Bradin v. Reilly, Jr. et al.

Filing 20

MEMORANDUM. Signed by Judge Alexander Williams, Jr on 10/02/2013. (bas, Deputy Clerk)(c/m on 10/02/2013 bca)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
JOHN BRADIN,
Petitioner
v.
EDWARD F. REILLY, et al
Respondents

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: Civil Action No. AW-13-cv-749
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o0o
MEMORANDUM

In the above-captioned Petition for Writ of Mandamus filed on March 11, 2013, John
Bradin alleges that he is entitled to full credit on his federal sentence for time served in state
custody. He further alleges that the federal detainer should be released as his due process right to
a parole revocation hearing has been violated. ECF No. 1. Respondents have filed a Motion to
Dismiss (ECF No. 8) and Petitioner has responded.1 ECF Nos. 11 & 17. After review of these
papers, the Court finds no need for an evidentiary hearing. See Local Rule 105.6 (D. Md. 2011).
Under 28 U.S.C. ' 1361 the federal district courts have original jurisdiction of any action
in the nature of mandamus to compel an officer or employee of the United States or one of its
agencies to perform a duty owed to a petitioner. In order to meet the requirements for mandamus
relief, a petitioner must show: that he has the clear legal right to the relief sought; that the
respondent has a clear legal duty to do the particular act requested; and that no other adequate
remedy is available. See In re First Fed. Savings and Loan Ass'n of Durham, 860 F.2d 135, 138
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Petitioner has also filed two Emergency Motions for Expedited and Hearing. ECF Nos. 13 & 14. The
motions will be denied as moot. Further, to the extent Bradin claims his rights under the Americans with Disabilities
Act have been violated those claims are not properly before this Court. He is free to file the appropriate complaint
concerning these claims in the United States District Court for the District of Missouri. He has also filed a Motion
for Summary Judgment (ECF No. 17) in further opposition to the Respondent’s Answer.
Petitioner’s Motions for Default Judgment (ECF Nos. 10 & 16) shall be denied. The properly named
Respondents filed a timely response to the Petition.
Petitioner’s second Motion to Appoint Counsel (ECF No. 12) shall also be denied.

(4th Cir. 1988); Asare v. Ferro, 999 F.Supp. 657, 659 (D. Md. 1998). The failure to show any of
these prerequisites defeats a district court's jurisdiction under 28 U.S.C. ' 1361. See National
Association of Government Employees v. Federal Labor Relations Authority, 830 F. Supp. 889,
898 (E.D. Va. 1993).

Further, the issuance of a writ of mandamus under ' 1361 is an

extraordinary remedy and is a matter of judicial discretion. See Carter v. Seamans, 411 F.2d 767,
773 (5th Cir. 1969) (citations omitted). Even if the three prerequisite elements are satisfied, the
mandamus remedy lies within the discretion of the trial court. See Oregon Nat. Resource Council
v. Harrell, 52 F. 3d 1499, 1508 (9th Cir. 1995). Thus, mandamus cannot be used to compel the
performance of discretionary duties of federal government officers, but will lie only to compel
ministerial acts. See Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476, 1480 (D.C. Cir. 1995);
Plato v. Roudebush, 397 F. Supp. 1295, 1304-05 (D. Md. 1975). A ministerial act is one in
which the law prescribes and defines a duty to be performed with such precision as to leave
nothing to the exercise of discretion or judgment. See Neal v. Regan, 587 F. Supp. 1558, 1562
(N.D. Ind. 1984).
On July 10, 1975, Petitioner was sentenced by the United States District Court for the
Western District of Missouri to a 25 year term of incarceration for bank robbery. The sentence
was reduced on October 20, 1975, to 15 years. ECF No. 8, Ex. 1. On June 10, 1980, Petitioner
was paroled, to remain under parole supervision until February 4, 1990. Id., Ex. 2.
On April 2, 1985, the U.S. Parole Commission revoked Petitioner’s parole, directed he
receive no street time credit, and ordered he be reparoled after 16 months. Id., Ex. 3. On June 2,
1987, he was reparoled, with an order to remain under supervision until September 29, 1995. Id.,
Ex. 4.
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On March 25, 1988, Petitioner’s parole was again revoked, however, he retained street
time credit, and when he was reparoled on July 5, 1988, his full term date remained September
29, 1995. Id. Exs. 5 & 6. On October 11, 1989, Petitioner’s parole was again revoked. Id. Ex.
7. Petitioner retained street time credit, and was reparoled on May 10, 1991 with his full term
date remaining unchanged. Id., Ex. 8.
On September 9, 1992, the Commission issued a warrant charging Petitioner with
multiple violations of the conditions of parole including felony theft, sodomy, kidnaping, and
absconding from supervision. Id., Ex. 9. Petitioner was in state custody in Missouri awaiting
trial on the new criminal charges and the Commission’s warrant was placed as a detainer against
him. Id., Ex. 10. The warrant was supplemented on February 10, 1993, listing additional
criminal charges. Id., Ex. 11. On June 4, 1993, the warrant was again supplemented to reflect
that Petitioner had been convicted of robbery and armed criminal assault in Jasper County,
Missouri Circuit Court and sentenced to a 10 year term of confinement. Id., Ex. 12.
In 1994, the Commission conducted an “on-the-record” review of the detainer.
Petitioner, through counsel, requested the Commission order an immediate revocation hearing.
Id., Ex. 13. The Commission entered an order on February 9, 1994, to “let detainer stand.” Id.,
Ex. 14. In 1999, in response to correspondence from Petitioner, counsel for the Commission
advised Petitioner that the authority he cited in support of his position that the Commission could
not maintain the detainer against him was no longer valid law. Id., Exs. 15 & 16. On October 15,
2003, by notice of action, the Commission affirmed its prior determination to let he detainer
stand. Id., Ex. 17. The Commission’s detainer has not been executed.
Because Petitioner is currently confined pursuant to a valid conviction, he is not entitled

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to a prompt parole revocation hearing. See Moody v. Daggett, 429 U.S. 78, 87B 88 (1976) (parole
revocation warrant filed as a detainer at the prison where Petitioner is held pursuant to a
conviction that is the basis for the parole revocation is not an executed warrant and does not give
rise to a protected liberty interest requiring prompt hearing); see also Larson v. McKenzie, 554 F.
2d 131, 132 (4th Cir. 1977). Absent a clear obligation to provide a parole revocation hearing,
Petitioner is not entitled to mandamus relief and this case shall be dismissed by separate Order
which follows.
To the extent that Petitioner alleges that the Commission is required to grant him
concurrent service of his federal violator term with the balance of his state sentence, he is in
error. The Commission=s decision whether the parolee=s violator term will run consecutively or
concurrently to his new prison term is committed to the discretion of the Commission. Garcia v.
Neagle, 660 F.2d 983, 988 (4th Cir. 1981) (holding Commission substantive decisions to set
parole are committed to unreviewable agency discretion).

The Commission’s regulations

provide as a matter of policy that a parole violator term is to run consecutively to any new
sentence a parole violator may receive. See 28 C.F.R. ' 2.47(e)(2); Smith v. U.S. Parole
Commission, 875 F.2d 1361, 1364 (9th Cir. 1989) (Commission has the sole authority to decide
when to execute its warrant and “the federal government has no duty to take anyone into
custody.”)
The issuance of a federal parole violation warrant tolls the running of the sentence, and it
does not begin to run again until the warrant is executed. See Russie v. U.S. Dept. of Justice, 708
F.2d 1445, 1448 (9th Cir. 1983) (“such a warrant bars the expiration of a parolee’s sentence and
maintains the Commission’s jurisdiction to retake the parolee even if the retaking occurs after the
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scheduled expiration date of the parolee’s sentence.”) The statutes establishing the federal
standard for parole violation and service of a federal violator term may not be undercut by state
authorities. In other words, state courts, in imposing state sentences, are not authorized to grant
an individual credit against his federal sentence, but only against their own state sentence.
This result is compelled by the principle of dual sovereignty. As the U.S. Court of
Appeals noted in United States v. Sackinger, 704 F.2d 29, 32 (2d Cir. 1983), Aunder the dual
sovereignty principle [a defendant] could not, by agreement with the state authorities, compel the
federal government to grant a concurrent sentence.@ Where federal officials are not parties to the
state plea bargain and/or sentencing determination, courts Areject any implication that the federal
court is obligated to comply with the terms of the plea agreement entered into between the
defendant and state authorities.@ Id.; see also Saulsbury v. United States, 591 F.2d 1028, 1035
(5th Cir. 1979) (AUnless the United States has somehow induced a state guilty plea by making a
representation as to concurrency . . ., a [parole violator] has no right to serve his sentences
concurrently and may not protest when the federal government will not take him into custody
until his intervening state sentence is served.@); Hawley v. United States, 898 F.2d 1513, 1514
(11th Cir. 1990) (finding that in the absence of federal involvement in a state plea bargain,
federal courts are Anot bound by the state court=s intentions and [are] free to use [their] own
discretion in applying federal law to determine the conditions of the [defendant=s] federal
sentence@).
Likewise, a state judge has no authority to direct the actions of the Commission. See
Cotton v. U.S. Parole Commission, 992 F.2d 270 (10th Cir. 1993) (holding that the ACommission
is an independent entity that is not bound by a state judgment in which it did not participate...@

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even if the Commission=s running of the violator=s term consecutive rather than concurrent to the
state sentence frustrates the intent of the state sentencing judge.) See also Meagher v. Clark, 943
F.2d 1277, 1282 (11th Cir. 1991) (holding under principle of dual sovereignty, that petitioner
could not be granted credit on federal sentence that he had resumed serving, as result of federal
parole violation, for time incarcerated under voided, intervening state sentence, even though plea
in state court provided that state and federal sentences were to run concurrently.)
In light of the foregoing, Petitioner is not entitled to mandamus relief. A separate Order
follows.

October 2, 2013

/s/
Alexander Williams, Jr.
United States District Judge

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