Gutierrez v. United States

Filing 10

ORDER OF DISMISSAL WITH LEAVE TO AMEND (Illston, Susan) (Filed on 12/14/2011) (Additional attachment(s) added on 12/14/2011: # 1 Envelope) (tf, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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JOSEPH P. GUTIERREZ,

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No. C 11-4527 SI (pr)

Petitioner,

ORDER OF DISMISSAL WITH
LEAVE TO AMEND

v.
UNITED STATES OF AMERICA,
Respondent.
/
INTRODUCTION

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Joseph P. Gutierrez, a detainee at the federal detention facility in Dublin, California, filed

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this civil action concerning his detention in connection with the revocation of his federal parole.

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He commenced this action by filing a "motion for appt of counsel fed. detainer" and later filed

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a 28 U.S.C. § 2255 motion "attacking a sentence imposed by that court." (Docket # 1, # 6.)

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BACKGROUND

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Gutierrez's several filings provide the following information: Gutierrez was convicted

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in the U.S. District Court for the Middle District of Tennessee in 1979 of possession of

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explosives and arson for hire. He was sentenced to 10 years in federal prison at one-half or one-

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third time. Docket # 6, ¶. 2, 4. Gutierrez was released from federal prison in 1982, at which

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time his parole term commenced. See id. at 4. Gutierrez then committed a kidnapping in

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California in 1983 that was prosecuted by state authorities and led to a lengthy prison term in

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a California prison.1 During his incarceration in California, the U.S. Parole Commission issued

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a parole violator warrant and detainer for Gutierrez. In about 1996, his efforts to have the parole

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violation term served concurrently with the state sentence were rejected. In August 2011,

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Gutierrez was paroled from the California prison. The U.S. Marshal promptly took him into

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custody on a parole violation pursuant to an order from the U.S. Parole Commission. Gutierrez's

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filings suggest that the federal parole violation was the commission of the kidnapping that led

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to his stay in California prisons. See Docket # 6, p. 3.
In his § 2255 motion, Gutierrez argues that this court should order him released on parole

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in California because his lengthy stay in California prison "satisfies any punitive penalties

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United States District Court
For the Northern District of California

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imaginable by U.S.P.C." Id. at 4. Gutierrez also moves for appointment of counsel "to represent

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him before the U.S. Parole Commission in the instant court, on parole violation charges."

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Docket # 1, p. 1. Gutierrez also asks that he not be transferred away from Dublin to another part

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of the country because his family lives in this area. See Docket # 1, p. 3. Finally, Gutierrez asks

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that this court ""adopt' his 1979 conviction . . . from the U.S. District Court, Middle District of

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Tennessee," then "vacate any potential penalties on the federal detainer" and order his release

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on state parole. Docket # 8, p. 2.

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DISCUSSION

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"If any parolee is alleged to have violated his parole, the Commission may . . . issue a

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warrant and retake the parolee." 18 U.S.C. § 4213(a)(2). If a parolee is convicted of a crime

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while on parole, he must receive a parole revocation hearing within 90 days of the "retaking."

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See id. § 4214(c).

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Gutierrez has provided too little information for the court to determine whether he has

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stated a claim upon which relief may be granted. It is not clear whether he has had his parole

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revocation hearing yet. His request that counsel be appointed for such proceedings indicates that

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the hearing has not yet occurred, but his request for the court to override the U.S. Parole

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Gutierrez was sentenced in 1985 to life in prison plus nine years upon his conviction of two
counts of kidnapping for robbery based on a crime committed on November 16, 1983. See Order
Denying Petition For Writ of Habeas Corpus (Docket # 16) in Gutierrez v. Kane, No. C 05-1537 SI.
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Commission suggests that it might have occurred. And some of his statements seem to indicate

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that he wants the court to displace the Parole Commission and make a determination on its own

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that it is unfair to revoke parole.
If the parole revocation hearing has not yet occurred and Gutierrez wants to seek an order

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compelling the hearing to be held, he should file a petition for writ of mandamus. See Johnson

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v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003); Thompson v. Crabtree, 82 F.3d 312, 314 n.1 (9th

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Cir. 1996). A habeas petition is not the proper process to compel the Parole Commission to hold

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a hearing. See generally Benny v. United States Parole Commission, 295 F.3d 977, 989-99 (9th

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Cir. 2002). The federal mandamus statute provides that "[t]he district courts shall have original

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United States District Court
For the Northern District of California

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jurisdiction of any action in the nature of mandamus to compel an officer or employee of the

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United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361;

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see also Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986) (mandamus relief only available

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to compel an officer of the United States to perform a duty if: (1) the plaintiff's claim is clear and

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certain; (2) the duty of the officer is ministerial and so plainly prescribed as to be free from

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doubt; and (3) no other adequate remedy is available).

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If the parole revocation hearing has occurred and Gutierrez wants to challenge the parole

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revocation decision by the Parole Commission, he may do so by submitting a habeas petition

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under 28 U.S.C. § 2241. He has not alleged an error by the U.S. Parole Commission and appears

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to be petitioning for release based only on his personal preference to be out of prison and in the

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State of California. Gutierrez is cautioned that the scope of this court's review of the Parole

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Commission's decision to revoke parole is very narrow: the court may consider only whether the

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Commission exceeded its statutory authority or violated the constitution. See Wallace v.

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Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986). The minimum due process requirements

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in a parole revocation hearing include: “(a) written notice of the claimed violations of parole;

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(b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and

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to present witnesses and documentary evidence; (d) the right to confront and cross-examine

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adverse witnesses (unless the hearing officer specifically finds good cause for not allowing

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confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board,

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members of which need not be judicial officers or lawyers; and (f) a written statement by the

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factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey v. Brewer,

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408 U.S. 471, 489 (1972). Additionally, judicial review of a federal parole decision generally

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is available only after administrative remedies established by the U.S. Parole Commission have

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been exhausted. See Weinstein v. U.S. Parole Comm'n, 902 F.2d 1451, 1453 (9th Cir. 1990);

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28 C.F.R. §§ 2.23, 2.26. If Gutierrez files a habeas petition, he needs to identify the specific

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errors of the Parole Commission, and should file such a petition only after exhausting

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administrative remedies.
Gutierrez used the form for a motion pursuant to 28 U.S.C. § 2255. That section

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United States District Court
For the Northern District of California

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authorizes the federal sentencing court to grant relief if it concludes that "the sentence was

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imposed in violation of the Constitution or laws of the United States, or that the court was

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without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum

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authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Although

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he used a § 2255 motion form, the substance of Gutierrez's arguments do not appear to include

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an attack on the sentence imposed in the U.S. District Court of the Middle District of Tennessee

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in about 1979. If Gutierrez does want to seek § 2255 relief, he must file his motion in the

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Middle District of Tennessee. This court has no authority to "adopt" his case from the Middle

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District of Tennessee, as he requests.

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Gonzales' request for appointment of counsel is DENIED as premature. (Docket # 1.) It

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is premature for the court to consider appointing counsel because the court cannot determine

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what kind of petition Gonzales intends to pursue and whether he would be entitled to counsel

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for such a petition.

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Gutierrez also states that he has several serious medical conditions of concern to him.

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If he wants to complain about the medical care in custody, he may file a civil rights complaint

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(also sometimes known as a Bivens action when the defendants are federal actors) after

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exhausting administrative remedies for any claims therein.

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Gutierrez's in forma pauperis application is DISMISSED as unnecessary because he paid
the filing fee. (Docket # 5.)

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Gutierrez's "motion requesting permission to supplement motion filed Sep. 11, 2011 and

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Habeas Corpus Pet." is DENIED. (Docket # 8.) The court does not have the authority to take

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the steps Gutierrez requests. Specifically, the court does not have the authority to adopt a

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criminal case from the Middle District of Tennessee and does not have the authority to simply

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vacate any potential penalties on the federal detainer so as to release him from custody without

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any showing of a violation of the constitution or laws of the United States

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CONCLUSION
For the foregoing reasons, this action is dismissed with leave to file either a petition for

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United States District Court
For the Northern District of California

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writ of habeas corpus under 28 U.S.C. § 2241 or a petition for writ of mandamus. The petition

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must be filed no later than January 20, 2012. Failure to file the petition by the deadline will

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result in the dismissal of the action.

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IT IS SO ORDERED.

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Dated: December 14, 2011

_____________________
SUSAN ILLSTON
United States District Judge

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