Bradin v. Thomas et al

Filing 69

ORDER ENTERED: Petitioner's Emergency Application for Modification of Detention Order (Doc. 62 ) is denied. Petitioner shall be detained in the custody from which release is sought pursuant to Fed. R. App. P. 23(b)(1). Signed by District Judge John W. Lungstrum on 10/7/2019. Mailed to pro se party John Bradin by regular mail. (jal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
JOHN BRADIN,
Petitioner,
v.

CASE NO. 19-3041-JWL

LINDA THOMAS, Warden,
and UNITED STATES BOARD
of PROBATION & PAROLE,1
Respondents.
ORDER
This matter is a petition for writ of habeas corpus filed under 28 U.S.C. § 2241. At the
time of filing, Petitioner was in federal custody at Core Civic Leavenworth Detention Center in
Leavenworth, Kansas. On July 12, 2019, the Court entered a Memorandum and Order and
Judgment (Docs. 57, 58), dismissing some of Petitioner’s claims for lack of jurisdiction, as
successive and as moot, and denying the remaining claims. On September 3, 2019, Petitioner
filed a Notice of Appeal. (Doc. 59.) On September 3, 2019, Petitioner filed an Emergency
Application for Modification of Detention Order (Doc. 62). The Tenth Circuit abated the appeal
pending a ruling on the motion at Doc. 62, and the matter is fully briefed by the parties.
Petitioner seeks release from custody or to be moved to a halfway house while the Tenth
Circuit Court of Appeals considers his appeal of this Court’s denial of his Petition. Petitioner’s
motion cites Fed. R. App. P. 23(d). Rule 23(d) relates to modifications of an initial order
governing the prisoner’s custody or release, including any recognizance or surety, and is
addressed to the court of appeals or the Supreme Court, or to a judge or justice of either court.
Fed. R. App. P. 23(d). Because the Court has denied the Petition, the Court will consider
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Petitioner incorrectly identified the United States Parole Commission as the “U.S. Board of Probation and
Parole.”
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Petitioner’s request under Rule 23(b). Rule 23(b) provides that: “[w]hile a decision not to
release a prisoner is under review, the court or judge rendering the decision, or the court of
appeals, or the Supreme Court, or a judge or justice of either court, may order that the prisoner
be: (1) detained in the custody from which release is sought; (2) detained in other appropriate
custody; or (3) released on personal recognizance, with or without surety.” Fed. R. App.
P. 23(b).
The Respondent has filed a response in opposition, arguing that the Court should order
Petitioner to remain “detained in the custody from which release is sought,” pursuant to Fed. R.
App. P. 23(b)(1). (Doc. 67.) Respondent advises the Court that the United States Parole
Commission (“USPC”) held Petitioner’s parole revocation hearing on July 16, 2019, and ordered
Petitioner to serve to the expiration of his sentence, the remainder of the 1,602 days on his
sentence from Case No. 75CR50-W-2. (Doc. 67–1, at 11–12, Exhibit 3, Notice of Action dated
8/21/2019, p. 1-2). The USPC ordered Petitioner to serve to the expiration of his sentence
despite the Guidelines suggesting a lower sanction after finding that “there is a reasonable
possibility [Petitioner] will violate the laws in the community because [Petitioner is] a more
serious risk because of [his] violent background and three prior revocations of parole.” Id. After
the USPC’s revocation decision, Petitioner is now scheduled to be released from prison on
October 11, 2021, after he serves the entirety of the 1,602 days remaining on his sentence less
accrued statutory good time credits. (Doc. 67–1, at 3, Exhibit 2, Sentence Monitoring and
Computation Data, p. 1).
Respondent argues that despite having his parole revoked three times, Petitioner
committed additional parole violations culminating in his 1993 Missouri convictions for felony
theft and forcible sodomy, which resulted in an aggregated 25-year Missouri state sentence. Id.

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Respondent argues that in light of Petitioner’s continued failures to comply with the terms of his
parole and his failure to demonstrate any exceptional circumstances, this Court should find that
Petitioner has not met his burden to justify relief pursuant to Fed. R. App. P. 23(b)(2)-(3).
“In order to obtain release pending a determination on a [habeas petition], an inmate must
make ‘a showing of exceptional circumstances’ or ‘a demonstration of a clear case on the merits
of the habeas petition.’” United States v. Zander, 669 F. App’x 955, 956 (10th Cir. 2016)
(unpublished) (quoting Pfaff v. Wells, 648 F.2d 689, 693 (10th Cir. 1981); see also United States
v. Mett, 41 F.3d 1281, 1282 (9th Cir. 1994)) (“In the habeas context, this court has reserved bail
for extraordinary cases involving special circumstances or a high probability of success.”)); see
also Vreeland v. Zupan, 644 F. App’x 812, 813 (10th Cir. 2016) (unpublished) (finding that “a
motion for release at this late stage required Mr. Vreeland to show not only ‘a clear case on the
merits of the habeas petition,’ but also ‘exceptional circumstances’”) (citations omitted).
The Court finds that Petitioner has not shown a clear case on the merits of his Petition, or
exceptional circumstances warranting his release from custody or transfer to a halfway house
pending his appeal. The majority of Petitioner’s motion and his reply (Doc. 68) reargue the
merits of his habeas petition. Petitioner also argues, apparently for the first time, that because his
statutory release date was September 12, 1993, and he was not convicted of state crimes until
November 3, 1993, his parole expired and the USPC lost jurisdiction because it did not execute
the warrant or revoke his parole prior to September 12, 1993. (Doc. 68, at 4.)
This Court’s Memorandum and Order (Doc. 57–1) shows that Petitioner was sentenced
for his crimes in Jackson County, Missouri, on November 3, 1993; and he also pleaded guilty to
crimes in Jasper County, Missouri, and was sentenced on May 17, 1993, for those crimes.
(Doc. 57–1, at 3.) The USPC’s warrant is dated September 9, 1992, and provides that it should

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not be executed “if subject is being held in custody on other Federal, State, or Local charges,
unless otherwise ordered by the Commission.” (Doc. 67–1, at 2.) This Court addressed the
USPC’s discretion in issuing and disposing of parole violator warrants in its Memorandum and
Order. (Doc. 57–1, at 10–11) (“In the case of any parolee charged with a criminal offense and
awaiting disposition of the charge, issuance of a summons or warrant may be withheld, a warrant
may be issued and held in abeyance, or a warrant may be issued and a detainer may be placed.”
28 C.F.R. § 2.44(b).). The Court also found that when the USPC issues a warrant or a parolee is
convicted of a new crime, the parolee’s parole term is tolled until the warrant is executed. Id. at
11 (citing 28 C.F.R. § 2.47(e)(2)). Petitioner’s arguments do not show a clear case on the merits
of his Petition, or provide exceptional circumstances warranting relief under Rule 23(b)(2) or (3).
Petitioner also argues that his motion should be granted as unopposed because
Respondent has not filed a formal notice of appearance in this case, and that the United States
Attorneys entered into a conspiracy with the Court by “causing his motion for default to be
dismissed illegally.” (Doc. 68, at 4.) Petitioner’s bare allegation of a conspiracy lacks any
factual support and is completely without merit. Petitioner’s motion for default was based on his
allegation that Respondent’s pleading should be stricken due to counsel’s “illegal signature” on
the pleading. The Court has addressed Petitioner’s arguments regarding the “illegal signature”
and the lack of a formal notice of appearance, and found both to be frivolous and meritless. The
Court held that:
The Rules Governing Habeas Corpus do not require a formal entry
of appearance, nor did the Court direct such a notice. Regarding
service, the Court previously cited Rule 4—the clerk must serve a
copy of the petition and any order on the respondent and on the
attorney general or other appropriate officer of the state involved.
The Clerk, pursuant to the Court’s Order to Show Cause (Doc. 6),
emailed the U.S. Attorney’s office a copy of the Order to Show
Cause, the Petition, and a current docket sheet.
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(Doc. 36, at 12.)

The Court also found that counsel’s typed “s/” signature was in compliance

with this Court’s Local Rule 5.4.8. Id. at 11–12.
IT IS THEREFORE ORDERED BY THE COURT that Petitioner’s Emergency
Application for Modification of Detention Order (Doc. 62) is denied.

Petitioner shall be

detained in the custody from which release is sought pursuant to Fed. R. App. P. 23(b)(1).
Copies of this order shall be transmitted to Petitioner and to the Clerk of the U.S. Court
of Appeals for the Tenth Circuit.
IT IS SO ORDERED.
Dated October 7, 2019, in Kansas City, Kansas.

S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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