Mellinger v. US Probation Office

Filing 8

ORDER Dismissing Petition. "Petitioner Daniel Mellinger brings this action under 28 U.S.C. § 2241, which provides federal courts with a general grant of habeas authority. See Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en b anc). Mellinger asserts that his term of supervised release in one criminal case should have run concurrently with his term of parole in a separate case, beginning on July 18, 2014. He asks this court to order that his term of supervised release bega n on July 18, 2014. However, when Mellingers parole was revoked and he was imprisoned (possibly from July 18, 2014, pending the parole revocation hearing), his separate term of supervised release was tolled. The court dismisses the petition because it plainly appears that he is not entitled to the relief he seeks. Mellinger is given leave to file an amended § 2241 petition no later than May 18, 2018." Signed by JUDGE SUSAN OKI MOLLWAY on 4/16/18. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DANIEL MELLINGER,

)
)
Petitioner,
)
)
vs.
)
)
U.S. PROBATION OFFICE,
)
)
Respondent.
)
_____________________________ )

Civ. No. 18-00069 SOM/KSC
ORDER DISMISSING PETITION

ORDER DISMISSING PETITION
I.

INTRODUCTION.
Petitioner Daniel Mellinger brings this action under 28

U.S.C. § 2241, which provides federal courts with a general grant
of habeas authority.
Cir. 2008) (en banc).

See Frantz v. Hazey, 533 F.3d 724, 735 (9th
Mellinger asserts that his term of

supervised release in one criminal case should have run
concurrently with his term of parole in a separate case,
beginning on July 18, 2014.

He asks this court to order that his

term of supervised release began on July 18, 2014.

However, when

Mellinger’s parole was revoked and he was imprisoned (possibly
from July 18, 2014, pending the parole revocation hearing), his
separate term of supervised release was tolled.

The court

dismisses the petition because it plainly appears that he is not
entitled to the relief he seeks.
II.

STANDARD.
Rule 1(b) of the Rules Governing Section 2254 Cases in

the United States District Courts states, “The district court may

apply any or all of these rules to a habeas corpus petition not
covered by Rule 1(a),” which pertains to cases involving a
petition under 28 U.S.C. § 2254.

See Lane v. Feather, 584 F.

App'x 843 (9th Cir. 2014) (citing Rule 1(b) of the Rules
Governing Section 2254 Cases and stating that the district court
did not err in applying Rule 4 of the Rules Governing Section
2254 Cases to a § 2241 Petition); Moncrieffe v. Yost, 367 F.
App'x 286, 288 (3d Cir. 2010) (noting that Rule 4 of the Rules
Governing Section 2254 Cases applies to a § 2241 petition “by
virtue of Rule 1(b)”); Sullivan v. Hendershot, 2013 WL 5913797,
at *4 n.5 (D. Haw. Oct. 30, 2013) (“The Rules Governing Section
2254 Cases also apply to § 2241 petitions.”); Tanner v.
MacDonald, 2011 WL 1598838, at *1 (D. Haw. Apr. 27, 2011)
(dismissing a § 2241 petition pursuant to Rule 4 of the Rules
Governing Section 2254 Cases).

Pursuant to Rule 4 of the Rules

Governing Section 2254 Cases, this court must dismiss a § 2241
petition and direct the Clerk of Court to notify the petitioner
when “it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.”
III.

BACKGROUND.
Mellinger has an extensive criminal history.

Pursuant

to Rule 201 of the Federal Rules of Evidence, the court takes
judicial notice of this history, as explained in the orders and
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files of Mellinger’s other cases.

For example, Mellinger was

convicted of 7 counts of burglary in Connecticut and 8 counts of
robbery and escape in Hawaii.

See Federal Institutional

Revocation (Dec. 3, 2014) (filed in Civil No. 2:15-00129 DGC,
Doc. No. 17-2, Page 74 of 128 (D. Ariz. May 1, 2015)).

Those

convictions are not relevant to the present petition.
Relevant here are Mellinger’s convictions on multiple
1985 bank robbery charges in the United States District Court for
the Central District of California.

He was sentenced to 18 years

of imprisonment in each case, with the terms running
concurrently.

See Mellinger v. Graber, 2015 WL 6406241, *1 (D.

Ariz. Sept. 2, 2015); Judgment and Probation/Commitment Orders in
Cr. Nos 85-268 WJR, 85-818 WJR, 85-833 WJR, 85-834 WJR, 85-871
WJR, and 85-873 WJR (Sept. 20, 1985) (filed in Civil No. 2:1500129 DGC, Doc. No. 17-2, Pages 17-22 of 128 (D. Ariz. May 1,
2015)).

Mellinger calls this the “old law sentence.”

See

Petition, ECF No. 1, PageID # 6.
Mellinger began serving his sentences on the 1985 bank
robberies, and, in January 1989, the United States Parole
Commission determined that he should serve to the expiration of
his sentences, rather than be paroled.

See Graber, 2015 WL

6406241 at *1; Notice of Action (Jan. 24, 2089) (filed in Civil
No. 2:15-00129 DGC, Doc. No. 17-2, Page 24 of 128 (D. Ariz. May
1, 2015)).

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In 1997, however, Mellinger
was given a mandatory release pursuant to the
Parole Act, which required the Commission to
release a prisoner “at the expiration of his
term of sentence less the time deducted for
good conduct.” 28 U.S.C. § 4163 (1982 ed.).
At the time of his release, [Mellinger] had
2,593 days of his original sentence left to
serve. . . . Under the Parole Act,
[Mellinger] was to be “deemed as if released
on parole” until the expiration of his
statutory sentence less 180 days. 28 U.S.C.
§ 4164 (1982 ed.). This was set to occur in
November 2003.
In March 1998, the Commission revoked
Petitioner's mandatory release for a
technical parole violation. . . . Despite
revoking his mandatory release, the
Commission gave Petitioner credit for his
time on parole, bringing his remaining
sentence to 1,932 days. . . . In February
1999, Petitioner was reparoled.
Graber, 2015 WL 6385300 at *1; see also Certificate of Parole
(indicating that Mellinger was paroled on February 9, 1999, with
1,932 days of his sentence remaining) (filed in Civil No. 2:1500129 DGC, Doc. No. 17-2, Page 35 of 128 (D. Ariz. May 1, 2015)).
Four months later, Mellinger committed 6 more bank
robberies in California.

Graber, 2015 WL 6406241 at *1.

Charges

arising from these bank robberies were filed in the United States
District Court for the Northern District of California, Cr. No.
5:99-20101 RMW.

According to the docket in that case, in October

1999, Mellinger entered a guilty plea pursuant to a plea
agreement; he was sentenced in January 2000 to 188 months of
imprisonment followed by 5 years of supervised release.
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See also

Judgment in a Criminal Case (Jan. 31, 2000) (filed in Civil No.
2:15-00129 DGC, Doc. No. 17-2, Pages 46-51 of 128 (D. Ariz. May
1, 2015)).

Mellinger calls this the “new law sentence.”

See

Petition, ECF No. 1, PageID # 6.
On July 13, 1999 (after he had been paroled in the 1985
cases but before he entered a guilty plea with respect to the
1999 case), the United States Parole Commission issued a warrant
for Mellinger’s arrest for having left the district in which he
was serving his parole sentence without permission and for
failing to report a change in his residence.

See Warrant

Application (July 13, 1999) and Warrant (July 13, 1999) (filed in
Civil No. 2:15-00129 DGC, Doc. No. 17-2, Pages 39 and 41 of 128
(D. Ariz. May 1, 2015)).

The Parole Commission instructed the

U.S. Marshals Service to “assume custody as soon as possible or
when located,” but “[i]f the parolee is already in the custody of
federal or state authorities, do not execute this warrant.”
Instead, “[p]lace a detainer and notify the Commission for
further instructions.”

See Memorandum (July 13, 1999) (filed in

Civil No. 2:15-00129 DGC, Doc. No. 17-2, Page 44 of 128 (D. Ariz.
May 1, 2015)).

Because Mellinger was already in custody with

respect to the 1999 bank robberies, the warrant was placed as a
detainer.

See Graber, 2015 WL 6406241 at *1.
In 2001, Mellinger was indicted in the United States

District Court for the Eastern District of Texas for having

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possessed illegal contraband while in prison.
1:01-00174 TH-WCR.

Apparently, he had brandished a 9-inch shank

during a struggle with a prison official.
6406241 at *2.

See Crim. No.

See Graber, 2015 WL

According to the docket sheet in that case,

Mellinger entered a guilty plea and was initially sentenced to 30
months of imprisonment and 3 years of supervised release.

The

sentence was later amended to lower his imprisonment to 15 months
running consecutively to his sentence for the 1999 robberies.
The amended sentence may not have changed the 3 years of
supervised release imposed in the original judgment, but this
court cannot discern that with certainty from the docket sheet.
In May 2007, the Parole Commission supplemented the
warrant that had led to the detainer relating to the 1985
charges, noting that Mellinger had violated his parole when he
committed one of the 1999 bank robberies.

See Charge No. 3

(filed in Civil No. 2:15-00129 DGC, Doc. No. 17-2, Page 59 of 128
(D. Ariz. May 1, 2015)).
On July 18, 2014, Mellinger completed his incarceration
with respect to the 1999 conviction; the Parole Commission
executed its warrant on that date.
*2.

Graber, 2015 WL 6406241 at

Although not entirely clear from the record or dockets in

Mellinger’s other court cases, it appears that Mellinger remained
incarcerated after he completed his prison term with respect to
the 1999 conviction.

See ECF No. 1 (arguing that Mellinger

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should have received credit for supervised release from July 18,
2014, even though he was incarcerated).
On August 5, 2014, the Parole Commission supplemented
the parole violator warrant, asserting that Mellinger had
possessed a prohibited object (the shank in issue in the 2001
Texas case).

See Supplement (Aug. 5, 2014), (filed in Civil No.

2:15-00129 DGC, Doc. No. 17-2, Page 65 of 128 (D. Ariz. May 1,
2015)):
On November 13, 2014, a revocation hearing
was conducted at the Federal Transfer Center
in Oklahoma City, Oklahoma, with respect to
the parole violator warrant and supplements
thereto. Petitioner admitted each of the
charges and was allowed to provide statements
in his defense. The hearing examiner found
that Petitioner had violated the conditions
of his parole with respect to each of the
charges. Revocation of Petitioner's parole
was recommended, with his sentence to be
continued to expiration, with none of the
time spent on parole to be credited to the
revocation sentence.
Mellinger v. Kastner, No. CIV-14-1130-R, 2015 WL 1061829, at *2
(W.D. Okla. Feb. 12, 2015).
On December 3, 2014, the Parole Commission followed the
hearings officer’s recommendation and revoked Mellinger’s parole,
stating, “None of the time spent on parole shall be credited.
Continue to expiration.”

See Federal Institution Revocation

(Dec. 3, 2014) (filed in Civil No. 2:15-00129 DGC, Doc. No. 17-2,
Page 73 of 128 (D. Ariz. May 1, 2015)).

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The Federal Bureau of Prisons inmate locator system
indicates that Mellinger was released on September 1, 2017.

See

https://www.bop.gov/inmateloc/ (input inmate number 81481-012).
This is the same date listed as Mellinger’s projected release
date on a Sentence Monitoring Computation Data sheet submitted by
Mellinger to the Ninth Circuit in connection with Mellinger’s
appeal arguing that he should have received more credit for his
parole.

See Case 15-17222, ID 9903500, DktEntry 8, Page 4 of 5

(Mar. 14, 2016).

It is not clear in which case Mellinger was

serving time from December 3, 2014, to September 1, 2017 (e.g.,
with respect to a parole revocation tied to the 1985 convictions
or possibly to the 2001 prohibited item conviction, or both).
The important fact is that Mellinger was incarcerated during this
time, as Mellinger acknowledges in his petition.
After Mellinger’s release from prison, it appears that
supervision responsibilities were transferred to the United
States Probation Office for the District of Hawaii.
It also appears that Mellinger’s parole with respect to
the 1985 convictions ends on or about May 5, 2019.
2015 WL 6385300 at *2.

See Graber,

In asserting that his supervised release

should have begun running on July 18, 2014, Mellinger appears to
be contending that one or both of his supervised release
sentences in the 1999 and 2001 cases will run beyond May 5, 2019.

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IV.

ANALYSIS.
Mellinger’s petition argues that his supervised release

term should have begun running on July 18, 2014, when he was
released from prison on the 1999 charge and detained under the
parole warrant with respect to the 1985 charges.

He says that,

on that date, he was on parole and that his supervised release
term should have been running at the same time as his parole
term.

See Petition, ECF No. 1, PageID # 6.

He asks this court

to order that his supervised release started on July 18, 2014.
Id., PageID # 7.
Mellinger misunderstands the applicable law.

Under 18

U.S.C. § 3624(e),
The term of supervised release commences on
the day the person is released from
imprisonment and runs concurrently with any
Federal, State, or local term of probation or
supervised release or parole for another
offense to which the person is subject or
becomes subject during the term of supervised
release. A term of supervised release does
not run during any period in which the person
is imprisoned in connection with a conviction
for a Federal, State, or local crime unless
the imprisonment is for a period of less than
30 consecutive days.
Had Mellinger been released from prison on July 18,
2014, and simply started parole on that date, his supervised
release term would have run concurrently with the parole term
under § 3624(e).

But that is not what happened.

Although the

record does not expressly indicate that Mellinger was imprisoned

9

based on the detainer from July 18, 2014, to December 2014, when
his parole was revoked, he does appear to have been incarcerated.
The Parole Commission determined that none of the time he spent
on parole would be credited and that he was to be imprisoned to
the end of his sentence with respect to the 1985 convictions.
Under § 3624(e), while Mellinger was imprisoned with respect to
the federal 1985 convictions, his supervised release term did not
run, as there is no contention that he was imprisoned for less
than 30 consecutive days.

Mellinger’s imprisonment in 2014 means

that he is not entitled to have his supervised release run
continuously from July 18, 2014.

The court rejects Mellinger’s

contention that his incarceration is irrelevant.

To the

contrary, § 3624(e) specifically tolls the running of a
supervised release term “during any period in which the person is
imprisoned in connection with a conviction for a Federal, State,
or local crime.”
Other courts examining analogous situations have held
that supervised release is tolled under § 3624(e) when a
defendant’s probation is revoked.

For example, in United States

v. Bussey, 745 F.3d 631, 633 (2d Cir. 2014), the Second Circuit
held that a defendant’s term of supervised release was tolled
pursuant to § 3624(e) when the defendant had his state-court
parole revoked and was imprisoned on the underlying state-court
charge.

Bussey began a 3-year term of federal supervised release

10

in February 2010.

At that time, he was also serving a State of

New York term of parole.

Bussey violated both supervised release

and parole by failing to inform authorities of his whereabouts,
prompting warrants to be issued from both the federal and state
courts.

Eventually, Bussey was taken into custody by state

officials, and his parole was revoked, leading to his
incarceration.

When Bussey completed his 22-month term of

imprisonment for the state parole violation, he was transferred
to federal custody, where the federal court imposed an additional
two years of supervision.

Bussey argued that the additional two

years of supervision was improper because he had already
completed his original 3 years of supervised release while
imprisoned after his state-court parole was revoked.

The Second

Circuit rejected that argument, crediting him with 14 months of
supervised release served before his parole revocation and his
imprisonment on the state-court parole revocation, but, under
§ 3624(e), tolling the supervised release during Bussey’s state
revocation imprisonment.

Id. at 632-33.

United States v. Jackson, 426 F.3d 301, 305 (5th Cir.
2005), reaches a similar result.

In Jackson, the Fifth Circuit

held that, under § 3624(e), a period of supervised release was
tolled under § 3624(e) while a defendant was imprisoned on a
state parole revocation, even though the parole revocation itself
had been unconstitutional.

In so holding, the Fifth Circuit

11

noted that one policy underlying supervised release is to assist
a defendant in returning to the community.

While a defendant is

imprisoned, a probation officer cannot supervise the defendant,
making it “impossible for his probation officer to assist him in
returning to the community.”

Id.

This court dismisses Mellinger’s petition because “it
plainly appears from the petition and any attached exhibits that
the petitioner is not entitled to relief.”1

Mellinger asserts

that his supervised release term should have been running from
the time he was on parole, even if his parole was revoked and he
was reincarcerated for the underlying 1985 convictions.

That

assertion runs afoul of § 3624(e).
V.

CONCLUSION.
For the foregoing reasons, the court dismisses

Mellinger’s § 2241 petition.

Mellinger is given leave to file an

amended § 2241 petition no later than May 18, 2018.

Any such

amended petition may not reassert that his term of supervised
release should have been running while he was imprisoned on a
parole revocation.

If Mellinger chooses to file an amended

§ 2241 petition, the amended petition must contain sufficient

1

This court need not determine whether a certificate of
appealability is necessary for Mellinger to appeal this order.
See Close v. Thomas, 653 F.3d 970, 974 n.2 (9th Cir. 2011)
(“Although Petitioners do not have Certificates of Appealability,
a COA is not required to appeal the denial of a § 2241 petition
filed by a person in federal custody.”).
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facts to allow this court to determine what he is claiming.

For

example, if Mellinger was not actually incarcerated between July
and December 2014, he should state that fact clearly.

Any

amended petition must not incorporate by reference the original
petition and instead must stand independent of the original
petition, although Mellinger need not reattach any exhibit
already in the record and may refer in an amended petition to the
original exhibit and may add additional exhibits.
If Mellinger does not timely file an amended § 2241
petition, the Clerk of Court shall enter judgment in favor of
Defendant and close this case.
The Clerk of Court is ordered to send a copy of this
order to Mellinger at his address of record.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 16, 2018.,
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Mellinger v. US Probation Officer, Civ. No. 18-00069 SOM/KSC; ORDER DISMISSING
PETITION

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