United States District Court, District of Columbia
June 17, 2015
DAVID CARMICHAEL, Petitioner,
UNITED STATES PAROLE COMMISSION et al., Respondents.
CHRISTOPHER R. COOPER,
Petitioner David Carmichael is serving a twelve-year sentence in
Maryland state prison for armed robbery. He was arrested for that crime in 2011
while on parole from two District of Columbia Superior Court sentences in the
early 1990s. When the U.S. Parole Commission ("USPC") learned of his arrest and
detention, it served him in prison with a "warrant/detainer" for a parole
violation. Carmichael has petitioned for a writ of mandamus against the Parole
Commission and his present warden to force them to hold a parole revocation
hearing. Because the warrant has not been executed, however, Carmichael is not
entitled to a hearing. The Court will therefore grant the respondents' motion to
dismiss Carmichael's petition.
The Superior Court of the District of Columbia sentenced Carmichael in
May 1991 to five to fifteen years' imprisonment and in April 1992 to fifty-five
years' imprisonment. See Alleged Violation(s) Report (ECF No. 16-2, at 12-14).
Carmichael was released to almost 35 years of parole supervision in May 2010.
Certificate of Parole (ECF No. 16-2, at 9-11). In May 2011, Carmichael was
arrested in Baltimore County, Maryland, and detained at the Baltimore County
Detention Center. He pled guilty in December 2011 to armed robbery and was
sentenced to twelve years' imprisonment. Case Information (ECF No. 16-2, at 27,
28-29). He is currently serving that sentence at the Maryland State Prison in
While in detention in Baltimore County, Carmichael "was served with a
warrant/detainer from the [USPC]" for a parole violation.
Pet. for a Writ of Mandamus at 2 (ECF No. 1). Pursuant to the instructions to
the U.S. Marshal, who is the process server for federal entities, the warrant
was not executed. Rather, the USPC Case Analyst requested that the U.S. Marshall
"[p]lace a detainer and notify the Commission." Sept. 1, 2011 Mem. (ECF No.
16-2, at 22). In September 2014, the USPC, following a review of the detainer,
ordered: "Let the Detainer Stand." Not. of Action (ECF No. 16-2, at 39).
Carmichael has filed a petition for a writ of mandamus, seeking a
hearing where the USPC would have to decide whether to revoke his parole.
Carmichael grounds the request in 28 C.F.R. § 2.215(f), which provides for a
hearing no more than 90 days after a parolee is taken into custody on a warrant
for a supervised release violation. Carmichael claims that the existence of the
unexecuted warrant and detainer is "affecting his eligibility for rehabilitative
programs while in prison on the other offenses." Pet. for a Writ of Mandamus at
II. Legal Standards
A. Motion to Dismiss
Dismissal is warranted if the allegations in Carmichael's petition do
not "contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). In order to survive the USPC's motion to dismiss, Carmichael must
have alleged facts that would entitle him to the requested relief. See
Stokes v. Cross, 327 F.3d 1210, 1215 (D.C. Cir. 2003). Although the Court
must accept the facts pled as true, legal allegations devoid of factual support
are not entitled to this assumption. See Kowal v. MCI Commc'ns Corp.,
16 F.3d 1271, 1276 (D.C. Cir. 1994).
B. Mandamus Relief
A writ of mandamus is an extraordinary remedy available to compel an
"officer or employee of the United States or any agency thereof to perform a
duty owed to the plaintiff." 28 U.S.C. § 1361. "Mandamus may be granted only if
(1) the plaintiff has a clear right to relief; (2) the defendant has a clear
duty to act; and (3) there is no other adequate remedy available to the
plaintiff.'" Thomas v. Holder, 750 F.3d 899, 903 (D.C. Cir. 2014)
(quoting Council of & for the Blind of Del. Cnty. Valley, Inc. v. Regan
, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc)). Carmichael bears a heavy
burden of showing that his right to a writ of mandamus is "clear and
indisputable." In re Cheney, 406 F.3d 723, 729 (D.C. Cir. 2005)
(citation omitted). "[I]t is well settled that a writ of mandamus is not
available to compel discretionary acts." Cox v. Sec'y of Labor, 739
F.Supp. 28, 30 (D.D.C. 1990) (collecting cases).
A parolee facing revocation of his conditional release is accorded due
process protections. Morrissey v. Brewer, 408 U.S. 471, 484-89 (1972).
The question Carmichael's petition poses is when those protections
begin. The Supreme Court has squarely foreclosed his request for an immediate
parole revocation hearing. In Moody v. Daggett, the Supreme Court addressed an
analogous request by a prisoner confined on murder and manslaughter offenses he
committed while on parole for rape. 429 U.S. 78, 80 (1976). The Supreme Court
made clear that "the loss of liberty as a parole violator does not occur until
the parolee is taken into custody under the [violator] warrant." Id. at
87. Because Moody was in prison for the subsequent crimes, not for a parole
violation, he had no right to an immediate hearing to test the grounds for
finding a parole violation. Id. at 86. Carmichael's loss of liberty
likewise is due to his Maryland state convictions. Until the warrant is executed
and he is in custody as a potential parole violator, neither due process, id. at
87, nor the USPC regulations, 28 C.F.R. § 2.215(f), require the USPC to make a
prompt determination whether he violated his supervised release. He is therefore
not entitled to a writ of mandamus.
Moreover, the USPC has satisfied its obligations regarding
Carmichael's detainer by reviewing it in accordance with 18 U.S.C. § 4214(b)(1).
USPC is required to review a lodged detainer "within one hundred and eighty days
of notification... of placement, " id., and it may "(A) let the detainer stand;
or (B) withdraw the detainer, " id. § 4214(b)(3). When the USPC does not conduct
the review "[t]he appropriate remedy... is a writ of mandamus to compel the
Commission's compliance with the statute." Sutherland v. McCall, 709
F.2d 730, 732 (D.C. Cir. 1983) (emphasis omitted). USPC's review of Carmichael's
detainer-albeit well beyond the 180-day statutory window-leaves the Court with
nothing left to consider. See Davis v. United States Parole Comm'n, 47 F.Supp.
3d 64, 67-68 (D.D.C. 2014) ("Now that the Commission has initiated the
procedures called for by [Section 4214(b)(1)], no basis exists for issuing a
writ to compel the same action.").
For the foregoing reasons, the Court concludes that no grounds exist
for issuing a writ of mandamus. Accordingly, this case will be dismissed. A