United States District Court, D. Kansas
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for writ of habeas corpus filed under 28
U.S.C. § 2241. At the time of filing, Petitioner was in
federal custody at Core Civic Leavenworth Detention Center in
Leavenworth, Kansas. On July 12, 2019, the Court entered a
Memorandum and Order and Judgment (Docs. 57, 58), dismissing
some of Petitioner's claims for lack of jurisdiction, as
successive and as moot, and denying the remaining claims. On
September 3, 2019, Petitioner filed a Notice of Appeal. (Doc.
59.) On September 3, 2019, Petitioner filed an Emergency
Application for Modification of Detention Order (Doc. 62).
The Tenth Circuit abated the appeal pending a ruling on the
motion at Doc. 62, and the matter is fully briefed by the
seeks release from custody or to be moved to a halfway house
while the Tenth Circuit Court of Appeals considers his appeal
of this Court's denial of his Petition. Petitioner's
motion cites Fed. R. App. P. 23(d). Rule 23(d) relates to
modifications of an initial order governing the
prisoner's custody or release, including any recognizance
or surety, and is addressed to the court of appeals or the
Supreme Court, or to a judge or justice of either court. Fed.
R. App. P. 23(d). Because the Court has denied the Petition,
the Court will consider Petitioner's request under Rule
23(b). Rule 23(b) provides that: “[w]hile a decision
not to release a prisoner is under review, the court or judge
rendering the decision, or the court of appeals, or the
Supreme Court, or a judge or justice of either court, may
order that the prisoner be: (1) detained in the custody from
which release is sought; (2) detained in other appropriate
custody; or (3) released on personal recognizance, with or
without surety.” Fed. R. App. P. 23(b).
Respondent has filed a response in opposition, arguing that
the Court should order Petitioner to remain “detained
in the custody from which release is sought, ” pursuant
to Fed. R. App. P. 23(b)(1). (Doc. 67.) Respondent advises
the Court that the United States Parole Commission
(“USPC”) held Petitioner's parole revocation
hearing on July 16, 2019, and ordered Petitioner to serve to
the expiration of his sentence, the remainder of the 1, 602
days on his sentence from No. 75CR50-W-2. (Doc. 67-1, at
11-12, Exhibit 3, Notice of Action dated 8/21/2019, p. 1-2).
The USPC ordered Petitioner to serve to the expiration of his
sentence despite the Guidelines suggesting a lower sanction
after finding that “there is a reasonable possibility
[Petitioner] will violate the laws in the community because
[Petitioner is] a more serious risk because of [his] violent
background and three prior revocations of parole.”
Id. After the USPC's revocation decision,
Petitioner is now scheduled to be released from prison on
October 11, 2021, after he serves the entirety of the 1, 602
days remaining on his sentence less accrued statutory good
time credits. (Doc. 67-1, at 3, Exhibit 2, Sentence
Monitoring and Computation Data, p. 1).
argues that despite having his parole revoked three times,
Petitioner committed additional parole violations culminating
in his 1993 Missouri convictions for felony theft and
forcible sodomy, which resulted in an aggregated 25-year
Missouri state sentence. Id. Respondent argues that
in light of Petitioner's continued failures to comply
with the terms of his parole and his failure to demonstrate
any exceptional circumstances, this Court should find that
Petitioner has not met his burden to justify relief pursuant
to Fed. R. App. P. 23(b)(2)-(3).
order to obtain release pending a determination on a [habeas
petition], an inmate must make ‘a showing of
exceptional circumstances' or ‘a demonstration of a
clear case on the merits of the habeas petition.'”
United States v. Zander, 669 Fed.Appx. 955, 956
(10th Cir. 2016) (unpublished) (quoting Pfaff v.
Wells, 648 F.2d 689, 693 (10th Cir. 1981); see also
United States v. Mett, 41 F.3d 1281, 1282 (9th Cir.
1994)) (“In the habeas context, this court has reserved
bail for extraordinary cases involving special circumstances
or a high probability of success.”)); see also
Vreeland v. Zupan, 644 Fed.Appx. 812, 813 (10th Cir.
2016) (unpublished) (finding that “a motion for release
at this late stage required Mr. Vreeland to show not only
‘a clear case on the merits of the habeas
petition,' but also ‘exceptional
circumstances'”) (citations omitted).
Court finds that Petitioner has not shown a clear case on the
merits of his Petition, or exceptional circumstances
warranting his release from custody or transfer to a halfway
house pending his appeal. The majority of Petitioner's
motion and his reply (Doc. 68) reargue the merits of his
habeas petition. Petitioner also argues, apparently for the
first time, that because his statutory release date was
September 12, 1993, and he was not convicted of state crimes
until November 3, 1993, his parole expired and the USPC lost
jurisdiction because it did not execute the warrant or revoke
his parole prior to September 12, 1993. (Doc. 68, at 4.)
Court's Memorandum and Order (Doc. 57-1) shows that
Petitioner was sentenced for his crimes in Jackson County,
Missouri, on November 3, 1993; and he also pleaded guilty to
crimes in Jasper County, Missouri, and was sentenced on May
17, 1993, for those crimes. (Doc. 57-1, at 3.) The USPC's
warrant is dated September 9, 1992, and provides that it
should not be executed “if subject is being held in
custody on other Federal, State, or Local charges, unless
otherwise ordered by the Commission.” (Doc. 67-1, at
2.) This Court addressed the USPC's discretion in issuing
and disposing of parole violator warrants in its Memorandum
and Order. (Doc. 57-1, at 10-11) (“In the case of any
parolee charged with a criminal offense and awaiting
disposition of the charge, issuance of a summons or warrant
may be withheld, a warrant may be issued and held in
abeyance, or a warrant may be issued and a detainer may be
placed.” 28 C.F.R. § 2.44(b).). The Court also
found that when the USPC issues a warrant or a parolee is
convicted of a new crime, the parolee's parole term is
tolled until the warrant is executed. Id. at 11
(citing 28 C.F.R. § 2.47(e)(2)). Petitioner's
arguments do not show a clear case on the merits of his
Petition, or provide exceptional circumstances warranting
relief under Rule 23(b)(2) or (3).
also argues that his motion should be granted as unopposed
because Respondent has not filed a formal notice of
appearance in this case, and that the United States Attorneys
entered into a conspiracy with the Court by “causing
his motion for default to be dismissed illegally.”
(Doc. 68, at 4.) Petitioner's bare allegation of a
conspiracy lacks any factual support and is completely
without merit. Petitioner's motion for default was based
on his allegation that Respondent's pleading should be
stricken due to counsel's “illegal signature”
on the pleading. The Court has addressed Petitioner's
arguments regarding the “illegal signature” and
the lack of a formal notice of appearance, and found both to
be frivolous and meritless. The Court held that:
The Rules Governing Habeas Corpus do not require a formal
entry of appearance, nor did the Court direct such a notice.
Regarding service, the Court previously cited Rule 4-the
clerk must serve a copy of the petition and any order on the
respondent and on the attorney general or other appropriate
officer of the state involved. The Clerk, pursuant to the
Court's Order to Show Cause (Doc. 6), emailed the U.S.
Attorney's office a copy of the Order to Show Cause, the
Petition, and a current docket sheet.
(Doc. 36, at 12.) The Court also found that counsel's
typed “s/” signature was in compliance with this
Court's Local Rule 5.4.8. Id. at 11-12.
IS THEREFORE ORDERED BY THE COURT that
Petitioner's Emergency Application for Modification of
Detention Order (Doc. 62) is denied.
Petitioner shall be detained in the custody from which
release is sought pursuant to Fed. R. App. P. 23(b)(1).
of this order shall be transmitted to Petitioner and to the
Clerk of the U.S. Court of Appeals for the Tenth Circuit.