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Foreman v. Stewart

United States District Court, D. Maryland

February 25, 2014

ORLANDO FOREMAN, Petitioner,
v.
TIMOTHY S. STEWART, et al., Respondents.

MEMORANDUM

DEBORAH K. CHASANOW, District Judge.

Procedural History

On May 9, 2013, this court received for filing a 28 U.S.C. § 2241 Petition from Orlando Foreman ("Foreman") who is incarcerated that the Federal Correctional Institution in Cumberland, Maryland. ECF No. 1. Foreman contended that he was illegally confined because he has completed his federal sentence and is detained on a parole violator warrant but has not been provided a parole revocation hearing in a timely manner in violation of his due process rights. Id. After the Petition was filed, a parole revocation hearing was held, parole was revoked, and Petitioner was ordered to serve the remainder of his sentence. Petitioner then amended his petition, abandoning the claim regarding the untimely holding of his revocation hearing, but arguing that the Commission unlawfully continued him to the expiration of his sentence without affording him a hearing under the parole commission's criteria articulated at 18 U.S.C. § 4206(d) and 28 C.F.R. § 2.53.

For reasons to follow, the Petition (both original and amended) shall be denied and dismissed.

Arguments

Respondents' records show that on October 8, 1987, Foreman was sentenced to an 18 year term of imprisonment for bank robbery by the United States District Court for the District of Delaware. ECF No. 8, Ex. 1. Foreman was paroled from this sentence on March 5, 1995. He was to remain under parole supervision until June 10, 2005. Id., Ex. 2.

On September 19, 1996, the United States Parole Commission was advised that Petitioner had been convicted of possession of a firearm by a prohibited person in the United States District Court for the District of Delaware. Foreman was scheduled to be sentenced on November 12, 1996. Id., Ex. 3. On that same date, the Commission issued a warrant charging Foreman with violating the conditions of parole by possessing a firearm. Id., Ex. 3 & 9. The United States Marshals Service was instructed by the Commission that the warrant should be placed as a detainer and that Foreman should be taken into custody when released, which was tentatively scheduled for January 31, 2013. Id., Ex. 1 & 4.

Foreman was sentenced on November 7, 1996, by the United States District Court for the District of Delaware to a 235 month term of imprisonment, with three years' supervised release, for his firearm possession conviction. On November 27, 1996, the Commission supplemented the September 19, 1996 warrant application, indicating that Foreman had been convicted of possession of a firearm by a prohibited person and sentenced to a 235 term of imprisonment. Id., Exs. 1 & 5.

The Commission again supplemented the warrant on March 10, 1997, noting additional violations including second degree robbery, first degree burglary, attempted robbery, menacing and reckless endangering for which Foreman had been convicted in the Superior Court of New Castle County Delaware. Id., Ex. 6. Thereafter, a detainer was placed on Foreman while he served his federal sentence. Id., Ex. 7.

On September 1, 1998, after completing an on the record review of the detainer, Foreman was notified by the Commission that it had ordered the detainer stand. Id., Ex. 8.

On January 31, 2013, Foreman came into custody of the Commission when its warrant was executed. Id., Ex. 9. A parole revocation hearing was held on June 3, 2013. Id., Ex. 10. The Commission advised Foreman on July 2, 2013, that it had revoked his parole, ordered he receive no credit for time spent on parole and ordered that he serve to the expiration of his sentence. Id., Ex. 11. The Commission's determination was based on a finding that Foreman had violated the terms of his parole given his convictions in the United States District Court for the District of Delaware and Superior Court of New Castle County, Delaware. Id.

Respondents argue that the original Petition is subject to dismissal as the proper remedy for a delayed hearing is not habeas relief, but rather mandamus. They further opine that Foreman has not shown unreasonableness or prejudice from the delay in holding his revocation hearing. Respondents also assert that Foreman's Petition is moot as the only relief to which he is entitled, the conducting of a hearing, has occurred. ECF No. 8.

Foreman replied indicating his abandonment of the claim regarding the untimely holding of his revocation hearing. Instead he argues that the Commission unlawfully continued him to the expiration of his sentence without affording him a hearing under the parole commission's criteria articulated at 18 U.S.C. § 4206(d) and 28 C.F.R. § 2.53.

Respondents indicate that during Foreman's revocation hearing the parole violations were not in dispute given the fact that the violations were conclusively established by Foreman's two intervening criminal convictions. Respondents further maintain that applying § 4206(d) to Foreman's convictions would have caused the Commission to find "a reasonable probability that [Petitioner] will commit any Federal, State or local crime" and thus revocation of parole and continuation to the expiration of his sentence was proper. ECF Nos. 16 and 18. Lastly, ...


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