United States District Court, D. Columbia.
DANIEL ERWIN DAVIS, Petitioner, Pro se, SANDSTONE, MN.
For UNITED STATES PAROLE COMMISSION, Respondent: Sherri Lee Berthrong, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.
AMY BERMAN JACKSON, United States District Judge.
Petitioner is a prisoner at the Federal Correctional Institution in Sandstone, Minnesota. He seeks a writ of mandamus to compel the United States Parole Commission (" the Commission" ), as the supervising authority over federal parolees, to conduct a parole revocation hearing on an unexecuted parole violator warrant. Since petitioner is not entitled to the requested relief, and the Commission has taken steps to provide the proper relief, the Court will deny the petition and dismiss the case.
On September 24, 1985, the United States District Court for the District of Colorado sentenced petitioner to an aggregate prison sentence of 8 years, 6 months. See Resp't's Ex. A. Petitioner was released to parole supervision in South Dakota on September 25, 1990, with a sentence expiration date of April 25, 1994. Ex. B. On March 4, 1994, the Commission issued a parole violator warrant, charging petitioner with, among other violations, a law violation due to his arrest on February 24, 1994, in South Dakota and resulting state charges of conspiracy to distribute a controlled substance and distribution of a
controlled substance. Ex. C. The Commission's warrant was forwarded to the United States Marshals Service in the District of South Dakota with instructions that it be held in abeyance pending further instructions. In an accompanying Memorandum, the Commission highlighted the fact that petitioner was " awaiting trial or sentencing on new charges" and instructed that the Marshals Service " not execute the warrant if the parolee is released on bond" and that it not file a detainer. Id. On April 28, 1994, petitioner was released on bond, but his bond was forfeited when he failed to appear for a motion hearing on May 5, 1994. See Ex. D.
On June 18, 1998, petitioner was indicted in the United States District Court for the District of South Dakota for the same conduct underlying the state drug charges, see Ex. E, and an arrest warrant was issued on June 22, 1998, Ex. F. By then, petitioner " had absconded from his parole jurisdiction," Pet. at 3, and was not arrested on the federal court's warrant until March or April 2007 when he " was retaken in Venezuela." Id.; Resp't's Exs. G, G-1. On May 22, 2007, the Commission informed the Marshals Service in South Dakota that petitioner was " awaiting trial and sentencing on new charges" and provided updated instructions with regard to the March 1994 parole violator warrant to " place a detainer and assume custody when released." Resp't's Ex. H.
Petitioner pleaded guilty in the federal case and was sentenced on September 10, 2008, to his current sentence of 120 months' imprisonment and three years' supervised release. Ex. I. The Commission supplemented the parole violator warrant on April 27, 2009, to reflect the latter conviction, Ex. C., and has lodged the parole violator warrant with petitioner's institution as a detainer. See Ex. A at 1, 4.
Petitioner commenced this mandamus action in March 2013 to compel a hearing under 18 U.S.C. § 4214(c) (1976) (repealed 1984). The Commission filed its response to the court's show cause order on October 30, 2013, and the petitioner filed his reply on January 9, 2014. Meanwhile, in September 2013, the Commission informed petitioner's warden of its decision to conduct a dispositional review of the detainer (to determine whether or not it should remain lodged) and provided a form for petitioner's response and a form for petitioner to request the assistance of appointed counsel. Resp't's Ex. J. Neither party has supplied an update of that proceeding.
The extraordinary remedy of a writ of mandamus is available to compel an " officer or employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28 U.S.C. § 1361. The petitioner bears a heavy burden of showing that his right to a writ of mandamus is " clear and indisputable" and such relief " is hardly ever granted." In re Cheney,406 F.3d 723, 729, 365 U.S. App.D.C. 387 (D.C. Cir. 2005) (citation omitted). " [E]ven if the ...