The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge J. Phil Gilbert pursuant to 28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on the Petition for a Writ of Habeas Corpus, filed by the Cuba Eugene Hopson ("Petitioner") on March 16, 2006 (Doc. 1), and the Motion for Summary Judgment, filed by Petitioner on August 31, 2006 (Doc. 14). For the reasons set forth below, it is RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED,that Petitioner's Motion for Summary Judgment (Doc. 14) be DENIED AS MOOT, that this case be DISMISSED, and that the Court adopt the following findings of fact and conclusions of law:
Petitioner filed a 28 U.S.C. § 2241 petition for a writ of habeas corpus, which was signed under penalty of perjury and supported with a memorandum of law (Doc. 1). Respondent Larry Spender*fn1 ("Respondent") timely filed a response brief to which Petitioner replied (Doc. 6, 7).
Thereafter, Petitioner filed a Motion for Summary Judgment (Doc. 14), to which Respondent filed a response (Doc. 16). The Court will first address the Petition itself, rendering the Motion for Summary Judgment moot.
Petitioner states in his petition that the "facts are akin and laid out on Case No. 04-cv-604-JPG, filed on August 27, 2004." (Doc 1-2 at 3). The facts as determined by the Court in that case reproduced below:
Hopson is in federal custody on a 1988 conviction imposed by District Court of the Northern District of Illinois on charges relating to interstate transportation of stolen motor vehicles.*fn2 The respondent maintains that Hopson is properly confined pursuant to the Parole Commission's order revoking Hopson's parole. Hopson maintains that the Parole Commission should have terminated his parole and that the decision to revoke his parole violates due process. He seeks an evidentiary hearing to resolve factual disputes. Because the Court finds no dispute in the material facts, an evidentiary hearing was not held.
In 1988, Hopson was sentenced by the U.S. District Court for the Northern District of Illinois in Case No. 88-CR-400. He was ordered to serve a term of imprisonment on Count I and was further ordered to serve consecutive terms of probation on Counts II and III. Hopson started serving his prison sentence in March, 1989, and was later released to serve his probation. In September, 1993, after numerous stolen vehicles were found in Hopson's garage, the government sought a rule to show cause why Hopson's probation should not be revoked. Following a hearing, the District Court found that Hopson had violated the terms of his probation. Hopson's probation on Counts II and III was revoked and he was ordered to serve ten years in prison on Count III and a consecutive term of five years of probation on Count II. On appeal, the revocation of probation was affirmed and the case was remanded for clarification regarding the ten-year prison sentence. The District Court clarified the sentence, which was affirmed on appeal. United States v. Hopson, No. 95-2010 (7th Cir. June 19, 1996).
Hopson was released on parole on January 20, 1997. At that time, he had a total of 2,433days remaining to be served on the ten-year prison sentence imposed on Count III. Hopson signed a certificate of parole listing the usual conditions of release, along with a requirement that he remain within the limits of the Northern District of Illinois until September 19, 2003 (Doc. No. 15, Ex. B).
In 2000, Hopson filed a motion to modify the terms of his probation. The government's response led Hopson to believe that he had served his ten-year term of imprisonment and was then serving his term of probation. In November, 2001, Hopson reviewed his records with his parole officer, who could not locate Hopson's certificate of parole. Hopson signed another parole certificate at the parole officer's request.
In March, 2002, a parole violator's report was submitted to the U.S. Parole Commission. In July, 2002, the Commission issued a parole violator's warrant, accusing Hopson of violating the conditions of his release by failing to report in March, 2002, and by failing to report his change of residence in May, 2002. When Hopson learned that the warrant had been issued, he surrendered to the U.S. Marshal on August 9, 2002. The parole violator's warrant was supplemented on September 5, 2005. The additional charges alleged that Hopson left the Northern District of Illinois without permission, acted as an informant for a law enforcement agency, falsified monthly supervision reports, possessed (with intent to distribute) marijuana, failed to report an arrest, failed to report a change in employment, possessed (with intent to distribute) cocaine, associated with a person having a criminal record, and drove under the influence of alcohol.
A preliminary hearing was conducted in stages on September 11 and 12, 2002. Hopson admitted some of the charged violations and contested other charged violations. Although Hopson requested a local revocation hearing, he was transported to FCI-Memphis on October 9, 2002. Meanwhile, Hopson challenged the Parole Commission's decision to issue a violator's warrant under the Administrative Procedure Act in U.S. District Court for the Northern District of Illinois. On October 23, 2002, the District Court granted relief in part, finding that the Parole Commission failed to conduct a timely review hearing and that Hopson's probation expired by its own terms on January 20, 2002. The order directed that Hopson be immediately released from custody. Hopson was not released. On November 18, 2002, the District Court reconsidered the October 23, 2002, order. The Court found that the Parole Commission had jurisdiction over Hopson when the warrant was issued and that the Commission was entitled to proceed with a revocation hearing. The Court vacated the order directing Hopson's immediate release. Hopson appealed that decision. A combined 5-year termination/revocation hearing was scheduled for December 4, 2002. That hearing was continued at Hopson's request. The combined 5-year termination/revocation hearing was conducted on March 7, 2003. On March 20, 2003, the Commission ordered that Hopson would continue under supervision, based on a finding that serious violations of his conditions of release reflected a likelihood that he would engage in new criminal conduct. The Commission proceeded to revoke Hopson's parole, finding that he violated the terms of his release on nine (of ten) charges. The findings were based on Hopson's admissions, information provided by Hopson's parole officer, information developed during a Drug Enforcement Agency investigation, arrest records, and court records showing that Hopson was convicted of driving under the influence in 1998. Hopson was ordered to continue serving his sentence of imprisonment to expiration.
On May 3, 2003, the Court of Appeals dismissed Hopson's appeal from the order denying relief under the Administrative Procedure Act for lack of prosecution. On July 15, 2003, Hopson appealed the Parole Commission's decision, asserting due process violations. He challenged his transfer to FCI-Memphis; the timing and adequacy of parole hearings, supervision, and instruction; and argued that the Commission lost its jurisdiction. On September 10, 2003, the National Appeals Board affirmed the Parole Commission's decision. The Board determined that the Commission retained jurisdiction to conduct termination and revocation proceedings, that Hopson had no due process right to a review of his parole status, and that the delay in conducting a 5-year termination hearing was not prejudicial. (Doc. 39 in case 04-cv-604-JPG)
Petitioner now argues it is now permissible for him to raise his argument that the Parole Commission was without jurisdiction to forfeit his "street time" because, although the district court previously held that he had waived this argument due to his failure to exhaust his administrative remedies, this was not a "final judgment" ...