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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 United States District Court For the Northern District of California 10 JOSEPH P. GUTIERREZ, 11 12 13 14 15 16 No. C 11-4527 SI (pr) Petitioner, ORDER OF DISMISSAL WITH LEAVE TO AMEND v. UNITED STATES OF AMERICA, Respondent. / INTRODUCTION 17 Joseph P. Gutierrez, a detainee at the federal detention facility in Dublin, California, filed 18 this civil action concerning his detention in connection with the revocation of his federal parole. 19 He commenced this action by filing a "motion for appt of counsel fed. detainer" and later filed 20 a 28 U.S.C. § 2255 motion "attacking a sentence imposed by that court." (Docket # 1, # 6.) 21 22 BACKGROUND 23 Gutierrez's several filings provide the following information: Gutierrez was convicted 24 in the U.S. District Court for the Middle District of Tennessee in 1979 of possession of 25 explosives and arson for hire. He was sentenced to 10 years in federal prison at one-half or one- 26 third time. Docket # 6, ¶. 2, 4. Gutierrez was released from federal prison in 1982, at which 27 time his parole term commenced. See id. at 4. Gutierrez then committed a kidnapping in 28 California in 1983 that was prosecuted by state authorities and led to a lengthy prison term in 1 a California prison.1 During his incarceration in California, the U.S. Parole Commission issued 2 a parole violator warrant and detainer for Gutierrez. In about 1996, his efforts to have the parole 3 violation term served concurrently with the state sentence were rejected. In August 2011, 4 Gutierrez was paroled from the California prison. The U.S. Marshal promptly took him into 5 custody on a parole violation pursuant to an order from the U.S. Parole Commission. Gutierrez's 6 filings suggest that the federal parole violation was the commission of the kidnapping that led 7 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 9 in California because his lengthy stay in California prison "satisfies any punitive penalties 10 United States District Court For the Northern District of California 8 imaginable by U.S.P.C." Id. at 4. Gutierrez also moves for appointment of counsel "to represent 11 him before the U.S. Parole Commission in the instant court, on parole violation charges." 12 Docket # 1, p. 1. Gutierrez also asks that he not be transferred away from Dublin to another part 13 of the country because his family lives in this area. See Docket # 1, p. 3. Finally, Gutierrez asks 14 that this court ""adopt' his 1979 conviction . . . from the U.S. District Court, Middle District of 15 Tennessee," then "vacate any potential penalties on the federal detainer" and order his release 16 on state parole. Docket # 8, p. 2. 17 18 DISCUSSION 19 "If any parolee is alleged to have violated his parole, the Commission may . . . issue a 20 warrant and retake the parolee." 18 U.S.C. § 4213(a)(2). If a parolee is convicted of a crime 21 while on parole, he must receive a parole revocation hearing within 90 days of the "retaking." 22 See id. § 4214(c). 23 Gutierrez has provided too little information for the court to determine whether he has 24 stated a claim upon which relief may be granted. It is not clear whether he has had his parole 25 revocation hearing yet. His request that counsel be appointed for such proceedings indicates that 26 the hearing has not yet occurred, but his request for the court to override the U.S. Parole 27 28 1 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. 2 1 Commission suggests that it might have occurred. And some of his statements seem to indicate 2 that he wants the court to displace the Parole Commission and make a determination on its own 3 that it is unfair to revoke parole. If the parole revocation hearing has not yet occurred and Gutierrez wants to seek an order 5 compelling the hearing to be held, he should file a petition for writ of mandamus. See Johnson 6 v. Reilly, 349 F.3d 1149, 1153 (9th Cir. 2003); Thompson v. Crabtree, 82 F.3d 312, 314 n.1 (9th 7 Cir. 1996). A habeas petition is not the proper process to compel the Parole Commission to hold 8 a hearing. See generally Benny v. United States Parole Commission, 295 F.3d 977, 989-99 (9th 9 Cir. 2002). The federal mandamus statute provides that "[t]he district courts shall have original 10 United States District Court For the Northern District of California 4 jurisdiction of any action in the nature of mandamus to compel an officer or employee of the 11 United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. § 1361; 12 see also Fallini v. Hodel, 783 F.2d 1343, 1345 (9th Cir. 1986) (mandamus relief only available 13 to compel an officer of the United States to perform a duty if: (1) the plaintiff's claim is clear and 14 certain; (2) the duty of the officer is ministerial and so plainly prescribed as to be free from 15 doubt; and (3) no other adequate remedy is available). 16 If the parole revocation hearing has occurred and Gutierrez wants to challenge the parole 17 revocation decision by the Parole Commission, he may do so by submitting a habeas petition 18 under 28 U.S.C. § 2241. He has not alleged an error by the U.S. Parole Commission and appears 19 to be petitioning for release based only on his personal preference to be out of prison and in the 20 State of California. Gutierrez is cautioned that the scope of this court's review of the Parole 21 Commission's decision to revoke parole is very narrow: the court may consider only whether the 22 Commission exceeded its statutory authority or violated the constitution. See Wallace v. 23 Christensen, 802 F.2d 1539, 1551-52 (9th Cir. 1986). The minimum due process requirements 24 in a parole revocation hearing include: “(a) written notice of the claimed violations of parole; 25 (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and 26 to present witnesses and documentary evidence; (d) the right to confront and cross-examine 27 adverse witnesses (unless the hearing officer specifically finds good cause for not allowing 28 confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, 3 1 members of which need not be judicial officers or lawyers; and (f) a written statement by the 2 factfinders as to the evidence relied on and reasons for revoking parole.” Morrissey v. Brewer, 3 408 U.S. 471, 489 (1972). Additionally, judicial review of a federal parole decision generally 4 is available only after administrative remedies established by the U.S. Parole Commission have 5 been exhausted. See Weinstein v. U.S. Parole Comm'n, 902 F.2d 1451, 1453 (9th Cir. 1990); 6 28 C.F.R. §§ 2.23, 2.26. If Gutierrez files a habeas petition, he needs to identify the specific 7 errors of the Parole Commission, and should file such a petition only after exhausting 8 administrative remedies. Gutierrez used the form for a motion pursuant to 28 U.S.C. § 2255. That section 10 United States District Court For the Northern District of California 9 authorizes the federal sentencing court to grant relief if it concludes that "the sentence was 11 imposed in violation of the Constitution or laws of the United States, or that the court was 12 without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum 13 authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Although 14 he used a § 2255 motion form, the substance of Gutierrez's arguments do not appear to include 15 an attack on the sentence imposed in the U.S. District Court of the Middle District of Tennessee 16 in about 1979. If Gutierrez does want to seek § 2255 relief, he must file his motion in the 17 Middle District of Tennessee. This court has no authority to "adopt" his case from the Middle 18 District of Tennessee, as he requests. 19 Gonzales' request for appointment of counsel is DENIED as premature. (Docket # 1.) It 20 is premature for the court to consider appointing counsel because the court cannot determine 21 what kind of petition Gonzales intends to pursue and whether he would be entitled to counsel 22 for such a petition. 23 Gutierrez also states that he has several serious medical conditions of concern to him. 24 If he wants to complain about the medical care in custody, he may file a civil rights complaint 25 (also sometimes known as a Bivens action when the defendants are federal actors) after 26 exhausting administrative remedies for any claims therein. 27 28 Gutierrez's in forma pauperis application is DISMISSED as unnecessary because he paid the filing fee. (Docket # 5.) 4 1 Gutierrez's "motion requesting permission to supplement motion filed Sep. 11, 2011 and 2 Habeas Corpus Pet." is DENIED. (Docket # 8.) The court does not have the authority to take 3 the steps Gutierrez requests. Specifically, the court does not have the authority to adopt a 4 criminal case from the Middle District of Tennessee and does not have the authority to simply 5 vacate any potential penalties on the federal detainer so as to release him from custody without 6 any showing of a violation of the constitution or laws of the United States 7 8 CONCLUSION For the foregoing reasons, this action is dismissed with leave to file either a petition for 10 United States District Court For the Northern District of California 9 writ of habeas corpus under 28 U.S.C. § 2241 or a petition for writ of mandamus. The petition 11 must be filed no later than January 20, 2012. Failure to file the petition by the deadline will 12 result in the dismissal of the action. 13 IT IS SO ORDERED. 14 15 Dated: December 14, 2011 _____________________ SUSAN ILLSTON United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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