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McElroy v. United States Sentencing and Parole Commission

June 23, 2010

JAMES MCELROY, PETITIONER,
v.
UNITED STATES SENTENCING AND PAROLE COMMISSION, RESPONDENT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

I. Introduction

Petitioner is a federal prisoner incarcerated in state prison proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.

In 1987, petitioner was convicted in the United States District Court for the Southern District of New York of the following offenses: (1) Count 1--Racketeering Enterprise (18 U.S.C. §§ 1961, 1962(a)); (2) Count 2--Racketeering Conspiracy (18 U.S.C. §§ 1961, 1962(d)); (3) Counts 3 and 4--Violent Crimes in Aid of Racketeering Enterprise (18 U.S.C. § 1952B and 2); (4) Count 5--Conspiracy to make Extortionate Extensions of Credit (18 U.S.C. §§ 891, 892); (5) Count 7--Conspiracy to Use Extortionate Means to Collect Extensions of Credit (18 U.S.C. §§ 891, 894); (6) Counts 11and 12--Conspiracy to Interfere with Commerce by Threats or Violence (18 U.S.C. § 1951).

Petitioner was sentenced as follows: (1) Counts 1, 2, and 3 - 20 years on each count to run consecutively with each other; (2) Counts 4, 11, 12 - 10 years on each count concurrently with all other counts; (3) Counts 5 and 7 - 5 years on each count concurrently with all other counts.

Petitioner alleges that the Parole Commission improperly denied him parole and that the sentencing guidelines have been improperly applied to his case. For the following reasons, the petition should be denied.

II. Discussion

Petitioner alleges the Bureau of Prisons ("BOP") improperly found that pursuant to the 1987 Sentencing Reform Act, he must serve two-thirds of his sentence before he may be released. Petitioner argues that the Sentencing Reform Act does not apply to him as he committed his offenses before it was enacted. Petitioner also argues that the Parole Commission improperly relied on numerous murders he allegedly committed, but was not convicted of, to find him ineligible for parole for 15 years.

Respondent first argues that the petition should be denied based on petitioner's failure to exhaust administrative remedies. Before bringing a habeas petition under § 2241, a federal prisoner generally must exhaust his administrative remedies. Terrell v. Brewer, 935 F.2d 1015, 1019 (9th Cir.1991); Tucker v. Carlson, 925 F.2d 330, 332 (9th Cir.1991).

The procedures for exhausting claims with the BOP are set forth as: The Federal Bureau of Prisons ("BOP") has an administrative remedy procedure by which inmates can seek formal review of their complaints regarding any aspect of imprisonment. The procedure requires a prisoner to: first attempt to resolve his complaint informally through the BP-8 remedy; then raise his complaint with the warden in writing through the BP-9 remedy; if the matter is not resolved in a manner satisfactory to the prisoner, the prisoner must appeal to the BOP's Regional Director through the BP-10 remedy; and then if the prisoner is still unsatisfied, he must appeal to the BOP's Office of General Counsel through the BP-11 remedy. Until this process is completed, a prisoner's administrative remedies have not been exhausted. See 28 C.F.R. §§ 542.10- 542.19.

Wilson v. Ives, No. CV 09-5795-ODW (MAN), 2010 WL 2353376 at *6 (C.D. Cal. 2010).

Regulations setting forth the procedures by which inmates may administratively appeal decisions regarding the denial of parole by the Parole Commission are contained, in relevant part, in 28 C.F.R. § 2.26:

(a)(1) A prisoner or parolee may submit to the National Appeals Board a written appeal of any decision of any decision to grant (other than a decision to grant parole on the date of parole eligibility), rescind, deny or revoke parole, except that any appeal of a Commission decision pursuant to § 2.17 shall be submitted as a petition for reconsideration under § 2.27.

(2) The appeal must be filed on a form provided for the purpose within 30 days from the date of entry of the decision that ...


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