 27, 2007, the Commission received a letter from Michael F. Wasmer, a United States Probation Officer with the Southern District of New York. The letter indicated that petitioner was the target of an ongoing United States Department of Homeland Security, Bureau of Immigration and Customs Enforcement (BICE) criminal narcotics investigation. Additionally, the letter indicated that a BICE complaint/affidavit in support of an arrest warrant for petitioner and co-defendants had been issued on November 9, 2007.
On November 29, 2007, the Commission issued a warrant charging petitioner with violating the conditions of his special parole due to his failure to report to a supervising officer as directed. The warrant indicated that the last contact the United States Probation Officer had with petitioner was during a home visit on July 19, 2007. Furthermore, the warrant indicated that since that time, petitioner had been intentionally concealing himself from active supervision. ( See Dkt. No. 9-6 at p. 2.) The Commission then instructed the United States Marshal to assume custody of petitioner as soon as possible or when located. However, the instructions to the Marshal also stated as follows:
If the parolee is already in 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.
(Dkt. No. 9-7 at p. 2 (emphasis added).)
Petitioner was subsequently arrested on January 31, 2008 by the Marshals and was arraigned in the United States District Court for the Eastern District of New York on February 4, 2008. ( See Dkt. No. 9-20 at p. 10.) On February 7, 2008, a United States Probation Officer conducted a preliminary interview with petitioner at the Metropolitan Correctional Center in New York. The Probation Officer's summary report indicated that petitioner was arrested by the United States Marshals on the parole warrant. ( See Dkt. No. 9-8 at p. 2.) However, the parole violator warrant was never executed by the Marshal's Service. ( See Dkt. No. 9-6 at p. 5.) Indeed, the Marshal's Service advised the Commission that it had followed the Commission's instructions and did not execute the parole violator warrant because another warrant (petitioner's criminal arrest warrant) existed. ( See Dkt. No. 11 at p. 2.) Accordingly, the Commission indicated that petitioner's parole warrant remained lodged as a detainer. ( See Dkt. No. 9-12 at p. 2.)
On April 3, 2009, petitioner was sentenced in the United States District Court for the Eastern District of New York to twenty years imprisonment with ten years of supervised release for multiple charges involving importing and conspiracy to distribute a controlled substance. The Federal Bureau of Prisons ("BOP") issued a Detainer Action Letter to the Commission on September 11, 2009, which indicated that the parole violator warrant had been lodged as a detainer and that petitioner's release was scheduled for July 7, 2025 (Dkt. No. 9-14 at p. 2.) The Commission then notified the BOP on April 10, 2013 that the detainer was being reviewed as well as F.C.I. Fairton. ( See Dkt. No. 1 at p. 23.) The letter indicated that the Commission was conducting its review pursuant to 18 U.S.C. § 4214(b)(1) to determine whether the parole violator warrant should remain as a detainer. ( See id. ) Petitioner then indicated that he wished the services of an attorney, and one was then provided to him. ( See Dkt. No. 1 at p. 25, 26.) Appointed counsel then sent a letter to the Commission indicating that petitioner requested a parole revocation hearing. ( See Dkt. No. 9-16 at p. 2.) Appointed counsel was then contacted by the Commission to inquire whether he had submitted everything on his client's behalf before the Commission made a decision on the detainer. ( See Dkt. No. 9-17 at p. 2.) On February 25, 2014, the Commission informed petitioner and his appointed counsel that the detainer would stand. ( See Dkt. No. 9-18 at p. 2.)
Petitioner subsequently filed this petition for writ of mandamus in 2013. He claims that the Commission was required to hold a parole revocation hearing within sixty days of when it makes a determination of probable cause. According to petitioner, he was convicted on September 3, 2008 and sentenced on April 3, 2009. Thus, petitioner claims he has been in custody for over five years but has not been afforded a parole revocation hearing since his February 7, 2008 preliminary hearing. He also claims that he was entitled to have the detainer reviewed within 180 days ...