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Blazavich v. Tapia

June 2, 2006

DANIEL BLAZAVICH, PETITIONER,
v.
ROBERT TAPIA, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge James L. Graham

Magistrate Judge King

OPINION AND ORDER

This matter is before the Court on the Petition for Writ of Habeas Corpus of Petitioner Daniel Blazevich ("Petition"). Doc. No. 2. In the Petition, filed under 28 U.S.C. § 2241, Petitioner challenges his continued supervision by the United States Parole Commission ("USPC"), alleging that he has served his sentence in its entirety and he was not accorded a parole revocation hearing for six and one-half months after his arrest by the USPC. Id. at 3. For the reasons set forth below, the Petition is CONDITIONALLY GRANTED.

I. FACTS

Many of the facts of the case are undisputed. However, the parties disagree in certain significant respects, which the Court will note in is recitation of the facts.

On August 29, 1988, the United States District Court for the Southern District of West Virginia sentenced Petitioner to nine years imprisonment followed by five years special parole. Petition, at ¶ 2; Response to Petition for Writ of Habeas Corpus ("Response"), Exhibit A,*fn1 Bureau of Prisons Sentence Monitoring Computation Data, at 5.

On October 27, 1993, Petitioner was paroled for the remainder of his original nine year sentence. Petition, ¶ 3; Exhibit B, 1993 Certificate of Parole. At that time, Petitioner had served 1885 days; 1340 days of the original nine year term of imprisonment remained, expected to end on June 28, 1997, when he would commence the five year term of special parole. Exhibit B. Petitioner takes the position, however, that, when he was paroled on October 27, 1993, he was paroled immediately to his five year term of special parole. Petition, at 2 fn.1.

On October 13, 1995, Petitioner was arrested pursuant to a warrant for violations of parole arising out of his conviction on two counts of trafficking in drugs in Washington County, Ohio. Exhibit A, at 3. At that time, Petitioner had served 716 days of the remaining 1340 days of his original nine year sentence.

On July 15, 1996, the USPC revoked Petitioner's parole and forfeited the 716 days that he had spent on parole pursuant to 18 U.S.C. § 4210(b)(2). Exhibit C, 1996 Notice of Action. That forfeiture was effective based on 28 C.F.R. § 2.52(c)(2).*fn2 That is, a parolee who has been convicted of a crime automatically forfeits the time previously spent on parole. Petitioner, however, appears to contend that the 716 days were forfeited pursuant to the special parole statute, 21 U.S.C. § 841(c), and that he was not reparoled until April 2000. Petition, at 2 fn.1.

Petitioner was reparoled on December 24, 1996, after he had served 16 months in prison. Exhibit D, 1996 Certificate of Parole. The Bureau of Prisons recomputed the expiration of Petitioner's original nine year sentence to June 13, 1999, i.e., the date the warrant for violation of parole was executed,*fn3 (October 13, 1995), plus the 1340 days remaining on the nine year sentence. Exhibit A, at 4.

On June 13, 1999, Petitioner successfully completed his nine year sentence while on parole and, on the following day, began his five year term of special parole, which was to expire on June 13, 2004. Exhibit E, 1999 Certificate of Special Parole.

On March 29, 2004, a warrant was issued charging Petitioner with violations of special parole, Exhibit F, 2004 Warrant, i.e., use of drugs and violation of the special drug aftercare conditions, Exhibit G, Warrant Application. That warrant was executed on April 14, 2004, after Petitioner had completed 1766 days, or four years 10 months, of his five year term of special parole. Exhibit A, at 2.

On May 24, 2004, Petitioner accepted an expedited revocation proposal. Exhibit H, Notice of Eligibility for Expedited Revocation Procedure; 28 C.F.R. § 2.66. By Petitioner's acceptance of this offer, he accepted responsibility for his violations, waived his right to a revocation hearing, and consented to the sanction proposed by the USPC. Exhibit H, at 2.

On June 19, 2004, the USPC revoked Petitioner's special parole term, forfeiting the 1766 days he had spent on special parole pursuant to 21 U.S.C. § 841(c). Exhibit I, Expedited Revocation Notice of Action; Exhibit A, at 2. Thus, the Bureau of Prisons recomputed the expiration of Petitioner's five year term of special parole to April 13, 2009, i.e., the date of execution of the warrant for violation of special parole, (April 14, 2004), plus the entire five year special parole term. Exhibit A, at 2.

On October 14, 2004, Petitioner was released from prison for the third time. Exhibit J, 2004 Certificate of Parole. Petitioner takes the position that he was released to traditional parole at this point; the government contends that Petitioner was released, for the second time, to special parole. Id.

On September 8, 2005, the USPC issued yet another warrant, Exhibit K, 2005 Warrant, charging Petitioner with violating conditions of special parole by using drugs, failing to yield at a stop sign and committing a theft offense, Exhibit L, 2005 Warrant Application. On September 20, 2005, the warrant was executed. Exhibit M, Warrant Execution Documentation. At that time, Petitioner had served 524 days, or one year, five months and six days, on parole.

On October 12, 2005, the United States Probation Office conducted a preliminary interview to determine probable cause. Exhibit N, Summary Report of Preliminary Interview. On December 9, 2005, the USPC found probable cause to believe that Petitioner had violated the conditions of his special parole term. Exhibit O, Probable Cause Worksheet, at 3.

The USPC scheduled Petitioner's revocation hearing for January 13, 2006. Exhibit P, E-Mail Correspondence, at 2. The USPC rescheduled the hearing after it was unsuccessful in contacting Petitioner's attorney concerning the hearing and after it was informed that Petitioner had retained a new attorney. Id.

On March 14, 2006, the USPC notified Petitioner's newly retained attorney that the revocation hearing had been rescheduled for March 31, 2006. Exhibit Q, Scheduling Notes. On March 16, 2006, Petitioner's attorney contacted the USPC indicating that he would be unavailable on March 31, 2006, offering several alternative dates. Exhibit R, Facsimile Correspondence. The parties agreed on April 4, 2006, for the revocation hearing.

On April 4, 2006, a USPC hearing examiner conducted Petitioner's revocation hearing. Exhibit S, Hearing Summary. Petitioner advised the hearing examiner that he believed that the USPC no longer had jurisdiction and that he had filed a petition for writ of habeas corpus. Id. at 2. The hearing examiner nevertheless proceeded with the revocation hearing. Petitioner admitted to the hearing examiner that he had used drugs and committed the traffic violation, but he denied committing the theft offense. Id. The hearing examiner recommended that the USPC find that Petitioner had violated his special parole term. Id. at 4.

On April 25, 2006,*fn4 the USPC issued its decision to revoke Petitioner's special parole term and forfeit the 524 days Petitioner had spent on special parole pursuant to 21 U.S.C. § 841(c). This decision would have the effect of extending Petitioners' special parole term to September 20, 2010, i.e., the date the warrant for violation of parole was executed, (September 20, 2005), plus the entire five year special parole term. Exhibit U, 2006 Notice of Action. The USPC set a presumptive reparole date of March 20, 2007, after Petitioner will have served yet another 18 months in prison. Id. Although that decision was appealable through administrative processes, Petitioner did not pursue those remedies.

II. PROCEDURAL HISTORY

On April 6, 2006, the Petition was filed in this Court challenging under 28 U.S.C. § 2241 Petitioner's continued supervision by the USPC. Doc. No. 2.

On April 19, 2006, Petitioner was transferred from this district to a facility in Youngstown, Ohio. On that same day, the Court required Petitioner be maintained at the Youngstown facility for 30 days. Doc. No. 9.

On April 28, 2006, the Court held a hearing in which the parties stipulated, on the record, to this Court's continuing jurisdiction in this action. See also Cohen v. U.S., 593 F.2d 766, 767 fn.2 (6th Cir. 1979) (transfer of prisoner did not divest court of subject matter jurisdiction in habeas matter). On that same day, the Court issued an Order directing the clerk to substitute Warden Robert Tapia, the warden of the Youngstown facility, as the Respondent in this action in accordance with 28 U.S.C. § 2243. Doc. No. 11.

On May 5, 2006, the Court heard oral arguments on the merits of Petitioner's claims. In that hearing the government, on the record, waived its right to challenge the Petition based on Petitioner's failure to exhaust the administrative remedies. See Urbina v Thoms, 270 F.3d 292 (6th Cir. 2001) (the government has the ability to waive the exhaustion argument). See also Miller v. U.S. Dept. of Justice, 905 F.2d 1538, 1538 (6th Cir. 1990) (Resort to administrative remedies is futile if the agency "has evidenced a strong position on the issue together with an unwillingness to reconsider.") (citing James v. United States Dep't of Health and Human Serv., 824 F.2d 1132, 1139 (D.C. Cir. 1987)). This Court will therefore proceed to consider the merits of Petitioner's claims.

III. ANALYSIS

Petitioner contends that the USPC has acted in excess of its statutory authority by imposing additional special parole terms after his first special parole term had been revoked. Thus, petitioner has properly brought this action under 28 U.S.C. § 2241. See 28 U.S.C. §§ 2241(c)(3) and 2254(a). See also Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (per curiam) ("Petitions that challenge the manner, location, or conditions of a sentence's execution must be brought pursuant to § 2241 in the custodial court."); Robles v. United States, 146 F.3d 1098, 1100 (9th Cir. 1998) (habeas corpus petition properly attacks [the USPC's] statutory authority to impose multiple special parole terms).

In the Petition, Petitioner argues that, (A) the USPC lacked statutory authority under the special parole statute, 21 U.S.C. § 841(c), to require him to forfeit time spent on special parole; (B) the USPC lost jurisdiction over him before the issuance of the March 29, 2004, warrant pursuant to the good-time credit statute,18 U.S.C. § 4164; and (C) his incarceration is illegal because he ...


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