(HC) Staich v. US Parole Commissioner

Filing 26

ORDER GRANTING Respondent's 15 Motion to Dismiss, signed by Magistrate Judge Helena M. Barch-Kuchta on 11/18/2021. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IVAN VON STAICH,

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Petitioner,

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Case No. 1:21-cv-00628-HBK
ORDER GRANTING RESPONDENT’S
MOTION TO DISMISS1

v.
(Doc. No. 15)

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US PAROLE COMMISSIONER,

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Respondent.

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Petitioner Ivan Von Staich initiated this action by filing a pro se petition for writ of

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mandamus under 28 U.S.C. § 1651. (Doc. No. 1). Before the Court is Respondent’s motion to

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dismiss. (Doc. No. 15). Respondent filed an Appendix in support of its motion. (Doc. No. 15-1).

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Petitioner filed an opposition to the motion. (Doc. No. 22). For the reasons set forth below, the

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Court grants Respondent’s motion.

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I. BACKGROUND

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Petitioner filed the instant petition on March 25, 2021, seeking relief through writ of

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mandamus under 28 U.S.C. § 1651. (Doc. No. 1). Petitioner requested the Court to direct the

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U.S. Parole Commission to “cease and terminate all federal parole violation proceedings” arising

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from his 1980 conviction for mailing threatening communications in violation of 18 U.S.C. § 876.

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Both parties have consented to the jurisdiction of a magistrate judge, in accordance with 28 U.S.C.
§ 636(c)(1). (Doc. No. 21).

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(Id.). On August 3, 2021, the Court ordered Respondent to respond to the petition and to provide

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information regarding the status and nature of Petitioner’s custody. (Doc. No. 13).

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Respondent’s response and accompanying appendix reveals the following facts. On June

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9, 1980, Petitioner pled guilty to mailing threatening letters to his ex-girlfriend, including threats

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to murder her and her family members. (Doc. No. 15-1 at 2). Petitioner was sentenced to 5 years

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in prison. (Id. at 3). On November 14, 1983, Petitioner was released on parole with the condition

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that he not contact or communicate with his ex-girlfriend. (Id. at 7). On December 7-8, 1983,

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Petitioner violated the conditions of his release and murdered his ex-girlfriend’s husband and

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attempted to murder his ex-girlfriend. (Id. at 9). Petitioner was then held in state custody for

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these state crimes. (Doc. No. 15 at 2). The U.S. Parole Commission also obtained an arrest

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warrant for Petitioner for violations of his release conditions on December 8, 1983. (Doc. No.

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15-1 at 8-10). On May 30, 1986, Petitioner was sentenced to 30-years-to-life in state prison for

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murder and attempted murder. (Doc. No. 15 at 2). On December 4, 2020, Petitioner was granted

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parole from his state sentence. (Id.). On that same day, this Court’s arrest warrant (issued

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December 8, 1983) was executed, and Petitioner was taken into federal custody. (Id.).

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On January 21, 2021, the U.S. Parole Commission recommended that Petitioner’s parole

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be revoked and that he be held in federal custody until December 4, 2021. (Doc. No. 15-1 at 16).

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On April 15, 2021, Petitioner accepted an Expedited Revocation Proposal in which Petitioner

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agreed to parole revocation and a federal custody release date of December 4, 2021. (Id. at 21).

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In response to Petitioner’s acceptance of the Expedited Revocation Proposal, the U.S. Parole

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Commission issued a Notice of Action and revoked mandatory release and ordered Petitioner’s

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parole to be effective on December 4, 2021. (Id. at 22-24).

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II. APPLICABLE LAW
Under 28 U.S.C. § 1651, federal courts may issue writs “in aid of their respective

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jurisdictions.” This court has original jurisdiction under 28 U.S.C. § 1361 to issue writs of

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mandamus. That jurisdiction is limited, however, to writs of mandamus to “compel an officer or

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employee of the United States or any agency thereof to perform a duty.” 28 U.S.C. § 1361.

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Moreover, “[t]he writ of mandamus is a ‘drastic and extraordinary’ remedy ‘reserved for really
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extraordinary causes.’” In re Van Dusen, 654 F.3d 838, 840 (9th Cir. 2011) (quoting Ex parte

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Fahey, 332 U.S. 258, 259–60 (1947)). See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485

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U.S. 271, 289 (1988) (“This Court repeatedly has observed that the writ of mandamus is an

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extraordinary remedy, to be reserved for extraordinary situations.”). Mandamus relief is only

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available when (1) the petitioner's claim is clear and certain; (2) the duty is ministerial and so

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plainly prescribed as to be free from doubt; and (3) no other adequate remedy is available.

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Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003); Patel v. Reno, 134 F.3d 929, 931 (9th Cir.

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1998).

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III. ANALYSIS
In his initial Petition, filed on March 25, 2021, Petitioner asked the Court to order

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Respondent to “‘cease and terminate’ all federal parole violation proceedings in the name” of

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Petitioner. (Doc. No. 1 at 6-7). Subsequently, on April 15, 2021, Petitioner agreed to the

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proposed parole revocation and federal custody release date of December 4, 2021. (Doc. 15-1 at

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21). Petitioner also agreed that “[b]y accepting this decision, I understand that I am accepting

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responsibility for my conduct, waiving my right to a revocation hearing, and waiving my right to

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appeal the decision.” (Id.). On April 21, 2021, the U.S. Parole Commission ordered Petitioner be

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released on parole on December 4, 2021, in accordance with Petitioner’s agreement. (Id. at 22).

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Thus, based on Plaintiff’s stipulation to Respondent’s proposed federal custody release date, and

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Respondent’s order that Petitioner be released on parole on December 4, 2021, Petitioner’s

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request that Court order Respondent to “cease and terminate” parole revocation proceedings has

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been rendered moot. See Anderson v. United States, 898 F.2d 751 (9th Cir. 1990) (once

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dispositional review was granted, the claim was moot). In addition to this jurisdictional issue, the

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Court notes that Petitioner has not demonstrated (1) a clear and certain claim for relief. and (2)

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the absence of any other adequate means to attain relief, as required by § 1651. As per his

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stipulation, Petitioner does not dispute Respondent’s proposed decision to revoke mandatory

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release, credit “none of the time spent on release,” and order Petitioner be released on parole on

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December 4, 2021. (Doc. 15 at 21-22). Thus, no grounds entitling Petitioner to the issuance of a

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writ in the nature of mandamus exist.
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Alternatively, Petitioner appears to claim Respondent incorrectly calculated his parole

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release date by failing to give him credit for time he spent in state and federal custody on the basis

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that Petitioner’s “entire Federal [Bureau of Prisons] inmate records, which includes all alleged

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1983 parole violation warrant and detainer computer documents” were “completely destroyed.”

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(Doc. No. 1 at 6-7). Challenges by a federal prisoner to the duration of his current custody may

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be cognizable in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Preiser v.

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Rodriguez, 411 U.S. 475, 487-88 (1973) (“even if restoration of [] good-time credits had merely

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shortened the length of their confinement, rather than required immediate discharge from that

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confinement, their suits would still have been within the core of habeas corpus in attacking the

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very duration of their physical confinement itself.”); Tucker v. Carlson, 925 F.2d 330, 331-32

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(9th Cir. 1991) (concluding that challenges to “the manner in which [a] sentence was executed,”

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or to “the fact or duration of ... confinement,” are properly brought in habeas petitions pursuant to

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§ 2241); Zavala v. Ives, 785 F.3d 367, 370 n.3 (9th Cir. 2015) (BOP’s calculation of sentencing

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credit may be challenged by a habeas petitioner under § 2241).

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However, as argued by Respondent, Petitioner concedes to the calculation of his release

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date on parole “effective on 12/04/21, after the service of 456 months” and Respondent has

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ordered his parole effective on 12/04/21. (Doc. No. 15 at 21-22). Thus, even were the Court to

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liberally construe his claim as a petition for a writ of habeas corpus, any challenge regarding the

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calculation of his parole is premature at best. Further any challenges to that the length of his

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current sentence are rendered moot by virtue of his stipulation to the revocation of his parole and

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the agreed upon release date of December 4, 2021.

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Accordingly, it is ORDERED:

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1. Respondent’s motion to dismiss (Doc. No. 15) is GRANTED.

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2. The Clerk of Court is directed to close this case.

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Dated:

November 18, 2021
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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