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.
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
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 ...