Wilson v. Roy

Filing 41

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 32 Memorandum and Recommendations, denying 40 MOTION for Leave to File, denying 39 MOTION to Amend 38 Objections to Memorandum and Recommendations, granting 24 MOTION to Dismiss 1 Petition for Writ of Habeas Corpus (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
FRED WILSON,
Petitioner,
VS.
KEITH ROY,
Respondent.

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§ CIVIL ACTION NO. 2:13-CV-73
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Pending before the Court is Respondent’s motion for summary judgment. D.E.
24. On January 23, 2014, United States Magistrate Judge Jason B. Libby submitted a
Memorandum and Recommendation recommending that Respondent’s motion be
granted. D.E. 32. After requesting and receiving two extensions to file his objections,
Petitioner filed objections on March 4, 2014.

D.E. 35.

Petitioner filed additional

objections on March 11, 2014 (D.E 38), a motion to amend his objections on April 25,
2014 (D.E. 39), and a motion for leave to file sur-objections on May 16, 2014 (D.E. 40).
Petitioner’s objections are set out and discussed below.
First, Petitioner alleges that the Memorandum and Recommendation (M&R)
contains inaccurate facts.

Petitioner states: “On page 2/12 of Magistrate Judge

Memorandum and Recommendation (M&R) the fact[s] are inaccurate stating that
Petitioner [was] serving a 4 to 8 year sentence for knowingly and intentionally possessing
a controlled substance and manufacture delivery or possession with the intent to
manufacture or deliver a control[led] substance.”
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D.E. 35, p. 1. Petitioner insists that

cross-referencing D.E. 17-4, page 8 and D.E. 17-4, page 23 clearly establishes that the
information in the M&R is incorrect.1 D.E. 35, p. 1.
Upon performing the cross-reference urged by Petitioner, this Court finds that the
recitation of facts that Petitioner challenges is correct and supported by the record.
Compare D.E. 17-4, p.8, ¶ 34, with D.E. 17-4, p. 23. Petitioner’s first objection is
OVERRULED.
Second, Petitioner alleges error concerning the following statement in the M&R:
“On December 4, 2006, the armed robbery charges were dismissed by the state. (D.E.
17-4, p. 12). However Petitioner remained in state custody because of the state parole
violation detainer.” D.E. 32, p. 2. Petitioner insists that this claim is “totally inaccurate
because Petitioner was not serving a sentence and was only being detain[ed] by Parole
Board pending disposition of criminal charges.” D.E. 35, p. 1. The M&R does not state
that Petitioner was serving a sentence during the relevant time period. It states that
Petitioner was in state custody and also acknowledges that he was being held on a
violation detainer. There is no disagreement here, and thus, no basis for objection.
Petitioner’s second objection is OVERRULED.
Third, Petitioner argues that the M&R “inaccurately fail[s] to mention [that the]
April 11, 2007 technical parole violation was rescinded in Petitioner[’s] June 9, 2009
parole order.” D.E. 35, p. 2. Petitioner further asserts that he was not serving any
sentence, was not recommitted to any parole sentence, and was not receiving any

1

The Court assumes that Petitioner intends to refer to D.E. 17-4 instead of D.E. 17-14 because D.E. 17-14
is not a docket entry in the record for this case.

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sentence credit from the state when BOP refused to take him into federal custody. D.E.
35, p. 2.
The Pennsylvania Board of Probation and Parole did in fact rescind its board
action taken April 11, 2007. D.E. 17-4, p. 32. In pointing out this fact, however,
Petitioner does not explain how it calls into question the ultimate conclusion reached in
the M&R. Further, Petitioner does not point to any facts in the record to support his
assertion that he was not serving any sentence, was not recommitted to any parole
sentence, and was not receiving any sentence credit from the state when Pennsylvania
attempted to transfer him to federal custody. In fact, each of these assertions is squarely
refuted by the record. D.E. 17-4, p. 34 (indicating that Petitioner was given 978 days of
“backtime” credit for December 23, 2005, the date of his arrest, to August 27, 2008, the
date he pleaded guilty in federal court); See D.E. 17-4, p. 32-34 (showing that Petitioner
was recommitted to a state correctional institution to serve a 24 month sentence on June
9, 2009) and D.E. 17-4, p. 71 (showing that BOP refused to accept Petitioner into its
custody on August 31, 2009—more than two months after Petitioner was recommitted to
serve his state sentence). Petitioner’s third objection is OVERRULED.
Fourth, Petitioner alleges that the Magistrate Judge failed to address Title 61,
§ 331.21a of Pennsylvania’s Penal and Correctional Institutions Code as well as language
in the June 2009 Notice of Board Decision instructing that Petitioner was to serve his
state sentence “when available pending completion of/release from [his] federal
sentence.” D.E. 17-4, p. 32.

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The Magistrate Judge properly addressed the “when available” provision in the
June 2009 Notice of Board Decision. The M&R acknowledges the “when available”
provision and explains that a subsequent board decision issued on November 23, 2009,
deleted this provision based on BOP’s refusal to accept custody of Petitioner until he had
completed his state sentence. D.E. 32, p. 10.
Petitioner also asserts that the Magistrate Judge failed to address Pennsylvania
statute 61 P.S. § 331.21a.2 Petitioner’s state law complaint is not cognizable through a
petition for habeas relief because it does not allege a violation of “the laws or treaties of
the United States.” See 28 U.S.C. § 2241(c)(3); Stringer v. Williams, 161 F.3d 259, 263
(5th Cir. 1998).
Furthermore, to the extent that Petitioner argues BOP’s refusal to accept him into
its custody is a violation of his constitutional rights, that argument is foreclosed by Fifth
Circuit precedent.

In Leal v. Tombone, 341 F.3d 427 (5th Cir. 2003), the Fifth Circuit

rejected a petitioner’s claim that the U.S. Marshalls were required to comply with a state
trial court’s order that he be delivered into federal custody to serve his sentence. Leal,
341 F.3d at 430. The Court cited Bloomgren v. Belaski, 948 F.2d 688, 691 (10th Cir.
1991) for its conclusion that the determinations made by federal authorities concerning
the execution of federal sentences cannot be overridden by a state court provision. Leal,
341 F.3d at 429. BOP was not under any obligation to comply with a state court’s order,
and no constitutional violation arose from its refusal to take Petitioner into federal

2

Section 331.21a was repealed in 2009 by an act of Pennsylvania legislature. 2009, Aug. 11, P.L. 147,
No. 33, § 11(b).

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custody until he had completed his state sentence.

Petitioner’s fourth objection is

OVERRULED.
Fifth, Petitioner alleges that the Pennsylvania Parole Board’s November 2009
Notice of Board Decision violated his due process rights because it altered and deleted
the previous order by removing the “when available” provision to account for BOP’s
refusal to accept Petitioner into its custody without informing the Petitioner or holding
another parole hearing. D.E. 35, p. 2. Petitioner also alleges that BOP violated a
Pennsylvania statute without authority of law. D.E. 35, p. 2.
The removal of the “when available” provision from the November 2009 Notice of
Board decision did not violate Petitioner’s due process rights. In Morrissey v. Brewer,
the Supreme Court held that a defendant facing revocation of his parole is not owed “the
full panoply of rights” that is owed to a defendant in a criminal prosecution. Morrissey v.
Brewer, 408 U.S. 471, 480 (1972). Acknowledging that parole revocation is not a
deprivation of the “absolute liberty to which every citizen is entitled, but only of the
conditional liberty properly dependent on observance of special parole restrictions,” the
Court held that due process is satisfied in parole revocation matters by “an informal
hearing structured to assure that the finding of a parole violation will be based on verified
facts and that the exercise of discretion will be informed by an accurate knowledge of the
parolee's behavior.” Morrissey, 408 U.S. at 484.
With regard to his parole revocation, Petitioner does not allege that he was denied
an informal hearing to assure that there was probable cause for the finding of a parole
violation, and he does not allege that the exercise of discretion was not informed by
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accurate facts concerning his behavior. Accordingly, he has no basis to claim that his due
process rights were violated.
Petitioner’s argument that BOP’s alleged violation of a Pennsylvania statute
entitles him to habeas relief has already been addressed and overruled in the discussion of
his fourth objection. Petitioner’s fifth objection is OVERRULED.
Sixth, Petitioner argues that the Magistrate Judge erred by not addressing when
Petitioner was returned from federal custody and states that “the Writ of Habeas Corpus
Ad Prosequendum does not remain outstanding to prejudice the petitioner.” The
substance of Petitioner’s objection is unclear, and this Court finds no error in the
Magistrate Judge’s discussion of Petitioner’s transfers between federal and state custody.
Petitioner’s sixth objection is OVERRULED.
In addition to the objections discussed above, Petitioner has filed a motion for
objections (D.E. 38), a motion to amend objections (D.E. 39), and a motion for leave to
file sur-objections (D.E. 40). Petitioner filed two motions for extension of time to file his
objections. D.E. 33 and 36. Both motions were granted. D.E. 34 and 37. In the latest
order granting Petitioner’s motion for extension of time, the Magistrate Judge stated that
the motion for extension of time was granted as to Petitioner’s objections docketed at
D.E. 35, and those objections are addressed herein. However, Petitioner’s first set of
supplemental objections (D.E. 38) “is untimely, was filed without leave of court, and did
not contain an explanation as to why the information in the declaration could not have
been filed along with Petitioner’s original objections within the extended time provided

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for filing objections.”3 The Court therefore does not consider those objections.
Furthermore, the Court DENIES Petitioner’s motion for leave to amend his objections
(D.E. 39) and motion for leave to file sur-objections (D.E. 40) given that (1) Petitioner
was allowed more than a month of additional time to file his objections to the M&R and
(2) Petitioner has not offered any meritorious argument for why he should be allowed
additional time to supplement his pleadings.4
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Petitioner’s objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Petitioner’s objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge. Accordingly, Respondent’s motion for summary
judgment (D.E. 24) is GRANTED and Petitioner’s habeas petition (D.E. 1) is
DISMISSED.

Petitioner’s supplemental objections (D.E. 38) are STRICKEN, and

Petitioner’s motion for leave to amend and motion to supplement his pleadings (D.E. 39
and 40) are DENIED.

3

Knod v. City of Irving, Tex., 2013 WL 6869634, at *1 (N.D. Tex. Dec. 31, 2013).
In his motion for leave to file sur-objections (D.E. 40), Petitioner asks that the Court excuse his failure
to dispute the declaration of Robert Jennings and accept his pleading because “he was just recently
brought aware that this is the reason the Magistrate court recommended to grant the Respondent[’s]
Summary Judgment motion.” D.E. 40, p. 1. Petitioner’s argument is unavailing. Lack of awareness
cannot excuse Petitioner’s inaction in this case because the Magistrate Judge specifically addressed the
fact that there was no dispute as to Mr. Jenning’s declaration in the M&R. D.E. 32, p. 5. Accordingly,
Petitioner should have been aware of this information when he filed his objections to the M&R on March
4, 2014.
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ORDERED this 23rd day of June, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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