Ealom v. Thomas

Filing 2

MEMORANDUM AND ORDER ENTERED: The petition for habeas corpus is denied. Signed by District Judge John W. Lungstrum on 03/07/18. Mailed to pro se party Valeriece D. Ealom by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

VALERIECE D. EALOM,
Petitioner,
v.

CASE NO. 18-3049-JWL

LINDA THOMAS,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner is incarcerated following a preliminary hearing
to revoke her supervised release. She seeks the appointment of counsel
and requests an appearance before the federal judge presiding in her
case pending in the U.S. District Court for the Western District of
Missouri. In the alternative, she seeks a dismissal of the petition
for revocation of supervised release (Doc. #1, p. 8).
Rule 4 of the Rules Governing § 2254 Cases in the United States
District Court provides that upon a preliminary review by the district
court judge, “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief in
the district court, the judge must dismiss the petition and direct
the clerk to notify the petitioner.” Under Rule 1(b), this Court may
apply the rules to other habeas corpus petitions. The Court has
considered the petition and concludes the petitioner is not entitled
to relief in this matter.
Background
Petitioner was convicted of conspiracy to distribute narcotics
in the United States District Court for the Western District of

Missouri.1 On August 3, 2017, a U.S. Magistrate Judge conducted an
initial appearance and preliminary revocation hearing. At that time,
petitioner was appointed counsel and was remanded to custody. Since
then, she has filed a motion for hearing on supervised release
violations, a motion to appoint new counsel, and a motion to dismiss
the supervised release petition. On January 31, 2018, the Magistrate
Judge held a hearing on the motion to appoint new counsel and denied
the motion. Counsel for the government addressed the delay in final
revocation proceedings and explained that additional charges may be
filed against petitioner and that counsel are working toward a
resolution that will not require the presentation of those charges
to a grand jury.
Petitioner filed the current petition on March 2, 2018.
Discussion
The federal courts may grant habeas corpus relief to a prisoner
who is “in custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3).
As a federal prisoner, petitioner may challenge the execution
of her sentence by filing a petition under § 2241 in the district where
she is confined. Brace v. United States, 634 F.3d 1167, 1169 (10th Cir.
2011).
However, a delay in conducting a revocation hearing is not a
ground for release in habeas corpus; instead, a prisoner’s “remedy…is
an action to compel a hearing.” Hill v. Johnston, 750 F.Supp.2d 103,
105-06 (D.D.C. 2010). Petitioner appears to recognize this, as she
primarily asks the Court to order her appearance before the federal
U.S.A. v. Dorsey, et al., Case No. 03-cr-00329-FJG-2 (W.D. MO.). The Court has
found no published order concerning petitioner’s conviction and has constructed the
background information from docket sheet entries.
1

judge in the Western District of Missouri who is presiding in the
criminal action in which her revocation is pending. This Court has
no jurisdiction to direct any action by the judge in the Western
District of Missouri. Instead, petitioner must move in that court for
a final revocation hearing or may seek mandamus relief. See Sutherland
v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983)(stating the appropriate
remedy for a delay in conducting a parole revocation hearing “is a
writ of mandamus to compel [the Parole Commission’s] compliance … not
a writ of habeas corpus to compel release… or to extinguish the
remainder of the sentence” (emphasis in original)).
Relief in habeas corpus is appropriate only where a petitioner
can show both substantial delay and “actual prejudice” caused by the
delay. Blakeney v. Wainwright, 2011 WL 6749043 *2 (D.D.C. Dec. 23,
2011)(quoting Sutherland, 709 F.2d at 733 (no showing that 33-month
delay prejudiced petitioner)). The Court finds no evidence of either
substantial delay or actual prejudice in this matter. Petitioner has
been in custody since August 2017, and the record does not suggest
actual prejudice to her ability to defend herself at the revocation
hearing.
IT IS, THEREFORE, BY THE COURT ORDERED the petition for habeas
corpus is denied.
IT IS SO ORDERED.
DATED:

This 7th day of March, 2018, at Kansas City,

Kansas.
s/ John W. Lungstrum
JOHN W. LUNGSTRUM
United States District Judge