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CARMEL v. THOMAS

March 23, 1981

Jerald CARMEL, Petitioner,
v.
Dale THOMAS, Warden, Metropolitan Correctional Center, Respondent



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

Petitioner Jerald Carmel brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking his release from custody. *fn1" Specifically, Carmel challenges the action of the United States Parole Commission in revoking his parole in part on the basis of his convictions under the laws of France and Sweden. For the reasons stated, the petition is denied.

 In a prior habeas corpus petition, Carmel asserted a denial of his due process rights arising from the Commission's failure to accord him a final parole revocation hearing within ninety days of his arrest on a parole violator warrant as required by 18 U.S.C. § 4214(c). Judge Weinfeld denied that petition, finding that much of the delay in scheduling the hearing was occasioned by Carmel's own request and, in any event, that he was unable to point to any specific prejudice flowing from the delay. Carmel v. United States Parole Commission, 489 F. Supp. 113, 115 (S.D.N.Y.), appeal dismissed, No. 80-2143 (2d Cir. July 11, 1980). The factual background is drawn from Judge Weinfeld's opinion and the pleadings in this action.

 I.

 Carmel was convicted in the Eastern District of New York of bank robbery and was sentenced in July 1961 to a 15-year term of imprisonment. On August 21, 1972, he was released from federal custody to parole supervision with 2,455 days remaining on the original sentence. His parole was to terminate on May 12, 1979. However, on September 26, 1972, the Commission was advised by petitioner's probation officer that Carmel had absconded from supervision. On October 10, 1973 a parole violator warrant was issued charging Carmel with parole violations arising from his failure to submit supervision reports and for failure to report his change in residence. Subsequently, the Commission learned that Carmel had fled the country and had encountered further difficulties with law enforcement officers abroad. More particularly, the Commission was advised on March 14, 1975 that Carmel had been arrested in France on charges of possession of a firearm and forgery; later, the Commission learned that Carmel had been sentenced on those charges and had escaped from a French penitentiary. Further, the Commission was advised on March 17, 1977 that Carmel had been arrested in Sweden on fraud charges, which led to his conviction and eventual expulsion from that country.

 The more recent history begins with Carmel's arrest on the parole violator warrant on August 4, 1979 as he entered the United States from Canada. On August 22, 1979, a preliminary interview was conducted by a United States probation officer in Albany, New York, pursuant to 18 U.S.C. § 4214(a), *fn2" during which Carmel, represented by an attorney, admitted the charges on which the warrant against him was based. On September 17, 1979, the Commission found probable cause to believe that Carmel had violated the conditions of his parole and requested pursuant to 28 C.F.R. § 2.49(c) *fn3" that he be designated to a federal institution for a final revocation proceeding. Carmel was sent to the United States Penitentiary at Lewisburg, Pennsylvania.

 A revocation hearing was scheduled at Lewisburg for October 11, 1979 but Carmel requested and was granted a continuance until the December 1979 parole hearing docket. A hearing was scheduled for December 12, 1970 when it was determined that Carmel had been removed from the Lewisburg facility on a writ of habeas corpus ad testificandum. For reasons which remain unclear, the Commission was unaware of Carmel's whereabouts until March 5, 1980, when it was served with his first petition seeking his release from custody, then at the Metropolitan Correctional Center (the "MCC") in New York City. The Commission responded in part by scheduling a revocation hearing for March 26, 1980, at which time Carmel requested and was granted a further continuance for the purpose of obtaining counsel and procuring witnesses. In the interim, Judge Weinfeld denied Carmel's first petition which, as noted earlier, challenged the timeliness of the hearing.

 Finally, a revocation hearing was held on May 29, 1980 at the MCC. The two-member hearing panel made formal findings of fact on the basis of Carmel's admissions to the examiner panel in March 1980 and the evidence developed before the hearing panel on May 29, 1980 that Carmel had violated the conditions of his release as charged originally, and in respect of the additional charges of leaving the district to which parole supervision had been transferred without permission and the convictions in France and Sweden. The hearing panel recommended that parole be revoked with credit for the time spent on parole from the date of his release from prison until July 6, 1973 when he absconded. The proceeding was referred to the Regional Commissioner for resolution of a split in the panel's recommendation regarding re-parole; one examiner recommended a continuance of the hearing pending collection of more precise information regarding the two foreign convictions and the other examiner, on the basis of the information already in the record, recommended a presumptive release date of May 24, 1982.

 Upon review in the Regional Office pursuant to 28 C.F.R. § 2.23(c), *fn4" the Administrative Hearing Examiner reviewed the foregoing and voted to revoke Carmel's parole, to give Carmel credit for time under supervision from the date of his release until July 6, 1973, and to continue Carmel to a presumptive parole date on May 24, 1982. This became the recommendation of the panel and, with the Regional Commissioner's concurrence, the decision of the Commission pursuant to 28 C.F.R. § 2.23(d). *fn5" Carmel was so advised by three Notices of Action dated June 19, 1980. *fn6"

 Carmel filed this petition on July 17, 1980 while still incarcerated at the MCC. The petition asserts that his custody is unlawful due to the Commission's consideration of his two foreign convictions in its determination to revoke his parole and establish a presumptive parole date. An application praying for an order restraining officials of the Bureau of Prisons from transferring Carmel to another institution pending the determination of the instant petition was denied in a Memorandum Opinion and Order dated September 26, 1980 and Carmel was transferred back to the United States Penitentiary at Lewisburg.

 The respondent does not contest this Court's jurisdiction of the petition; nor could he, since "the passing about of the body of a prisoner from one custodian to another after a writ of habeas corpus has been applied for (does not) defeat the jurisdiction of the court to grant or refuse the writ on the merits of the application." Ex parte Catanzaro, 138 F.2d 100, 101 (3d Cir. 1943), cert. denied, 321 U.S. 793, 64 S. Ct. 789, 88 L. Ed. 1083 (1944); Smith v. Campbell, 450 F.2d 829, 832-33 (9th Cir. 1971). The Government does contend, however, that the petition should be dismissed for Carmel's failure to exhaust his administrative remedies and, alternatively, on the ground that the Commission's decision did not violate Carmel's constitutional rights or abuse its discretion. These contentions are considered in turn.

 II.

 It is settled law that a petitioner seeking a writ of habeas corpus must exhaust available administrative remedies as a prerequisite to habeas relief. E.g., Guida v. Nelson, 603 F.2d 261, 262 (2d Cir. 1979); Lambert v. Warden, 591 F.2d 4, 8 (5th Cir. 1979); United States ex rel. Sanders v. Arnold, 535 F.2d 848, 851 (3d Cir. 1976); Willis v. Ciccone, 506 F.2d 1011, 1015 (8th Cir. 1974). An aggrieved parolee can seek reconsideration of an adverse parole determination such as modification or revocation of parole by written application to the appropriate regional commissioner not later than thirty days after the decision is rendered, 18 U.S.C. § 4215(a); *fn7" following an adverse determination thereon, an appeal lies to the National Appeals Board pursuant to 18 U.S.C. § 4215(b). *fn8" See also 28 C.F.R. §§ 2.25 and 2.26. *fn9" Carmel has pursued neither ...


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