United States District Court, D. Columbia
September 2, 2005.
JESÚS BAZAN, Petitioner,
UNITED STATES PAROLE COMMISSION, Respondent.
The opinion of the court was delivered by: HENRY KENNEDY, District Judge
This matter is before the Court on consideration of
petitioner's petition for a writ of mandamus.*fn1 For the
reasons set forth below, the Court will deny the petition.
Petitioner, having reached his mandatory release date, was
released from custody on August 4, 1997. Resp't Mot., Ex. B
(Certificate of Mandatory Release to Special Parole). He was to
remain under the jurisdiction of the United States Parole
Commission ("Parole Commission") until his 25-year special parole
term began on December 7, 2004. Id.
Petitioner was arrested on March 5, 2002 by United States
Customs Service agents for possession of cocaine, among other
offenses, and failed to inform his probation officer of his
arrest. Resp't Mot., Ex. C (Violation Report and Criminal
Complaint). The Parole Commission issued a parole violator warrant on April 8, 2002. Id., Ex. D
(Warrant Application and Warrant); Pet. at 2. Petitioner was in
custody at that time, and the warrant was lodged as a detainer.
Pet. at 2. Petitioner plead guilty to one count of conspiracy to
possess with intent to distribute five or more kilograms of
cocaine, and now is serving a sentence of 168 months'
imprisonment. Pet. at 3; see Resp't Mot., Ex. E (Judgment in
Criminal Case No. 02-CR-00187-002).
The Parole Commission conducted an on-the-record review of the
detainer on July 9, 2004. Resp't Mot., Ex. I (Dispositional
Review Order). It determined that the detainer should stand.
Id., Ex. J (Notice of Action dated July 9, 2004).
In this action, petitioner seeks a writ of mandamus compelling
the Parole Commission to conduct a parole revocation hearing now,
so that he might "have his revoked time ? served with his
present term of imprisonment." Pet. at 12. In other words, upon
the anticipated revocation of his parole, petitioner wants time
served on the current sentence credited also towards any term
imposed for the parole violations.
Mandamus is a drastic remedy to be invoked only in
extraordinary situations. Chatman-Bey v. Thornburgh,
864 F.2d 804, 806 n. 2 (1988). It is granted only when essential to the
interests of justice. Starnes v. McGuire, 512 F.2d 918, 929
(D.C. Cir. 1974). Mandamus is available only if: "(1) the
plaintiff has a clear right to relief; (2) that defendant has a
clear duty to act; and (3) there is no other adequate remedy
available to plaintiff." Northern States Power Co. v. United
States Dep't of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997). The
party seeking mandamus has the "burden of showing that its right
to issuance of the writ is `clear and indisputable.'" Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988) (citing Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384
(1953)). Petitioner does not meet his burden.
Petitioner cannot establish a clear right to relief or
respondent's clear duty to act. A parolee must be accorded due
process before his parole is revoked. Morrissey v. Brewer,
408 U.S. 471 (1972). Among other things, he is entitled to written
notice of the claimed violation of parole and an opportunity to
be heard on the matter. Id. at 489. However, a parolee against
whom a warrant is lodged as a detainer is not entitled to an
immediate revocation hearing. Moody v. Daggett, 429 U.S. 78
(1976) (parolee imprisoned for a crime committed while on parole
not entitled constitutionally to immediate revocation hearing
when warrant is issued and lodged as a detainer with the
institution of his confinement). Rather, the Parole Commission
may delay consideration of petitioner's case "until he is taken
into custody as a parole violator by execution of the warrant."
Id. at 87.
The Court concludes that petitioner fails to meet his heavy
burden, and, accordingly, his petition for a writ of mandamus
will be denied. An Order consistent with this Memorandum Opinion
will be issued separately on this same date.
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