United States District Court, S.D. Illinois
GEORGE H. EDWARDS, JR., Petitioner,
JAMES CROSS, Warden, and U.S. PAROLE COMMISSION, Respondents.
MEMORANDUM AND ORDER
DAVID R. HERNDON, Chief District Judge.
This matter involves two separate cases brought by petitioner George Edwards, Jr. that have been consolidated, 13-934 and 13-944. Petitioner filed a petition for Writ of Mandamus under 28 U.S.C. § 1361 seeking an Order compelling the U.S. Parole Commission ("Parole Commission") to conduct a termination hearing and, until then, terminating his parole violation status and suspending his supervision (13-934). Petitioner also filed a petition for writ of habeas corpus pursuant to 29 U.S.C. § 2241 requesting an order requiring James Cross ("Cross") to convert his special parole term ("SPT") to a regular term of imprisonment and to hold a hearing on his third parole violation or, in the alternative, terminating his SPT and releasing him from all conditions of parole (13-944).
Petitioner was sentenced in 1985 to fifteen years in federal prison, followed by a 10-year SPT, for distribution of cocaine in violation of 21 U.S.C. § 841(a)(1) (Case No. 13-934 Doc. 1-1 at 1). Petitioner's regular prison term expired on February 9, 2000, and his SPT commenced immediately thereafter.
Petitioner violated his SPT on July 26, 2001. Petitioner's parole was revoked and he was informed that none of the time he spent on SPT would be credited. At that time, the Parole Commission ordered an addition 9 months imprisonment and additional parole following petitioner's release (Case No. 13-934 Doc. 19 Ex. F). On December 7, 2001, petitioner was re-paroled for a period up to and including March 1, 2011 (Case No. 13-934 Doc 19 Ex. G).
On July 6, 2007, petitioner was sentenced for wire fraud to a term of 12 months and one day in the custody of the Bureau of Prisons to be followed by a 4-year term of supervised release. United States v. Edwards, No. 4:07-cr-00051-CDP-1 (E.D. Mo. 2007).
Petitioner's parole was subsequently revoked. Per the Parole Commission's Notice of Action dated April 14, 2008, petitioner was informed that his special parole was revoked and that because of his parole violations he would not receive credit for any of the time spent on special parole. The Parole Commission also continued his special parole to a presumptive re-parole date of November 21, 2009 (Case No. 13-934 Doc. 19 Ex. K).
As a result of a July 2009 court order, petitioner received a separate hearing to consider whether continued supervision was warranted. See Edwards v. U.S. Parole Comm'n, No. 8-301-KSF (E.D. Ky. 2008). The Parole Commission concluded that additional supervision was indeed warranted (Case No. 13-934 Doc. 19 Ex. I).
On January 20, 2010, petitioner was again paroled for a period to last until February 27, 2017 (Case No. 13-934 Doc. 19 Ex. L). On February 21, 2012, U.S. Probation Officer Wactor submitted a Supervision Report recommending continued supervision (Case No. 13-934 Doc. 19 Ex. M). The Parole Commission thereafter conducted a review and determined to continue supervision.
In his January 31, 2014 report, however, Probation Officer Wactor indicated that petitioner had violated his parole and had been arrested for violating the conditions of his supervised release.
On February 8, 2013, petitioner's supervised release was revoked and he was sentenced to 24 months imprisonment. See United States v. Edwards, No. 10-30216 (S.D. Ill. 2013). Petitioner's anticipated release date is October 27, 2014. The Parole Commission has placed its warrant as a detainer pending the competition of his sentence.
III. Petition for Writ of Mandamus
In case number 13-934, petitioner seeks a writ of mandamus compelling the Parole Commission to perform a parole termination hearing pursuant to 18 U.S.C. § 4211(c)(1). He asserts that he has been on parole more than 11 years and the Parole Commission has only conducted one hearing pursuant to Section 4211(c). He argues that if he had been afforded such a hearing, he may not have been on parole in January 2013 when he was violated.
The Government asserts that petitioner is not entitled to a writ of mandamus. Specifically, the Government argues that "[p]etitioner does not have a clear right to the remedy he seeks because his is not entitled to a hearing for consideration for early termination of his parole until he has been on 5 continuous years of parole supervision" (Case No. 13-934 Doc. 19 at 3). The Government asserts that petitioner was released on parole in January 2010 and he is not entitled to a parole termination hearing until January 2015. The Government also denies petitioner's suggestion that his parole term runs while he is incarcerated. Furthermore, the Government argues that even if a hearing was not timely conducted, petitioner's parole is not automatically terminated as the statue only requires the hearing. Finally, the Government asserts that petitioner's claim that ...