Ellis v. Virginia Parole Board
MEMORANDUM OPINION & ORDER: 1. The Clerk of the Court shall, on the CM/ECF cover Sheet, list "Carleton Ellis" as an alias designation for Petitioner Carlton Ellis. 2. The Clerk of the Court shall, on the CM/ECF cover Sheet, list the Circuit Court of Orange County, Virginia, and the Office of the Attorney General for the State of Virginia, as additional respondents to this action. 3. Ellis's 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1 ] is DENIED. 4. Ellis's letter [R. 7 ] construed as a motion requesting the Clerk of the Court to issue summons for the respondents, is DENIED as MOOT.5. The Court will enter an appropriate Judgment. 6. This matter is STRICKEN from the docket. Signed by Judge David L. Bunning on 03/06/2015.(KJA)cc: COR, mailed paper copy to pro se filer
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
a/k/a CARLETON ELLIS, 1
VIRGINIA PAROLE BOARD, et. al.,2
Civil Action No. 14-208-DLB
Carlton Ellis is presently confined by the BOP in the United States PenitentiaryMcCreary, located in Pine Knot, Kentucky. Ellis has filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from a detainer3 which he
states that the Virginia Parole Board (“VPB”) has lodged against him.
The Court conducts an initial review of habeas corpus petitions, 28 U.S.C.
§ 2243; Alexander v. Northern Bureau of Prisons, 419 F. App’x 544, 545 (6th Cir. 2011),
and must deny the petition “if it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.” Rule 4 of the Rules Governing
Ellis spells his first name “Carlton,” but the Bureau of Prisons (“BOP”) lists his first name as “Carleton.”
See http://www.bop.gove/inmateloc/ (last visited on February 25, 2015). The Clerk of the Court will be
instructed to list “Carleton Ellis” as an alias designation for the petitioner.
In his attached Memorandum, Ellis identifies two other respondents: the Orange County, Virginia,
Circuit Court, and the Office of the Attorney General for the State of Virginia. [R. 1-1, p. 1]. The Clerk of
the Court will be instructed to add these entities as respondents to this action.
A detainer is a “request filed by a criminal justice agency with the institution in which a prisoner is
incarcerated, asking the institution either to hold the prisoner for the agency or notify the agency when the
release of the prisoner is imminent.” Norton v. Parke, 892 F.2d 476, 477 n. 1 (6th Cir. 1989) (quoting
Carchman v. Nash, 473 U.S. 716, 719 (1985)).
§ 2254 Cases in the United States District Courts (applicable to § 2241 petitions
pursuant to Rule 1(b)).
The Court evaluates Ellis’s petition under a more lenient
standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S.
89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the
Court accepts Ellis’s factual allegations as true, and liberally construes his legal claims
in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).
Having reviewed the habeas petition, the Court must deny it because Ellis must
assert the challenge to his detainer in the state courts of Virginia. The Court also will
deny as moot Ellis’s motion requesting the issuance of summons for the respondents.
The following is a summary of the facts, based on information contained in Ellis’s
§ 2241 petition and information publically available through PACER, the federal
judiciary’s online database.
In December 1989, Ellis was charged with robbery in
Orange County, Virginia. He was subsequently convicted of the offense and received a
44-year prison sentence, but he was paroled from that sentence on August 29, 2010.
On February 25, 2013, a criminal complaint was filed in federal court in
Alexandria, Virginia, charging Ellis with using and carrying a firearm during and in
relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(2). United States v.
Carlton Eugene Ellis, No. 1:13-CR-198-GBL (E.D. Va. 2013) [R. 1, therein;4 see also,
Affidavit of Victor Castro, Special Agent employed by the Federal Bureau of Alcohol,
Tobacco, Firearms, and Explosives (“ATF”) R. 2, therein]. On that same date, Ivan D.
The criminal complaint alleged that on September 28, 2012, Ellis carried a firearm during and in
relation to a drug trafficking crime.
Davis, United States Magistrate Judge, issued a warrant for Ellis’s arrest.
On March 5, 2013, federal agents arrested Ellis. [Id.] On that same date, the
VPB filed a warrant charging Ellis with violating the terms of his parole, and Ellis was
immediately committed to the Alexandria County Jail.
On March 7, 2013, after
conducting a detention hearing in the federal criminal proceeding, United States
Magistrate Judge Theresa Carroll Buchanan entered a “Detention Order Pending Trial,”
pursuant to which Ellis was ordered to remain in custody. [R. 11, therein]. On July 3,
2013, Ellis entered into a Plea Agreement in which he pleaded guilty to the § 924 (c)
firearm offense [R. 32, therein], and on September 13, 2013, he received a 30-month
prison sentence, to be followed by a 5-year term of supervised release. [R. 57, therein].
In his § 2241 petition, Ellis contends that the VPB scheduled a parole revocation
hearing for September 25, 2013, but that the revocation hearing has never occurred.
Ellis claims that he was improperly held in the Orange County, Virginia jail from March
4, 2013, until October 2013, and that the VPB failed to conduct a hearing within a
reasonable time as required by Morrisey v. Brewer, 408 U.S. 471 (1972); that the VPB
has improperly lodged a detainer warrant with the BOP authorities; and that the VPB
has not acted in good faith. Ellis states that he “…should have been taken back to the
state prison on the violation within the time frame He [sic] was held at a county jail.” [R.
1-1, p. 2]. Ellis further states that the VPB violated his constitutional rights “by denying
him a fair revocation hearing and by not having him recommitted back to state custody
so that his Federal time would have run while he was in state custody.” [Id., p. 3]. Ellis
also contends the parole-violator detainer issued by the VPB has adversely affected his
ability to be placed in a halfway house. [Id.] Ellis’s claims thus fall under the Fifth
Amendment of the U.S. Constitution, which guarantees due process of law.
Ellis seeks an order directing the VPB to remove all parole violation warrants and
detainers, and to award him “credit for time served.” [Id.] Presumably, Ellis refers to the
time which he has served in custody since March 2013.
Ellis is asking this Court to order the VPB to withdraw the parole warrant and
detainer which it issued in March 2013, and to credit his 1989 state sentence with the
time that he has served in custody, on the basis that the VPB violated his rights set forth
in Morrisey v. Brewer. The entities named as respondents to this action are the VPB,
the Attorney General of Virginia, and the Orange County Circuit Court, and those are
the entities from which Ellis seeks relief in this proceeding. Ellis does not allege that the
BOP or any federal official has violated his federal constitutional rights.
This Court cannot grant Ellis any of the relief which he seeks, because a prisoner
must apply to a state court for relief from a state detainer. See Robinson v. People of
the State of Illinois, 752 F. Supp. 248, 249 (N.D. Ill. 1990) (concluding that “no arguable
legal basis” existed for the plaintiff/petitioner’s mandamus request to compel the state
court to order the removal of a state detainer). A federal court has no superintending
function or control over a state court, and no general power to compel action by state
officers. Id.; Davis v. Lansing, 851 F.2d 72, 74 (2d Cir. 1988); Van Sickle v. Holloway,
791 F.2d 1431, 1436 n.5 (10th Cir. 1986); More v. Clerk, DeKalb County Superior Court,
474 F.2d 1275,1276 (5th Cir. 1973) (per curiam); Haggard v. Tennessee, 421 F.2d
1384, 1386 (6th Cir. 1970).
If Ellis wants to compel judicial action regarding his state detainer, he must apply
to a state court in Virginia where the detainer was issued, as state law issues are
involved. See Wade v. Hamilton County Prosecutor's Office, No. 1:11-CV-590, 2011
WL 5920770 (S.D. Ohio Nov. 7, 2011) (“…to the extent Mr. Wade seeks mandamus
relief by requesting rulings compelling state officials to either lodge a detainer or dismiss
the outstanding warrants, this Court lacks the authority to grant such relief.”); Smith v.
Ohio Adult Parole Authority, 2010 WL 1839017, at *4 (E.D. Ky. May 5, 2010) (“If
Petitioner believes that the Ohio Adult Parole Authority has acted in contravention of
state law, the petitioner must initiate proceedings within the state courts of Ohio to
effectuate relief. Federal courts are without authority to issue writs of mandamus to
direct state officials to conform their conduct to state law.”); Seward v. Heinze, 262 F.2d
42 (9th Cir. 1958) (issues concerning whether sentencing state had waived its right to
insist upon completion of the petitioner’s numerous state sentences was a question of
state law); McCowan v. Nelson, 436 F.2d 758 (9th Cir. 1970) (whether California Adult
Authority was required to promptly execute its order suspending petitioner's parole and
whether petitioner was entitled to credit for time spent in Arizona jail awaiting extradition
on Authority’s order were state law questions not within competence of federal habeas
corpus court). Simply put, this Court has no jurisdiction over the State of Virginia’s
administration of Ellis’s state sentence and/or the application of sentencing credits, if
any, towards his state sentence.
As for Ellis’s reliance on Morrissey v. Brewer, it is true that in Morrissey, the
Supreme Court of the United States set forth certain minimum due process
requirements that must be met in order to revoke parole, analyzing the situation in terms
of two stages: (1) an initial inquiry “in the nature of a ‘preliminary hearing’ to determine
whether there is probable cause ... to believe that the arrested parolee has committed
acts that would constitute a violation of parole conditions,” and (2) a revocation hearing
leading to “a final evaluation of any contested relevant facts and consideration of
whether the facts as determined warrant revocation.” See Morrissey, 408 U.S. at 488.
Once a parolee is arrested on a parole violation warrant, he is entitled to a
probable cause hearing concerning the acts he is alleged to have committed. Id. at
485. It is conceivable that a parolee might violate the conditions of parole, but that
these violations might not warrant revocation in every case, thus the need for a final
revocation hearing in which he may dispute the allegations that he violated conditions of
parole and, if he did violate, the opportunity to introduce circumstances in mitigation to
persuade the hearing body that the violation did not warrant revocation. Id. at 488.
Ellis’s argument is that since the VPB did not proceed with parole revocation
proceedings earlier, then the State of Virginia should not be permitted to detain him
after he is released from his current federal sentence.5 Ellis’s situation differs from that
in Morrissey because on February 23, 2013, Ellis was charged in a Virginia federal court
with carrying a firearm during and in relation to a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(2). That charge was supported by the 11-page sworn Affidavit of ATF
Special Agent Victor Castro, who set forth therein detailed facts alleging that on
According to the BOP’s website, Ellis, BOP Register No. 95226-016, has a projected release date of
May 7, 2015.
September 28, 2012, Ellis had carried a firearm during and in relation to a drug
trafficking crime, while he was on parole from his state sentence.
Further, on March 7, 2013, after conducting a detention hearing, a federal
Magistrate Judge issued a Detention Order requiring that Ellis remain in custody while
his federal criminal proceeding was pending. Given these facts, a preliminary hearing
under Morrissey was unnecessary because the federal charge filed against Ellis and the
resulting Detention Order established that there was probable cause “... to believe that
the arrested parolee has committed acts that would constitute a violation of parole
conditions,” as required by Morrissey.
Further, as for Morrissey’s requirement that a final revocation hearing be
conducted, that requirement has effectively been satisfied because Ellis’s subsequent
federal firearm conviction conclusively establishes that he violated the terms of his state
parole. The Sixth Circuit addressed a factually similar claim in Phipps v. Runda, No. 925123, 1992 WL 133030 (6th Cir. June 12, 1992). Phipps was paroled after serving
sentences imposed by the Kentucky state courts. Id. at *1. While he was on parole,
Phipps pleaded guilty in federal court to two counts of bank robbery. Id. Following his
federal conviction, the Kentucky Board of Parole issued a parole violation warrant
against Phipps, which was lodged as a detainer at the federal prison where Phipps was
serving his federal sentence. Id. Phipps brought a § 2241 petition for habeas corpus
claiming that the Kentucky Board of Parole violated his due process rights by failing to
conduct a prompt parole revocation hearing. Id. The district court denied his § 2241
petition and on appeal, the Sixth Circuit affirmed, holding that as to his due process
claim, Phipps had not been denied a fundamental right. Id.
Like Phipps, Ellis pleaded guilty to a federal felony offense while he was on
parole for a previous state conviction. Because Ellis’s subsequent conviction by guilty
plea provides irrefutable evidence of his parole violation, Morrissey’s protections do not
apply. See Sneed v. Donahue, 993 F.2d 1239, 1241 (6th Cir.1993) (because parole
decision maker had no discretion but to revoke parole on the basis of a subsequent
conviction, Morrissey did not apply); Santiago–Fraticelli v. Thomas, No. 99–6178, 2000
WL 924602, at *1 (6th Cir. June 26, 2000). Ellis, therefore, fails to raise a meritorious
due process claim based on Morrissey with respect to the detainer issued by the VPB.6
Ellis next claims that as a result of the detainer, he is not eligible for halfway
house placement, but that claim also fails to implicate a due process concern. Ellis has
no constitutional right to any particular placement or security classification. “[A]n inmate
has no justifiable expectation that he will be incarcerated in any particular prison within
a State ....” Olim v. Wakinekona, 461 U.S. 238, 245 (1983); see also Moody v. Daggett,
429 U.S. 78, 88 n. 9 (1976). A change in security classification to a higher level of
The Interstate Agreement on Detainers Act (“IADA”) regulates the speedy disposition of untried criminal
charges in the detainer context. The IADA requires a “trial within one hundred and eighty days” after the
prisoner requests “final disposition” under the IADA. 18 U.S.C. App. 2 § 2 art. III(a). However, in
Carchman, the Supreme Court explained that the IADA applies only to criminal prosecutions, not to
detainers based parole violations, and that no independent constitutional right to a “speedy probation
revocation hearing” exists. Carchman, 473 U.S. at 725, 731 n.10 (“This Court has never held, however,
that a prisoner subject to a probation-revocation detainer has a constitutional right to a speedy probation
revocation hearing.”). The Sixth Circuit has applied the ruling in Carchman to parole-revocation
detainers. See White v. United States, 113 F.3d 1236, 1997 WL 205615 at *2 (6th Cir. April. 24, 1997)
(unpublished table decision).
Thus, no federal statute requires the VPB to conduct a parole revocation hearing prior to Ellis
completing his federal sentence. See also Davis v. Stine, No. 05-CV-673-KKC, 2006 WL 1050069, at *3
(E.D. Ky. Apr. 20, 2006) (“There is nothing impermissible in waiting until a parole or probation violator is
released from federal custody before holding revocation proceedings.”) (citing Bennett v. Bogan, 66 F.3d
812 (6th Cir. 1995), cert. denied, 116 S. Ct. 1025 (1996)); Alexander v. Warden, Bell Forestry Camp, No.
5:12-CV-80-KKC-HAI, 2013 WL 875907, at *5 (E. D. Ky. Feb. 7, 2013).
security, with nothing more, is not the type of atypical and significant deprivation in
which an inmate might have a liberty interest. See Sandin v. Conner, 515 U.S. 472,
485-86 (1995); Rimmer-Bey v. Brown, 62 F.3d 789, 790-91 (6th Cir. 1995); Mackey v.
Dyke, 111 F.3d 460, 463 (6th Cir. 1997). The Sixth Circuit also has held that “the denial
of participation in a community placement program is not the type of atypical and
significant deprivation in which the state might create a liberty interest.”
Loucks, No. 96-1583, 1997 WL 215517, at *1 (6th Cir. April 29, 1997) (citing Sandin,
515 U.S. at 483-84). For these reasons, the Court will summarily dismiss Ellis’s § 2241
habeas petition pursuant to Rule 4 because it fails to raise a meritorious federal claim.
Finally, Ellis has also submitted a letter [R. 7] in which he asks the Clerk of the
Court to issue a civil summons for the VPB; the Orange County, Virginia, Circuit Court;
and the Attorney General for the State of Virginia. This is a 28 U.S.C. § 2241 habeas
corpus proceeding, so the issuance of a “civil summons” is not procedurally warranted.
Regardless, because Ellis’s § 2241 petition will be denied, his letter/construed motion
requesting the issuance of a civil summons will also be denied as moot.
Accordingly, IT IS ORDERED that:
The Clerk of the Court shall, on the CM/ECF cover Sheet, list “Carleton
Ellis” as an alias designation for Petitioner Carlton Ellis.
The Clerk of the Court shall, on the CM/ECF cover Sheet, list the Circuit
Court of Orange County, Virginia, and the Office of the Attorney General for the State of
Virginia, as additional respondents to this action.
Ellis’s 28 U.S.C. § 2241 petition for a writ of habeas corpus [R. 1] is
Ellis’s letter [R. 7] construed as a motion requesting the Clerk of the Court
to issue summons for the respondents, is DENIED as MOOT.
The Court will enter an appropriate Judgment.
This matter is STRICKEN from the docket.
This 6th day of March, 2015.
G:\DATA\ORDERS\ProSe\Ellis 14-208-DLB Dism 2241 CKS.doc
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