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GRIFFITH v. UNITED STATES PAROLE COMMISSION

August 2, 2005.

RALPH GRIFFITH, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, Respondent.



The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER DENYING LETTER PETITION

Before the Court is a letter petition, filed December 18, 2002, by which petitioner Ralph Griffith ("petitioner") seeks to vacate certain action taken by the United States Parole Commission ("Parole Commission"). For the reasons set forth below, the petition is DENIED.

BACKGROUND

  Petitioner was convicted of bank robbery in 1986 in the Middle District of Tennessee. (See Sikkema Cert. Ex. A.) Petitioner was sentenced to concurrent 20-year and 25-year prison sentences, resulting in an aggregate 25-year sentence. (See id. Ex. B and Ex. C at 3.)

  Petitioner began serving his sentence on January 15, 1986, at which time he was credited with 278 days of time served. (See id. Ex. C at 9.) On October 20, 1999, the Bureau of Prisons mandatorily released petitioner, pursuant to 18 U.S.C. § 4163, with 3826 days remaining on his sentence. (See id. Ex. D.) Petitioner's mandatory release contained several conditions, including (1) that he not leave the Northern District of California without the permission of his probation officer, and (2) that he not violate any law. (See id. at 2.)

  In 2001, petitioner contacted the United States Probation Office in Honolulu, Hawaii, seeking to "turn himself in." (See id. Ex. E.) Petitioner admitted that his trip to Hawaii had not been authorized by his probation officer and that, while in Hawaii, he had been convicted of driving under the influence. (See id.) A warrant for petitioner's arrest for violating the conditions of his mandatory release was issued and executed on August 24, 2001. (See id. Ex. C at 3, and Exs. F and G.)

  On January 8, 2002, petitioner signed the Parole Commission's proposal for an expedited revocation determination, by which petitioner waived his right to a hearing on revocation of his mandatory release, and accepted responsibility for the conduct charged against him in the warrant application. (See id. Ex. I.) Pursuant to said agreement, petitioner also agreed to revocation of his mandatory release, forfeiture of credit for time spent on mandatory release, and to reparole after service of 12 months ending on August 24, 2002. (See id.) Petitioner further agreed that his reparole date would be contingent on his "maintaining a record of good conduct in the institution up to the date of release and an acceptable release plan." (See id.) Pursuant to said agreement, the Parole Commission revoked petitioner's mandatory release on January 23, 2002. (See id. Ex. J.)

  On August 20, 2002, the Parole Commission retarded petitioner's reparole date by 60 days as a result of petitioner's parole plan being denied and his refusal to submit a new plan. (See id. Exs. K and L.) On October 17, 2002, the Parole Commission retarded petitioner's parole date an additional 30 days as a result of his having been found by a Disciplinary Hearing Officer to have violated "the rules of the institution," in particular, for engaging in "insolence towards a staff member." (See Sikkema Decl. Ex. M.)

  Petitioner was reparoled on November 22, 2002. (See id. at Ex. N.) The Parole Commission set his parole expiration date at February 13, 2012, for a total term of 3370 days, and ordered him to remain within the Northern District of California until that date. (See id.)

  On December 18, 2002, petitioner filed the instant motion to vacate, set aside, or modify his sentence pursuant to 28 U.S.C. § 2255, arguing that the Parole Commission had improperly "resentenced [him] to a new 10-year sentence with a new two-thirds date and a special 10-year parole." (See Petition at 1.)

  The above-titled action was reassigned to the undersigned on June 23, 2005.*fn1

  DISCUSSION

  A. Challenges to Parole Commission Decisions

  By the instant action, petitioner seeks to "vacate" a "new sentence" assertedly imposed by the Parole Commission. (See Petition at 1.) The Ninth Circuit has held that a petition for a writ of habeas corpus under 28 U.S.C. § 2241, and not a motion to vacate a sentence under 28 U.S.C. § 2255, generally is the proper vehicle for obtaining judicial review of Parole Commission decisions. See Andrino v. United States Board of Parole, 550 F.2d 519, 519 (9th Cir. 1977); see also Tyler v. United States, 929 F.2d 451, 453 n. 5 (9th Cir. 1991) (citing Andrino). Here, petitioner challenges his placement on parole and the Parole Commission's calculation of his remaining sentence. Because both of these claims concern the amount of time petitioner must remain in custody, see Jones v. Cunningham, 371 U.S. 236, 243 (1963) (holding prisoner placed on parole remains "in custody" for purposes of 28 U.S.C. § 2241), the instant action is more properly construed as a petition for a writ of habeas corpus under § 2241 rather than a motion under § 2255. See Tucker v. Carlson, 925 F.2d 330, 331 (9th Cir. 1991) (holding prisoner's challenge of Parole ...


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