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Merriweather v. U.S. Parole Commission

June 15, 2009

HARVEY WILLARD MERRIWEATHER, PETITIONER,
v.
U.S. PAROLE COMMISSION, RESPONDENT.



ORDER

The parties have consented to proceed before the undersigned for all purposes. See 28 U.S.C. § 636(c). Petitioner is a federal prisoner proceeding pro se with a petition for a writ of mandamus pursuant to 28 U.S.C. § 2241. Respondent has filed an answer and petitioner has filed a traverse.

Petitioner is confined at Federal Correctional Institution at Herlong, California. He is serving a sentence of 120 months in the custody of the Federal Bureau of Prisons (hereinafter "BOP") for bank robbery, and has a Parole Commission parole violator warrant lodged as a detainer to be imposed when he completes his sentence.

Petitioner contends the Parole Commission violated his due process rights because it did not conduct a parole hearing on the detainer within 120 days from his request for a hearing. Petitioner also seeks dismissal of the detainer so he can be released from custody upon completion of his 120 month sentence.

PROCEDURAL BACKGROUND

On November 29, 1965, petitioner was sentenced to 18 years for bank robbery. Resp't's Ex. A. On April 25, 1966, petitioner received an additional 8 months' consecutive sentence for escape and attempted escape. Id. On August 31, 1973, petitioner was paroled from the aggregate sentence. Resp't's Ex. B.

While petitioner was on parole, he was arrested on September 18, 1974, and was subsequently convicted of committing five bank robberies.*fn1 On May 1, 1975, a warrant was issued. The warrant was not executed but was retained as a detainer. In 1979, the initial sentence on the five bank robberies was set aside and he was subsequently sentenced to 20 years for the five bank robberies while being armed with a deadly weapon. Resp't's Ex. C.

In 1981, the Parole Commission revoked petitioner's parole on the original sentence and continued him to the mandatory release date on both the new sentence and the balance of the original sentence by continuing him to expiration.*fn2 Resp't's Ex. D. On January 27, 1984, petitioner was granted parole on the aggregate sentence. Resp't's Ex. E. Parole would terminate on September 17, 1994. Id.

However, while petitioner was on parole, he committed another bank robbery and was sentenced on January 21, 1985 to 30 years in prison. Resp't's Ex. F. The Parole Commission revoked petitioner's parole, and granted petitioner re-parole on September 30, 1994 on the balance of the original sentence and the new sentence. Resp't's Ex. G. Petitioner's sentence was to expire on July 30, 2014.*fn3 Resp't's Ex. H.

On March 26, 1996, petitioner's parole was revoked based on petitioner's drug use and a theft charge. Resp't's Ex. I. On March 24, 1998, petitioner's presumptive parole date of April 20, 1997 was vacated and petitioner was ordered to serve an additional 36 months since his previous parole date. Resp't's Ex. K. On May 26, 1998, the Parole Commission voided the prior order stating "All time on parole shall be credited," and found that "None of the time on parole shall be credited." Resp't's Ex. J.

On July 20, 1998, petitioner was re-paroled to serve his 24 month state sentence for theft. Resp't's Ex. L. This parole period was to expire on October 18, 2015. Id.

On November 18, 2000, a warrant was issued based on petitioner's violation of parole conditions.*fn4 Resp't's Ex. M.

Petitioner was convicted of bank robbery and on April 3, 2001, was sentenced by the United States District Court for the District of Oregon to 120 months' imprisonment with a three year term of supervised release to follow. Resp't's Ex. O, Case No. 00-cr-0534.

On April 2, 2003, the Parole Commission advised petitioner that it would be conducting a review of its warrant which was lodged as a detainer while petitioner served his new sentence. Resp't's Ex. P (letter to Warden). The Parole Commission appended a form that petitioner could use to make a statement to be considered during the detainer review. Id. at 3. Petitioner was advised that he could have counsel appointed to assist in making his statement. Id. Petitioner sought the assistance of counsel and the court appointed the Federal Defender's Office in Fresno, California, to assist petitioner. Resp't's Ex. Q. No statement was received by the Commission. Resp't's Ex. R.

In 2008, petitioner wrote the Commission concerning the detainer. Resp't's Ex. S. A second letter was sent to petitioner, again through the Warden, informing petitioner that a detainer review would be held and again providing a form for petitioner to submit a statement. Resp't's Ex. T. Petitioner was advised that his response was due by October 20, 2008. Id. at 2. No statement was received by the Commission. The Commission began its review and, on December 5, 2008, issued the decision to let the detainer stand until petitioner ...


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