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Tonkins v. U.S. Parole Commission

United States District Court, D. Maryland

June 14, 2018

ROBERT TONKINS Petitioner
v.
US PAROLE COMMISSION Respondent

          MEMORANDUM OPINION

          Paul W. Grimm, United States District Judge

         Petitioner Robert Tonkins is a federal prisoner confined at the Federal Correctional Institution (“FCI”) in Cumberland, Maryland. He has filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2241, seeking to remove a warrant issued by the United States Parole Commission (“USPC”). Pet., ECF No. 1; Supp., ECF No. 3. In its response and motion to dismiss, the USPC defends its issuance of the warrant and argues that its execution is properly delayed until Tonkins completes his current term of incarceration. ECF No. 8. There is no need for an evidentiary hearing. See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts; Loc. R. 105.6; see also Fisher v. Lee, 215 F.3d 438, 455 (4th Cir. 2000) (petitioner not necessarily entitled to a hearing). For the reasons stated below, the Petition shall be denied, USPC's motion granted, the case dismissed, and a Certificate of Appealability shall not issue.

         I. Background

         Respondent provides the following unopposed outline of Tonkins's criminal history.

On March 15, 2002, the Superior Court of the District of Columbia sentenced Tonkins to 15 years of imprisonment with 20 years of supervised release for armed carjacking, armed robbery, possession of a firearm during a crime a violence, carrying a pistol without a license, possession of a unregistered firearm, and unauthorized use of a vehicle. (Ex. A, Bureau of Prisons Sentence Monitoring Computation Data, at 1.) Petitioner was released from incarceration on June 12, 2015, at which time he commenced the 20-year supervised release term. (Id. at 2.) . . .
On January 17, 2016, Petitioner was arrested for possession of a firearm, possession of ammunition, theft, and receiving stolen property. (Ex. B, USPC Warrant and Warrant Application, at 4.) On July 26, 2016, Petitioner was convicted of possession of a firearm by a convicted felon by the United States District Court for the District of Maryland, and sentenced to 46 months in prison with three years of supervised release. (Ex. C, supplement to warrant application.)

Resp. & Mot. 1-2; see also Supp. to Warrant Application, ECF No. 8-3; United States v. Tonkins, Crim. No. PWG-16-53 (D. Md.).

         Based on that 2016 arrest, and prior to his sentencing in this Court, the USPC issued a warrant charging Tonkins with violations of the D.C. Code supervised release term.[1] Tonkins states that at his sentencing in this Court, I asked that the USPC commence any sentence imposed as a result of his supervised release violation concurrent with the 46-month sentence imposed. ECF No. 11. Although a transcript of the sentencing hearing has not been prepared, Tonkin's recollection is supported by the criminal judgment, in which “[t]he Court recommend[ed] to the Parole Commission that any sentence for Violation of Parole run concurrently with this sentence.” Jmt. 2, ECF No. 25 in No. PWG-16-53.

         II. Discussion

         Respondent states that the warrant was “placed as a detainer while Petitioner served the new federal sentence” imposed in this Court, and insists that Tonkins “is not entitled to have the USPC conduct a supervised release revocation hearing until he completes the intervening sentence, and the warrant is executed.” Resp. & Mot. 2, 4; see Warrant Execution Instructions, ECF No. 8-2, at 5 (“If the prisoner is already in the custody of federal, state or local authorities, do not execute the Commission's warrant. Place a detainer and notify the Commission for further instructions.”). Tonkins argues that the warrant was executed and therefore, placement of a detainer was improper following his return to federal custody; in his view, he instead is entitled to a parole violation hearing within 90 days of the date of execution of the warrant or as soon as practical. Reply 1, ECF No. 11. Tonkins submits what appears to be an executed warrant (Warrant Return, ECF No. 11-1, at 7), and asserts that on July 26, 2016, immediately after he was sentenced in this Court, the USPC arrested him, detained him in the District of Columbia, and then returned him to FCI-Cumberland to serve the sentence imposed by this Court a few weeks later. Reply 1. Based on Tonkins's Reply and the Warrant Return, on May 11, 2018, I ordered Respondent to show cause why the relief sought should not be granted. ECF No. 12.

         Respondent notes that the Warrant itself, as well as the Warrant Execution Instructions accompanying the warrant directed the U.S. Marshals Service not to execute the warrant “if Petitioner was being held in custody on new state or federal charges, ” absent order by the USPC. Resp. to Show Cause Order 2, ECF No. 13; see Warrant and Warrant Execution Instructions, ECF No. 8-2, at 2, 5. According to Respondent, the Marshals Service mistakenly executed the warrant on July 26, 2016, and corrected the error the following day, July 27 2016, by re-lodging the warrant as a detainer, thus voiding the execution of the warrant. Resp. to Show Cause Order 2; see July 27, 2016 Email from USPC to U.S. Marshals Service, ECF No. 13-1 (“Our warrant was executed yesterday, 7-26-16 and the subject was taken to DC Jail where he remains. However, the subject was also sentenced to 46 months in the U.S. District Court for the District of Maryland yesterday. Therefore the warrant was executed in error and should be re-lodged as a detainer as he has not yet completed this new sentence. I will void our copy of the executed warrant.”); July 27, 2016 Email from USPC to USPO Awkward (noting that “USMS in Baltimore . . . will ensure that [USPC's] warrant is re-lodged as a detainer”; attaching copy of “warrant supplement dated 7-26-16”), ECF No. 13-2.

         III. Analysis

         Respondent correctly outlines the regulatory action permitted the USPC may take in response to an individual's violation of the conditions of supervised release:[2]

When a D.C. Code offender on supervised release is alleged to have violated the conditions of release, the USPC may issue a summons requiring him to appear for a probable cause hearing or revocation hearing, issue a warrant to return him to custody, or withhold issuance of the warrant based on the frequency or seriousness of the violations. See 28 C.F.R. § 2.211. If the violation includes new criminal conduct, the USPC may temporarily withhold issuance of the warrant, issue the warrant and hold it in abeyance, issue the warrant and lodge a detainer with the custodial authority, or issue the warrant to retake the releasee into custody. Id. If the releasee is convicted of a criminal offense while on supervised release and is serving a new prison sentence, the USPC may lodge its warrant against him as a detainer to be executed when he completes the intervening sentence. See 28 C.F.R. ยง 2.213(a). The USPC has the discretion to decide when to initiate proceedings to revoke supervised release so that all relevant information is available to make its decision or decide ...

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