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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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Lee Mellinger,
Petitioner,

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ORDER

v.

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No. CV-13-02191-PHX-DGC

Warden Graber,

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Respondent.

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Petitioner Daniel Lee Mellinger filed a Petition for Writ of Habeas Corpus

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pursuant to 28 U.S.C. § 2241. Doc. 1. On July 22, 2014, United States Magistrate Judge

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Michelle H. Burns issued a report and recommendation (“R&R”) recommending that the

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petition be dismissed with prejudice. Doc. 19 at 7. The Court will accept the R&R.

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I.

Background.

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At the time Petitioner filed his petition, he was serving sentences for Armed Bank

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Robbery and Possession of a Prohibited Object by an Inmate at the Federal Correctional

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Institution (“FCI”) in Phoenix, Arizona. Doc. 10-1 at 3. Petitioner was scheduled to be

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released from custody on July 19, 2014, after serving his federal sentence. Doc. 16-1

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at 4. Unfortunately for Petitioner, he is subject to a United States Parole Commission

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(“USPC”) detainer lodged against him for a previous parole violation.

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When a parolee is alleged to have violated the terms of his release, the USPC may

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“[i]ssue a warrant for the apprehension and return of the offender to custody.”

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28 C.F.R. § 2.44(a)(2). If the parolee “is serving a new sentence in a federal, state, or

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local institution, a parole violation warrant may be placed against him as a detainer.”

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28 C.F.R. § 2.47(a). Petitioner was notified in 2007 that USPC had issued a parole

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violator warrant and placed it against him as a detainer.

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Pursuant to a Memorandum of Understanding (“MOU”) executed by the Bureau

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of Prisons (“BOP”) and the United States Marshall Service (“USMS”) in 2007, the BOP

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holds inmates who are “parole violators,” defined as inmates being held on violator

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warrants pending parole revocation hearings. Doc. 16-1 at 2-3. The MOU discusses

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which agency will house parole violators. When an inmate is located at a BOP facility,

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BOP will retain custody of the inmate. Under the MOU, it is the practice of FCI Phoenix

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that a parole violator who has completed his BOP sentence be released from the federal

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sentence and immediately re-arrested under the MOU. Doc. 16-1 at 3. BOP then

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forwards copies of the executed warrant to the USPC and houses the inmate on the parole

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violator warrant pending a parole revocation hearing. Id. When the inmate is released

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from BOP and re-arrested on the parole violator warrant, the inmate is no longer a

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sentenced BOP inmate but is a USMS detainee temporarily housed by BOP pursuant to

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the MOU. Id. at 4. The parole revocation hearing must occur within 90 days of the “date

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of the execution of the violator warrant upon which the parole was retaken.”

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28 C.F.R. § 2.49(f).

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II.

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Discussion.
Petitioner challenged the BOP’s refusal to place him in a halfway house to

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complete his sentence based on the USPC detainer lodged against him.

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Petitioner claimed that the detainer “is not a detainer in the normal sense” because it is “a

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notice of action for an administrative procedure.” Doc. 1 at 4. The government argued

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that Petitioner’s habeas petition would become moot on July 18, 2014 because Petitioner

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would no longer be in BOP custody; instead, USPC would control the length and location

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of Petitioner’s detention after July 18, 2014. Doc. 16 at 3-4. The Court agrees with the

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government. Because Petitioner has completed his BOP sentence, BOP’s failure to

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designate him to halfway house placement prior to the completion of his term is no

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longer a live controversy.

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Doc. 1.

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Petitioner objects to the R&R on the grounds that the USPC’s continued authority

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over his parole violates the ex post facto clause of the Constitution. Doc. 22 at 1. After

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carefully reviewing Petitioner’s habeas petition, it is clear that the petition did not

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challenge the USPC’s authority to continue exercising authority over him after his BOP

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term expired. Instead, it challenged the denial of placement in a halfway house pending

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resolution of his parole issues and the relief requested was placement in a halfway house.

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Doc. 1 at 1, 4, 6. The Court need not consider Petitioner’s new arguments.

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Even if Petitioner had raised his ex post facto clause argument in the pending

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habeas petition, the Court would not consider it. Petitioner has filed two previous habeas

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petitions challenging the USPC detainer. See Mellinger v. Bauknecht, 0:06-cv-03441-

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RBH, 2007 WL 4276415 (D.S.C. Nov. 29, 2007); Mellinger v. Gutierrez, 536 F. App’x

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729 (9th Cir. 2013). Petitioner did not raise his ex post facto clause argument in either of

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his previous habeas petitions. Because Petitioner could have challenged the authority of

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the USPC to proceed against him in his previous habeas petitions but chose not to, the

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Court will not address Petitioner’s ex post facto clause argument. McCleskey v. Zant, 499

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U.S. 467, 489-93 (1991) (explaining that the doctrine of abuse of writ is not confined to

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instances of deliberate abandonment; instead, a petitioner can abuse the writ by raising a

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claim in a subsequent petition that he could have raised in a previous petition, regardless

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of whether failure to raise the claim stemmed from a deliberate choice).

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IT IS ORDERED:

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1.

The R&R (Doc. 19) is accepted.

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2.

Petitioner’s remaining motions (Docs. 12, 17, 20) are denied as moot.

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3.

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is dismissed with
prejudice.

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4.

The Clerk is directed to terminate this action.

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Dated this 29th day of August, 2014.

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