Mellinger v. Garber

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATION, the 19 Report and Recommendation is accepted; Petitioner's remaining motions 12 , 17 , 20 are denied as moot; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed with prejudice; the Clerk is directed to terminate this action. Signed by Judge David G Campbell on 8/29/14. (REW)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Daniel Lee Mellinger, Petitioner, 10 11 ORDER v. 12 No. CV-13-02191-PHX-DGC Warden Graber, 13 Respondent. 14 Petitioner Daniel Lee Mellinger filed a Petition for Writ of Habeas Corpus 15 pursuant to 28 U.S.C. § 2241. Doc. 1. On July 22, 2014, United States Magistrate Judge 16 Michelle H. Burns issued a report and recommendation (“R&R”) recommending that the 17 petition be dismissed with prejudice. Doc. 19 at 7. The Court will accept the R&R. 18 I. Background. 19 At the time Petitioner filed his petition, he was serving sentences for Armed Bank 20 Robbery and Possession of a Prohibited Object by an Inmate at the Federal Correctional 21 Institution (“FCI”) in Phoenix, Arizona. Doc. 10-1 at 3. Petitioner was scheduled to be 22 released from custody on July 19, 2014, after serving his federal sentence. Doc. 16-1 23 at 4. Unfortunately for Petitioner, he is subject to a United States Parole Commission 24 (“USPC”) detainer lodged against him for a previous parole violation. 25 When a parolee is alleged to have violated the terms of his release, the USPC may 26 “[i]ssue a warrant for the apprehension and return of the offender to custody.” 27 28 C.F.R. § 2.44(a)(2). If the parolee “is serving a new sentence in a federal, state, or 28 local institution, a parole violation warrant may be placed against him as a detainer.” 1 28 C.F.R. § 2.47(a). Petitioner was notified in 2007 that USPC had issued a parole 2 violator warrant and placed it against him as a detainer. 3 Pursuant to a Memorandum of Understanding (“MOU”) executed by the Bureau 4 of Prisons (“BOP”) and the United States Marshall Service (“USMS”) in 2007, the BOP 5 holds inmates who are “parole violators,” defined as inmates being held on violator 6 warrants pending parole revocation hearings. Doc. 16-1 at 2-3. The MOU discusses 7 which agency will house parole violators. When an inmate is located at a BOP facility, 8 BOP will retain custody of the inmate. Under the MOU, it is the practice of FCI Phoenix 9 that a parole violator who has completed his BOP sentence be released from the federal 10 sentence and immediately re-arrested under the MOU. Doc. 16-1 at 3. BOP then 11 forwards copies of the executed warrant to the USPC and houses the inmate on the parole 12 violator warrant pending a parole revocation hearing. Id. When the inmate is released 13 from BOP and re-arrested on the parole violator warrant, the inmate is no longer a 14 sentenced BOP inmate but is a USMS detainee temporarily housed by BOP pursuant to 15 the MOU. Id. at 4. The parole revocation hearing must occur within 90 days of the “date 16 of the execution of the violator warrant upon which the parole was retaken.” 17 28 C.F.R. § 2.49(f). 18 II. 19 Discussion. Petitioner challenged the BOP’s refusal to place him in a halfway house to 20 complete his sentence based on the USPC detainer lodged against him. 21 Petitioner claimed that the detainer “is not a detainer in the normal sense” because it is “a 22 notice of action for an administrative procedure.” Doc. 1 at 4. The government argued 23 that Petitioner’s habeas petition would become moot on July 18, 2014 because Petitioner 24 would no longer be in BOP custody; instead, USPC would control the length and location 25 of Petitioner’s detention after July 18, 2014. Doc. 16 at 3-4. The Court agrees with the 26 government. Because Petitioner has completed his BOP sentence, BOP’s failure to 27 designate him to halfway house placement prior to the completion of his term is no 28 longer a live controversy. -2- Doc. 1. 1 Petitioner objects to the R&R on the grounds that the USPC’s continued authority 2 over his parole violates the ex post facto clause of the Constitution. Doc. 22 at 1. After 3 carefully reviewing Petitioner’s habeas petition, it is clear that the petition did not 4 challenge the USPC’s authority to continue exercising authority over him after his BOP 5 term expired. Instead, it challenged the denial of placement in a halfway house pending 6 resolution of his parole issues and the relief requested was placement in a halfway house. 7 Doc. 1 at 1, 4, 6. The Court need not consider Petitioner’s new arguments. 8 Even if Petitioner had raised his ex post facto clause argument in the pending 9 habeas petition, the Court would not consider it. Petitioner has filed two previous habeas 10 petitions challenging the USPC detainer. See Mellinger v. Bauknecht, 0:06-cv-03441- 11 RBH, 2007 WL 4276415 (D.S.C. Nov. 29, 2007); Mellinger v. Gutierrez, 536 F. App’x 12 729 (9th Cir. 2013). Petitioner did not raise his ex post facto clause argument in either of 13 his previous habeas petitions. Because Petitioner could have challenged the authority of 14 the USPC to proceed against him in his previous habeas petitions but chose not to, the 15 Court will not address Petitioner’s ex post facto clause argument. McCleskey v. Zant, 499 16 U.S. 467, 489-93 (1991) (explaining that the doctrine of abuse of writ is not confined to 17 instances of deliberate abandonment; instead, a petitioner can abuse the writ by raising a 18 claim in a subsequent petition that he could have raised in a previous petition, regardless 19 of whether failure to raise the claim stemmed from a deliberate choice). 20 IT IS ORDERED: 21 1. The R&R (Doc. 19) is accepted. 22 2. Petitioner’s remaining motions (Docs. 12, 17, 20) are denied as moot. 23 3. Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is dismissed with prejudice. 24 25 4. The Clerk is directed to terminate this action. 26 Dated this 29th day of August, 2014. 27 28 -3-

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