Blue Thunder v. United States Parole Commission et al
MEMORANDUM OPINION & ORDER: Petitioner's 33 MOTION to Alter or Amend 32 the Amended Judgment is DENIED. Signed by Judge Joseph M. Hood on October 20, 2014. (AWD) cc: Petitioner via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
JAMES DAVID BLUE THUNDER,
) Civil Action No. 5:13-187-JMH
UNITED STATES PAROLE
COMMISSION, et al.,
This matter is before the Court upon James David
Blue Thunder’s (“Blue Thunder”) Motion to Alter or Amend
the Amended Judgment [DE 33].
The Court being adequately
advised, his Motion will be denied.
Blue Thunder is an inmate confined by the Bureau of
Proceeding without counsel, Blue
pursuant to 28 U.S.C. § 2241, challenging the decision of
the United States Parole Commission (“USPC”) dated June
22, 2012, continuing his case for a year and scheduling a
Petition before this Court was the last in a long series
relief from the 1998 decision of the USPC to revoke his
Blue Thunder claims that, when the USPC originally
revoked his parole in 1998, the USPC relied on hearsay
evidence and otherwise improperly revoked his parole.
claims that in taking these actions, the USPC exceeded
capricious manner, and violated his right to due process
of law guaranteed by the Fifth Amendment of the U.S.
Blue Thunder asserts that there was no
rational basis for the USPC’s action, and he seeks an
order temporarily restraining the USPC from enforcing its
He claims that he is in custody in violation of
the U.S. Constitution and laws of the United States, and
he seeks immediate release.
Thunder’s § 2241 petition as successive and an abuse of
The factual and procedural history of Petitioner’s claims, as they
relate to this matter, have been set forth at length in previous orders
and will not be repeated here.
which he characterized as a motion filed pursuant to Fed.
R. Civ. P. 59(e).2
[DE 25.] The Court granted his Motion
Petitioner should be free to file an appeal since he paid
the filing fee and did not proceed in forma pauperis, but
denied it in all other regards.
Judgment was entered on May 5, 2014.
In his second Motion to Alter or Amend Judgment, now
before the Court, Blue Thunder argues that this Court
erred in how it considered “Ground Four” of his Petition
upon its initial review of his Petition and, again, on
Specifically, he argues that this Court should
have considered Ground Four of his Petition as a request
for a declaration of rights under 28 U.S.C. § 2201 rather
than a petition for habeas corpus under 28 U.S.C. § 2241
because it did not challenge the fact or duration of his
confinement, relying on Somerville v. Federal Bureau of
Prisons, 579 F.Supp.2d 821 (E.D.Ky. 2008) (holding that
On April 8, 2014, this case was reassigned to the undersigned
following the death of Senior United States District Judge Karl S.
Forester. [DE 28.]
Prisons to remove designation of offense as one involving
action seeking a declaratory judgment under 28 U.S.C. §§
Administrative Procedures Act).3
Petitioner’s Ground Four as a petition for a writ of
In “Ground Four,” Petitioner argued that his due process rights were
violated in the parole revocation process and that he is, thus, being
held in violation of the Constitution and laws of the United States
because his hearing was conducted by a hearing officer under a
delegation of authority by the United States Parole Commissioner in 28
C.F.R. § 2.23 made pursuant to but which exceeded the scope of 18
U.S.C. § 4203(c).
18 U.S.C. § 4203(c) permits the Commissioner to
“delegate to hearing examiners any powers necessary to conduct hearings
and proceedings, take sworn testimony, obtain and make a record of
pertinent information, make findings of probable cause and issue
subpoenas for witnesses or evidence in parole revocation proceedings,
and recommend disposition of any matters enumerated in subsection (b)
of this section. . .” 28 C.F.R. § 2.23 delegates to hearing officers
“the authority necessary to conduct hearings and make recommendations
relative to the grant or denial of parole or reparole, revocation or
reinstatement of parole or mandatory release, and conditions of parole”
as well as “the authority necessary to make a probable cause finding,
to determine the location of a revocation hearing, and to determine the
witnesses who will attend the hearing, including the authority to issue
subpoenas for witnesses and evidence.”
Petitioner argues that the
delegation fails to provide the hearing officer the authority to “take
sworn testimony” and, thus, he could not be provided the process that
he would have otherwise had before the Commissioner had the delegation
to conduct hearings not been made.
The Court is not immediately
persuaded there Petitioner’s argument makes sense for a number of
reasons, not the least of which is because it appears that the
authority to take sworn testimony was in fact, delegated to the hearing
officers as part of the authority to conduct hearings and contrary to
The Court need not reach a conclusion on this
issue, however, and declines to do so.
“actions committed to agency discretion for purposes of
jurisdiction to review Parole Commission determinations.
18 U.S.C. § 4218(d) (repealed); see 5 U.S.C. 701(a)(2)
(“This chapter applies . . . except to the extent that .
. . agency action is committed to agency discretion by
Petitioner has identified no other basis upon
which to predicate a request for a declaration of rights
under 28 U.S.C. § 2201.
As the Court may review the
Commission’s actions only “to determine whether they are
unconstitutional or exceed the scope of the Commission’s
Malave v. Hedrick, 271 F.3d 1139, 1140 (8th
Cir. 2001); Page v. Hastings, 2006 WL 1867380 (E.D.Ky.
June 30, 2006) (citing Kimberlin v. White, 7 F.3d 527,
Comm’n, 851 F.2d 127, 129-30 (6th Cir. 1987 (per curiam);
1984)), the Court properly understood the request for
relief as a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2241.
The Court has already determined that the Petition
is successive and an abuse of the writ meriting dismissal
Accordingly, IT IS HEREBY ORDERED that James David
Judgment [DE 33] is DENIED.
This the 20th day of October, 2014.
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