Gonzales v. Commandant, United States Disciplinary Barracks, Fort Leavenworth, Kansas et al

Filing 19

AMENDED MEMORANDUM OPINION & ORDER: It is ordered that Petitioner's 1 Petition for Writ of Habeas Corpus is DENIED. Signed by Judge Joseph M. Hood on 4/5/2013.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

RICARDO K. GONZALES,
Petitioner,
v.
COMMANDANT, UNITED STATES
DISCIPLINARY BARRACKS, FORT
LEAVENWORTH, KANSAS, et.
al.,
Respondents.

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Civil Case No.
5:12-cv-142-JMH
AMENDED MEMORANDUM OPINION
& ORDER

***
This matter is before the Court on Ricardo Gonzales’s
Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
[D.E. 1].1

The United States has responded [D.E. 16], and

the time has passed for Petitioner’s reply.
matter

is

now

ripe

for

review.

For

the

Thus, this

reasons

which

follow, the petition will be denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2003, Petitioner, a former captain in the
United States Army, was found guilty of several offenses
including sodomy with a child under the age of sixteen,
unlawful damage of military and non-military property, and
making

false

official

[D.E. 16-1 at 6—9].

statements,

among

other

charges.

He was originally sentenced to fifteen

1

This Amended Memorandum Opinion and Order is issued solely
to reflect a typographical error that the Court noticed
after it was filed.
1

years of confinement and dismissal from the army.
16-1

at

9].

Ultimately,

the

convening

authority

[D.E.
only

approved a sentence of eleven years and nine months with a
sixty-one
service.

day

confinement

credit

and

dismissal

from

[D.E. 1-1 at 7].

On April 20, 2010, the Army Clemency and Parole Board
(“ACPB”) informed Petitioner that he would be placed on
mandatory supervised release (“MSR”) on his minimum release
date.

[D.E. 16-1 at 14, 26].

Petitioner

was

required

appropriate

to

As conditions of his MSR,
enroll

complete

an

child

program.

[D.E. 16-1 at 18—19].

in

sex

and

successfully

offender

aftercare

Further, he was told that,

if state law so required, he would have to register as a
sex

offender.

[D.E.

16-1

at

19].

Petitioner

was

instructed to submit an acceptable supervision plan for his
MSR,

as

1325.7.

required

by

Department

of

Defense

Instruction

[D.E. 16-1 at 13—24]; [D.E. 16-10, Instruction

1325.7, at 26 (“The prisoner shall be required to submit a
parole plan and agree in writing to abide by that plan.”)].
However, Petitioner’s submitted plans to live with his wife
or sister were denied because his wife was unwilling to
accept him into her home, and his sister resided in a oneroom

studio

apartment

that

2

inspectors

determined

was

inappropriate living space for two adults.

[D.E. 16-1 at

24—25].
After these MSR plans were rejected, Petitioner failed
to provide acceptable plans at the ACPB’s request.
16-4

at

10—11].

Accordingly,

Petitioner’s

[D.E.

case

was

forwarded to a Discipline and Adjustment Board (“DAB”) in
August

2010,

where

he

was

afforded

the

opportunity

submit evidence and arguments on his behalf.
5—16].

to

[D.E. 16-4 at

The DAB found him guilty of violating a lawful

order, and held that he forfeited ninety days of abatement
credit as a result; however, Petitioner was informed that
if he submitted a valid MSR plan, his credits would be
restored.

[D.E. 16-4 at 12].

When Petitioner again failed

to submit a valid MSR plan, he was brought back before the
DAB in November 2010.
the

DAB

held

that

[D.E. 16-3 at 24—33].
Petitioner

forfeited

This time,

all

remaining

abatement credits by failing to abide by lawful orders, but
was again instructed that the credits would be restored if
he submitted a valid plan.
Instead
remained

in

of

[D.E. 16-3 at 25].

submitting

confinement

a

and

valid

MSR

submitted

plan,
two

Petitioner

extraordinary

writ appeals to the U.S. Army Criminal Court of Appeals
(“ACCA”).

[D.E. 16-5 at 1—3]; [D.E. 16-8 at 18—28]; [D.E.

16-9 at 1—13].

The ACCA denied the petitions on June 29,
3

2010, and July 16, 2010, and, although he appealed both
denials to the Court of Appeals for the Armed Forces, they
were denied.
After

[D.E. 16-5 at 22—41]; [D.E. 16-8 at 24].

exhausting

his

appeals,

Petitioner

filed

a

habeas

petition in the United States District Court for District
of Kansas on July 22, 2010, but he voluntarily withdrew it
after the court ordered him to show cause why it should not
be dismissed.2

[D.E. 16-5 at 10—15]; [D.E. 16 at 6].

Petitioner
Center

in

was

transferred

Lexington,

September 13, 2011.

to

Kentucky,

the

(“FMC

[D.E. 16-3 at 20].

Federal

Medical

Lexington”)

on

When transferred,

Petitioner’s minimum release date was August 28, 2013, and
his maximum release date was March 20, 2015; however, due
to

newly

earned

abatement

credits,

release date rests at May 27, 2013.
6].

his

current

minimum

[D.E. 16-3 at 18—19;

Petitioner filed his second habeas petition in this

Court on May 7, 2012.

[D.E. 1].

2

Petitioner’s first petition sought substantially the same
relief as he presently seeks.
Gonzales v. United States,
5:10-cv-03153-RDR (D. Kan.), D.E. 1.
The court ordered
Petitioner to show cause why his petition should not be
dismissed given the substantial similarity of his claims to
those rejected by the court in Huschak v. Gray, 642 F.
Supp. 2d 1268 (D. Kan. 2009). Gonzales, 5:10-cv-03153-RDR,
at D.E. 9.
On October 14, 2010, Petitioner chose to
withdraw his petition, but reserved the right to re-file at
a later date once he acquired legal counsel.
Gonzales,
5:10-cv-03153-RDR, at D.E. 10.
4

II. STANDARD OF REVIEW
Habeas corpus relief may be granted under 28 U.S.C. §
2241

to

custody

a

federal

in

prisoner

violation

of

who

the

demonstrates

Constitution

treaties of the United States.”

he

in

laws

or

“is

or

28 U.S.C. § 2241(c)(3).

“At this stage the Court accepts the petitioner's factual
allegations

as

true

and

construed in his favor.”

his

legal

claims

are

liberally

Jessiah v. Holland, No. 12-144-

GFVT, 2013 WL 460624, at *1 n.1 (E.D. Ky. Feb. 6, 2013)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555–
56

(2007)).

“The

court

must

deny

the

petition

‘if

it

plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief.’”

Wilkes v.

Quintana, 12-CV-228-JBC, 2013 WL 84931, at *1 (E.D. Ky.
Jan. 7, 2013) (citing Rule 4 of the Rules Governing § 2254
Cases in the United States District Courts (applicable to §
2241 petitions pursuant to Rule 1(b))).
Further,

in

a

military

case,

“[w]here

there

is

no

colorable jurisdictional question, a finding of full and
fair consideration ends our habeas corpus inquiry.”

Witham

v. United States, 355 F.3d 501, 505 (6th Cir. 2004) (citing
Burns v. Wilson, 346 U.S. 137, 142 (1953)); see also Lips
v.

Commandant,

United

States

Disciplinary

Barracks,

997

F.2d 808, 811 (10th Cir. 1993) (“[I]f the military gave
5

full and fair consideration to claims asserted in a federal
habeas corpus petition, the petition should be denied.”).
III. ANALYSIS
As an initial matter, Respondent has argued that the
Commandant
(“USDB”)

of

in

the

Fort

United

States

Leavenworth,

respondent in this action.
agrees.

“The

federal

Disciplinary

Kansas,

is

not

a

[D.E. 16 at 8].

habeas

statute

Barracks
proper

The Court

straightforwardly

provides that the proper respondent to a habeas petition is
‘the

person

who

has

custody

over

[the

petitioner].’”

Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28
U.S.C.

§

2242).

Therefore,

when

a

petitioner

is

in

physical confinement, “the proper respondent is the warden
of the facility where the prisoner is being held . . . .”
Id. at 435.

Because Petitioner is no longer imprisoned in

Kansas, but, rather, is imprisoned at FMC Lexington, the
Commandant

USDB

in

Kansas

no

longer

has

custody

over

Petitioner; thus, it is not a proper respondent, and the
petition

against

the

Commandant

USDB

in

Kansas

is

dismissed.
Moving on to the substance of Petitioner’s claim, he
argues that his placement in the MSR program and subjection
to

MSR

conditions

are

unlawful

violations

of

his

due

process rights because 1) he has already served his full
6

sentence,

and

2)

his

original

sentence

did

not

include

supervised release nor required him to register as a sex
offender.

[D.E. 1 at 3, 7].

Therefore, Petitioner argues

that the ACPB’s imposition of these punishments operates as
an unlawful increase of his sentence.
First,

however,

[D.E. 1 at 3].

Petitioner’s

assertion

that

he

finished serving his full sentence on August 27, 2010, his
former
one’s

minimum
minimum

served

a

inherently

release
release

full

date,
date

sentence,

different.

is

flawed.
not

does

Serving
that

because

mean

the

until

one

has

dates

are

serving

Specifically,

two

one’s

full

sentence means that one has served the entirety of the
sentence imposed by the sentencing authority, whereas the
minimum release date is the adjusted date for a prisoner’s
release once deductions or forfeitures of good conduct time
and other abatements have taken place.

[D.E. 16-9, Army

Regulation 633-30, at 31—33]; see also Miller v. Air Force
Clemency & Parole Bd., No. JFM-10-2621, 2011 WL 4402497, at
*13 (D. Md. Sept. 20, 2011) (“A prisoner’s Minimum Release
Date (MinRD) is computed by changing the Adjusted Maximum
Release

Date

to

account

or

any

sentence

abatements

or

forfeitures.”).
In this instance, there is no question that Petitioner
has

not

served

eleven

years
7

and

nine

months,

which

represents his full sentence of confinement.3
28].

[D.E. 16-2 at

Moreover, although August 27, 2010, was Petitioner’s

minimum

release

forfeited
minimum

date

and

earned

release

date

at

[D.E. 16-3 at 6].

one

time,

abatement
currently

Petitioner

credits
rests

such

at

May

has
that
27,

since
his
2013.

Thus, to the extent that Petitioner’s

argument is based on the premise that he has served his
full sentence on August 27, 2010, it is fatally flawed.
Because Petitioner has not served his full sentence,
his second argument, that the imposition of the MSR program
and its conditions operate as an unlawful increase of his
sentence
fails.

in

violation

of

his

due

process

rights,

also

To this Court’s knowledge, the Sixth Circuit has

not specifically considered the general validity of the MSR
program, nor whether its imposition constitutes a sentence
increase

when

one

has

not

served

their

full

sentence.

However, other district courts from sister circuits that
have recently addressed the issue have unilaterally agreed
that MSR does not operate as a sentence increase so long as
the

MSR

supervision

period

lasts

original, court-imposed sentence.
3

no

longer

than

the

See Huschak v. Gray, 642

Petitioner was sentenced on August 21, 2003. [D.E. 1-1 at
7].
Thus, the eleven years and nine months, minus the
sixty-one days of credit given by the sentencing authority,
will not, at this Court’s calculation, come to pass until
March 20, 2015 (i.e. his maximum release date).
8

F. Supp. 2d 1268, 1276—81 (D. Kan. 2009);

Moultrie v.

Sec’y of the Army, 723 F. Supp. 2d 1230, 1237 (C.D. Cal.
2010);

Miller, 2011 WL 4402497, at *12.
For

example,

sentenced

to

eight

in

Huschak,

years

of

the

petitioner

confinement,

and,

was

had

he

conformed to the conditions of MSR, would have served less
than

eight

However,

years.

because

Huschak,
he

642

violated

forfeited good conduct time.

F.

his

Id.

Supp.
MSR

2d

at

1277.

conditions,

he

Regardless, the District

of Kansas found that there was no “increase” in punishment
because he would not serve more than the original eight
years

of

confinement.

Id.

In

Moultrie,

the

Central

District of California similarly dismissed the petitioner’s
claims that his punishment was increased in violation of
his due process rights by being placed on MSR because there
was

no

beyond
Supp.

evidence
the
2d

that

112-month
at

1237.

his

punishment

total

sentence.

Again

in

had

Miller,

been

increased

Moultrie,
the

723

F.

District

of

Maryland found that placement on MSR, even when it is not
mentioned in the original sentence, does not operate as a
sentence

increase

because

“conditional

release

from

confinement, albeit with conditions, is not punishment.”
Miller, 2011 WL 4402497, at *12.

The Court agrees with the

analysis in the above cases, and, therefore, finds that the
9

MSR program does not operate as an administrative sentence
increase in violation of Petitioner’s due process rights
since he will not be confined for longer than his full term
of imprisonment.4
Petitioner’s reliance on Hill v. United States ex rel.
Wampler, 298 U.S. 460 (1936), and Earley v. Murray, 451
F.3d 71 (2d Cir. 2006), to support his claim that the MSR
program and its conditions operate as an improper sentence
increase are misplaced.

First, Petitioner cites Hill for

the proposition that the “only sentence known to the law is
the sentence or judgment entered upon the records of the
court.”
the

Hill, 298 U.S. at 464; [D.E. 1 at 4].

Court

agrees

with

Respondent’s

argument

However,
that

this

proposition is inapposite to Petitioner’s case, since he is
4

The Court recognizes that “due process requires some
evidentiary basis for a decision to revoke good time
credits. . . .”
Superintendent, Mass. Correctional Inst.,
Walpole v. Hill, 472 U.S. 445, 455 (1985). As far as this
Court can tell, Petitioner does not assert any deprivation
in this regard.
Regardless, the DAB afforded Petitioner
due process prior to revoking his abatement credits.
For
example, prior to the DAB’s revocation of his abatement
credits, Petitioner received a hearing, was given the
opportunity to present arguments on his behalf, and was
informed that if he simply complied with their order to
create a valid MSR plan, his credits would be restored.
Moreover, Petitioner does not contest that he failed to
follow the ACPB’s and DAB’s orders to create MSR plans,
which provides the “some evidence” necessary to charge him
with violating a lawful order.
Id. at 454.
The above
certainly meets the less-stringent due process standard
applicable in prison disciplinary proceedings. Id. at 455—
56.
10

not seeking to enforce his original sentence, but, rather,
suggests a nearly four-year downward departure from it.
Moreover,

Petitioner

relies

on

Earley

for

the

proposition that a subsequent addition to a sentence that
is

not

imposed

by

the

sentencing

judge

Earley, 451 F.3d at 75; [D.E. 1 at 4].

is

unlawful.

However, in Earley,

the defendant served four years of his six-year sentence
and

was

then

subjected

to

a

five-year

post-release

supervision period as required under state law.

Id.

The

Second Circuit held that because the original sentencing
judge did not include a term of supervised release in the
sentence, the administratively-added five year supervised
release term was contrary to clearly established federal
law since it increased his sentence by three years.
75—76.

Thus,

the

Earley

decision

is

Id. at

incomparable

to

Petitioner’s situation since there is no chance that the
MSR

program

would

have

ever

required

Petitioner

supervised for longer than his full sentence.

to

be

See Miller,

2011 4402497, at *12 n.16 (finding that the Hill and Earley
decisions

were

“inapposite”

to

the

petitioner’s

case

because “his placement on MSR with conditions did not add
to his sentence.”).
Although the Court concludes that the MSR program and
its conditions do not increase Petitioner’s sentence, it is
11

necessary

to

arguments.

address

one

of

Petitioner’s

collateral

Specifically, Petitioner argues that the MSR

condition

that

rehabilitation

he

complete

program

a

operates

child

as

a

sex

offender

sentence

increase

since the sentencing authority did not mention the above
punishment in its original sentence.

However, pursuant to

Department of Defense Instruction 1325.7, “[a] Clemency and
Parole

Board

conditions

of

may

establish

release

as

and

it

subsequently

considers

modify

reasonable

and

appropriate, such as the requirement to begin or continue
treatment for alcohol or substance abuse.”
26].
are

Moreover, pursuant to any system of parole, prisoners
required

to

conform

to

balance of the sentence.”
843,

[D.E. 16-10 at

850

(2006).

Thus,

“certain

rules

during

the

Samson v. California, 547 U.S.
the

ACPB

had

the

authority

to

impose this requirement on Petitioner, particularly since
he was to be released on MSR far before his full sentence
terminated.
requirement
released.
whether

Further,
that

he

Petitioner
register

also

as

a

focuses

sex

on

offender

the
once

However, Respondent correctly points out that
Petitioner

is

required

to

register

as

a

sex

offender depends upon the state law in the state in which
he

ultimately

chooses

to

reside,

independent of his MSR conditions.
12

and

is

completely

Regardless, the Sixth

Circuit

has

requirements
habeas

determined
do

relief

not
from

that

amount
such

sex

to

offender

custody,

requirements

registration

and,

is

therefore,

inappropriate.

Leslie v. Randle, 296 F.3d 518, 523 (6th Cir. 2002).
Finally,

Petitioner

seems

to

imply

through

his

argument that the MSR program is not a system of parole.5
However, parole has been defined by the Supreme Court as
follows:
The essence of parole is release from prison, before
the completion of sentence, on the condition that the
prisoner abide by certain rules during the balance of
the sentence. Under some systems, parole is granted
automatically after the service of a certain portion
of a prison term. Under others, parole is granted by
the discretionary action of a board, which evaluates
an array of information about a prisoner and makes a
prediction whether he is ready to reintegrate into
society.
Its purpose is to help individuals reintegrate into
society as constructive individuals as soon as they
are able, without being confined for the full term of
the sentence imposed.
Morrissey v. Brewer, 408 U.S. 471, 477—78 (1972).

When

this definition is considered, it is clear that MSR fits
within the framework of parole systems, as prisoners in MSR
are “required to serve the balance of [their] sentence[s]

5

Specifically, Petitioner argues that the “imposition of
supervised release for prisoners who have not been granted
parole, meaning prisoners who are being released because
they
have
served
their
sentences,
is
an
unlawful
administrative extension of a prisoner’s sentence.”
[D.E.
1 at 5—6].
13

outside of confinement on the condition that [they] abide
by certain rules.”

Huschak, 642 F. Supp. 2d at 1276.

“It

does not matter whether the conditions [are] voluntary or
involuntary,” since, “[a]s the Supreme Court stated, under
some parole systems release is automatic.”

Id.; see also

Moultrie, 723 F. Supp. 2d at 1236 (holding that MSR is a
system

of

Further,

parole);

statutory

Miller,
authority

2011

WL

for

the

4402497
MSR

(same).

program

is

provided in 10 U.S.C. § 952, which provides that “[t]he
Secretary

concerned

offenders

who

are

may

provide

confined

a

system

in

of

military

parole

for

correctional

facilities and who were at the time of commission of their
offenses subject to the authority of that Secretary.”
U.S.C. § 952(a).
MSR

is

a

10

Thus, there seems to be no question that

valid

system

of

parole

that

the

ACPB

was

statutorily authorized to impose.
Therefore,

having

carefully

considered

Petitioner’s

writ, IT IS ORDERED that Petitioner’s Petition for Writ of
Habeas Corpus [D.E. 1] is DENIED.
This the 5th day of April, 2013.

14