United States District Court, N.D. Illinois, Eastern Division
October 5, 2005.
MARK W. SCHMANKE #02055-027, Petitioner,
SILAS IRVINS, Warden, Metropolitan Correctional Center,[fn1] Respondent.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
*fn1 All further references to Title 28's provisions will simply
take the form "Section ____."
This Court has inherited, via reassignment from the calendar of
its colleague Honorable George Marovich, the latest proceeding in
the extraordinarily extended and convoluted path that Mark
Schmanke has traveled through the federal criminal justice system
(see the recounting of Schmanke's Odysseus-like travels in Ex. 1,
the "Background" section of the government's just-filed response
to Schmanke's current motion for reconsideration of an order
entered by Judge Marovich). As the "Argument" section of the same
response reflects, on June 24 of this year Judge Marovich had
dismissed Schmanke's then-pending petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241*fn2 not "for lack of
personal jurisdiction," as the government's response has
asserted, but rather because of Schmanke's noncompliance with
Section 2244(a). After having entered that dismissal order, on
August 29 Judge Marovich granted Schmanke's motion for reconsideration, and on September 7 Judge Marovich caused the
case to be reassigned to this Court's calendar.
At this point the government has agreed that Judge Marovich's
order of dismissal was in conflict with our Court of Appeals'
decision in Valona v. United States, 138 F.3d 693 (7th Cir.
1998), so that Schmanke's arguments in support of his Section
2241 petition must instead be dealt with on the merits. But
having so stated, the response filed by government counsel has
correctly dispatched each of Schmanke's claims in the space of
four well-reasoned pages. As the response reflects, one aspect of
the United States Parole Commission's actions*fn3 failed to
comply with the Parole Commission's obligations: It failed to
conduct a review of Schmanke's case, as called for by
18 U.S.C. § 4211(b), within two years after his parole release to determine
the need or lack of need for continued supervision. But even in
that regard, Schmanke's argument fails because of the absence of
any showing of prejudice from that omission (Sacasas v. Rison,
755 F.2d 1533, 1535 (11th Cir. 1985) (per curiam)).
In all other respects, Schmanke's contentions are simply wrong
and do not call for habeas relief. It is really unnecessary to
restate the grounds for that determination, which are fully and accurately set out in the government's responsive
Accordingly, although Schmanke's motion for reconsideration is
granted, his Section 2241 petition is dismissed on grounds
different from the basis relied upon by Judge Marovich. This
action is dismissed as well. RESPONDENT'S RESPONSE TO PETITIONER'S MOTION TO RECONSIDER HABEAS
The United States of America, by Patrick J. Fitzgerald, United
States Attorney for the Northern District of Illinois, on behalf
of the United States Parole Commission, responds to petitioner's
motion to reconsider habeas corpus petition, as follows:
In 1988, petitioner Mark W. Schmanke received a 20-year prison
sentence from the District Court for the Northern District of
Indiana for conspiracy, transmitting altered U.S. Postal money
orders with intent to defraud, mail fraud, and wire fraud. He
committed these crimes from March 1982 to December 1983. Exhibit
A. As this court has noted in a previous decision on a habeas
petition filed by Schmanke, he was originally paroled in 1996,
but that parole was revoked in 1998 on charges of leaving the
district of supervision without permission, associating with a
person having a criminal record, using marijuana, and driving under the
influence of alcohol.*fn4
Schmanke was reparoled on December 3, 1999. His probation
officer reported that on March 14, 2001, Schmanke was arrested
after having caused a traffic accident. Exhibit B. On April 3,
2001, his probation officer recommended that the Parole
Commission issue a warrant for his arrest. On May 31, 2001,
Schmanke's probation officer sent to the Parole Commission a
stipulated plea agreement whereby Schmanke pleaded guilty to
reckless driving and agreed to a sentence of a $500 suspended
fine, a 180-day suspended jail term, and 6 months probation.
The Commission issued a warrant for Schmanke on July 31, 2001.
The warrant contained two charges. The first described a series
of law violations which included leaving the scene of an
accident, driving while intoxicated, assault with a deadly weapon
and possession of marijuana. The second was the law violation of
reckless driving. Exhibit D.
Schmanke voluntarily surrendered to custody on the Commission's
warrant on August 13, 2001, and received a preliminary interview
from the U.S. Probation Office two days later. The interviewing
officer recommended probable cause on both charges. Exhibit E.
On November 29, 2001, Schmanke received his revocation hearing
at the Federal Transfer Center, Oklahoma City, Oklahoma. At the
hearing, Schmanke admitted the charge of reckless driving but
attempted to minimize the seriousness of the incident. The
examiner was troubled by Schmanke's attitude, and ". . . took the
time to explain to the subject the seriousness of his behavior
and the responsibility he has to the community. . . ." After
doing so, the hearing examiner concluded that Schmanke still did
not understand the seriousness of his repeatedly abusing drugs and alcohol and driving at the same time. Exhibit F at 3.
On December 20, 2001, the Commission issued its decision, which
was to revoke Schmanke's parole, forfeit all of the time Schmanke
had spent on parole, and to continue Schmanke to a presumptive
parole after the service of 16 months (on December 13, 2002).
This decision was within a guideline range of 12-16 months
applicable to Schmanke. Exhibit G. Schmanke took an
administrative appeal, arguing that the revocation of his parole
was a form of "double jeopardy" because the Commission had
already punished him by imposing an alcohol treatment condition
immediately following the reckless driving episode. In a decision
dated February 13, 2002 the Commission denied Schmanke's appeal
and rejected his claims that the Commission improperly denied him
credit for time spent on parole and that the forfeiture of this
time violated the Eighth Amendment ban against cruel and unusual
punishment. Exhibit H.
Schmanke filed two habeas petitions challenging the decisions
resulting from his 2001 revocation hearing. In each case, he was
denied relief. In Schmanke v. Hemingway, No. 02-CV-40028-FL
(E.D. Mich., Sept. 30, 2002), the court denied Schmanke's claims
that the Commission had violated the double jeopardy ban and due
process, or otherwise acted in an arbitrary and capricious manner
in revoking his parole. The court also found that the Commission
had properly applied statutory law in denying Schmanke credit for
time he had spent on parole. Exhibit I. In Schmanke v. U.S.
Parole Commission, No. 2:02cv 384RM (N.D.Ind., January 22,
2003), the court denied Schmanke's claim that the Parole
Commission did not have a rational basis to impose a special
condition of parole that prohibited him from driving a vehicle
and possessing a driver's license. Exhibit J. The court also
noted that, to the extent Schmanke challenged the fundamental
fairness of the Commission's 2001 revocation proceeding, the
claim was barred as a successive petition under 28 U.S.C. § 2244(a).
Schmanke was reparoled on December 13, 2002, to remain under
supervision until February 3, 2009. Exhibit K. On September 23,
2003, the Commission ordered Schmanke to reside in a community
corrections center for a period of 70 days and participate in a
drug/alcohol treatment program, after receiving a report from his
probation officer that he had been arrested on September 6, 2003,
for operating a vehicle while intoxicated. Exhibits L and M.
On February 25, 2005, Schmanke's probation officer requested
that the Commission issue a violator warrant for Schmanke after
he had been arrested two days earlier and charged with hit and
run, resisting arrest, recklessness, and operating a vehicle
while intoxicated. Exhibit N. The Commission issued the warrant
on March 4, 2005. Exhibits O and P. Schmanke was arrested on the
warrant on March 29, 2005. Exhibit Q.
On May 11, 2005, the Commission issued a supplemental warrant
application adding the charge that Schmanke had operated a
vehicle while intoxicated on September 6, 2003. Exhibit R. The
charge noted that Schmanke had been convicted of this offense on
November 23, 2003, and sentenced to one-year probation. In the
meantime, on April 7, 2005 and May 5, 2005, Schmanke requested a
postponement of the preliminary interview to determine if
probable cause existed for the alleged violations. Exhibit S.
On June 30, 2005, a Commission hearing examiner conducted a
combined preliminary interview and local revocation hearing for
Schmanke at the Metropolitan Correctional Center in Chicago.
Exhibit T. By a notice of action dated July 19, 2005, the
Commission informed Schmanke of its decisions: (1) revoke parole;
(2) none of the time spent on parole shall be credited; and (3)
continue to a presumptive reparole after the service of 20 months
(November 29, 2006). Exhibit U. Through appointed counsel, Schmanke appealed these decisions to
the Commission's National Appeals Board on August 3, 2005.
Exhibit V. Thereafter, on August 18, 2005, Schmanke supplemented
his appeal with additional grounds. Exhibit W. A ruling on
Schmanke's appeal is expected in mid-October 2005.
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