The Petitioner's lawyer wrote to the Commission on August 22, 2001, in an effort to resolve the merits of the June 6, 2000, parole violator warrant. The Commission never responded to that letter or Petitioner's September 18, 2001, request for a revocation hearing.
On October 4, 2001, the Court sentenced the Petitioner to 324 months in prison for the bank robbery, etc. that he committed in Harvel. See United States v. Maisenbacher, 00-30046 (C.D.Ill. 2000). Once incarcerated, the Petitioner received two documents from the Commission. The first document, dated November 20, 2001, stated that the Petitioner was under a detainer for alleged parole violations.
The second document, dated March 24, 2001, stated that the Petitioner was released from the custody of the parole violator warrant and that the warrant was to be held as a detainer against the federal charges arising from the Harvel bank robbery. According to the Commission's March 24 letter, it was taking this action because the June 6 parole violator warrant "was executed contrary to instructions as there was a new criminal warrant."
The Petitioner filed the instant Petition for Writs of Habeas Corpus and Mandamus on September 23, 2002. In essence, his petition asserts that since the Commission's parole violator warrant was executed by the Marshal's Service on June 22, the Commission was required to conduct a parole revocation hearing within ninety days of that date. Because the Commission did not conduct a revocation hearing within ninety days of the warrant's June 22 execution, the Petitioner contends that he has been denied his right to a timely parole revocation hearing. He asks the Court to order the Commission to release him from its detainer and/or to vacate the parole hold it has placed on him.
When a federal prisoner challenges conditions of his confinement which do not stem from his original conviction or sentence, he must bring suit under 28 U.S.C. § 2241. See Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000). Here, the Petitioner is contesting the Commission's refusal to hold a revocation hearing and its decision to impose a detainer in case 86-CR-30012. These actions do not relate to the Petitioner's original conviction or sentence in the instant case, 00-CR-30046. Thus, the Petitioner can properly seek habeas relief under § 2241.
In order to obtain habeas relief, however, the Petitioner must show that the Parole Commission deprived him of a federal right. The Petitioner attempts to make this showing by arguing that the Parole Commission: (1) failed to provide him with a timely revocation hearing; and (2) unlawfully imposed a detainer.
By law, the Parole Commission must conduct a parole revocation hearing within ninety days of the date it retakes a parolee via the execution of a parole violator warrant. See Barnard v. Henman, 89 F.3d 373, 377 (7th Cir. 1996) (discussing 18 U.S.C. § 4214(b)(1)); see also Thompson v. Crabtree, 82 F.3d 312, 314 (9th Cir. 1996). "However, only valid execution of the parole violator warrant triggers the commission's procedural responsibilities." See Barnard, 89 F.3d at 377 (citation omitted) (emphasis in original).
"[T]he Parole Commission alone has the power to choose whether to order that a parole violator warrant be executed or filed as a detainer." See id. (quoting McConnell v. Martin, 896 F.2d 441, 445-46 (10th Cir. 1990). Thus, if the Marshal's Service executes a parole violator warrant contrary to the Commission's instructions, the warrant is invalid and the Commission's duty to conduct a revocation hearing does not begin to run. See id. (citing McConnell, 896 F.2d at 446).
In the instant case, the Commission asserted in its March 24, 2001, correspondence that the June 6, 2000, warrant was executed contrary to instructions as there was a new criminal warrant." The Petitioner correctly observes that this statement is inaccurate. There was never a new criminal warrant issued for the Petitioner. Police arrested the Petitioner while they were in hot pursuit of him for bank robbery.
If the Commission's instructions to the Marshal's Service was limited to the existence of a new criminal warrant, the Petitioner might have a valid habeas claim.
Unfortunately for him, however, the Commission explicitly stated another condition whose existence prohibited the Marshal's Service from executing the June 6 warrant. This other condition stated that the United States Marshal's Service was not to execute the June 6 warrant if the Petitioner was "already in the custody of a federal or state authority." Because the Petitioner was already in police custody at the time the Marshal's Service executed the June 6 parole violator warrant, the Court finds that the Marshal's execution of that warrant was invalid. Accordingly, the Commission was under no duty to conduct a revocation hearing.
Furthermore, the Commission has acted lawfully by using the June 6 parole violator warrant as a detainer and delaying its execution. As the Seventh Circuit noted in Barnard, "if a warrant was invalidly executed, the Commission may subsequently utilize the same warrant as a detainer." See id. at n. 8 (citing Chandler v. Barncastle, 919 F.2d 23, 26-27 (5th Cir. 1990). The Commission "can issue a warrant and place it as a detainer against [a] prisoner, waiting to execute it until [a] prisoner has completed service of his sentence for the crime that he committed on parole." See id. at n. 8 (citing Tijerina v. Thornburgh, 884 F.2d 861, 865-66 (5th Cir. 1989). This is exactly what the Commission has done here, and these actions are lawful.*fn1
Ergo, Petitioner Steven W. Maisenbacher's Petition for Writs of Habeas Corpus and Mandamus (d/e 28) is DENIED.
IT IS SO ORDERED.