McCoy v. United States Parole Commission

Filing 13

ORDER ADOPTING REPORT AND RECOMMENDATION 10 of Magistrate Judge Bernard Jones...concluding that plaintiff's claims are frivolous and the action fails to state any plausible claims upon which mandamus relief may be granted; after plaintiff has exhausted or waived his right to appeal, the dismissal will count as a "strike" under 28:1915(g). Signed by Honorable Joe Heaton on 09/25/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ERVIN LEE MCCOY,
Plaintiff,
vs.
UNITED STATES PAROLE
COMMISSION
Defendant.

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NO. CIV-15-0762-HE

ORDER
Plaintiff Ervin Lee McCoy, a federal parolee and state prisoner appearing pro se and
in forma pauperis, has filed a petition for writ of mandamus. Consistent with 28 U.S.C. §
636(b)(1)(B) and (C), the matter was referred for initial proceedings to Magistrate Judge
Bernard M. Jones, who has recommended that the petition be dismissed. Plaintiff has
objected to the Report and Recommendation.
Plaintiff, who currently is in state custody, challenges a federal detainer lodged against
him. He claims he has been unconstitutionally denied the right to a timely parole revocation
hearing and that the United States Parole Commission (“USPC”) lacks jurisdiction over him.1
Conducting the initial review required by 28 U.S.C. § 1915(e)(2)(B), the magistrate
judge rejected plaintiff’s claim that he was entitled to madamus relief. He concluded that
plaintiff is not entitled to a parole revocation hearing until the parole violator warrant is
executed and he is taken into custody as a parole violator. He also rejected plaintiff’s

1

Plaintiff raised similar claims in a previous habeas petition. McCoy v. United States Parole
Comm’n, 2013 WL 1759565 (W.D. Okla. April 24, 2013).

jurisdictional argument. He noted that plaintiff’s federal sentence has not yet expired, and
that the fact that plaintiff is currently in state custody does not divest the USPC of
jurisdiction. He further noted that “where the warrant is issued prior to the expiration of the
federal sentence, the USPC retains jurisdiction to conduct parole revocation proceedings
even after expiration of the parolee’s sentence.” Doc. #19, p.6 n.6.
In his objection, plaintiff essentially reiterates the arguments made in his petition. He
claims he is prejudiced by the USPC’s detainer because it makes him ineligible for minimum
security placement while he is in state custody and he will remain ineligible even after his
federal sentence expires on April 30, 2016. He also asserts that defendant has violated his
due process rights by failing to provide him with a revocation hearing. What he does not do
is explain any error in the magistrate judge’s various determinations.
Having conducted the required de novo review, the court agrees with the magistrate
judge’s analysis and his conclusion that plaintiff’s claims are frivolous and the action fails
to state any plausible claims upon which mandamus relief may be granted. Accordingly, the
court ADOPTS the magistrate judge’s Report and Recommendation and dismisses the
petition. 28 U.S.C. § 1915(e)(2)B)(i) and (ii). After plaintiff has exhausted or waived his
right to appeal, the dismissal will count as a “strike” under 28 U.S.C. §1915(g).
IT IS SO ORDERED.
Dated this 25th day of September, 2015.