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United States District Court, S.D. New York

August 5, 2004.


The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge



  By Order dated May 27, 2004, I ordered petitioner Eric Carlisle Martinson ("Petitioner") to show cause why his petition for a writ of habeas corpus under 28 U.S.C. § 2241, challenging a denial of parole, should not be dismissed as moot, as Petitioner had been released from prison during the pendency of the petition. (Dkt. 22.) Petitioner timely responded to that Order (see Petitioner's Affidavit and Memorandum of Law in Support of Motion for Ruling on Merits, dated June 28, 2004 ("6/28/04 Pet. Mem.")), arguing, in substance, that he is continuing to suffer adverse consequences from the denial of parole, in that he is currently serving a five-year term of supervised release on another conviction "which would have begun three years sooner had the [United States Parole] Commission not abused its discretion" in denying parole when it did (see id. at 4). In his submission, Petitioner has also sought to amend his petition to drop any request that he be granted parole and released from prison, although Petitioner maintains that he is still entitled to a ruling "on the merits" of his petition. (Id. at 6.) According to Petitioner, an adjudication on the merits would continue to be relevant to "any future consideration by the Court pursuant to [Petitioner's] supervised release as well as future consideration concerning special parole." (Id. at 4-5.)

  For the reasons discussed below, I recommend that the petition be dismissed. Petitioner has not adequately demonstrated that an adjudication by this Court on the merits of his petition would be anything other than advisory at this point, and even if the petition is not now moot, it would nonetheless be subject to dismissal on the merits.


  A. Factual Background

  Petitioner committed a number of federal offenses, including drug-trafficking offenses, over a period of years, for which he was prosecuted in the United States District Court for the Eastern District of Pennsylvania. He was sentenced first — in 1993 — for the later of these crimes (i.e., those committed between 1987 and 1992),*fn1 and then sentenced subsequently — in 1994 — for his initial federal crime, committed in 1985.*fn2 Petitioner's 1993 sentence, imposed under the Sentencing Reform Act, was for a prison term of 120 months and a term of supervised release of five years. (See Resp. Return, Thiessen Decl., Ex. E, at 8.) Petitioner's 1994 sentence, for his earlier crime, was for a prison term of five years, for which Petitioner was parolable. (See id., Ex. D (Judgment in a Criminal Case), at 2.) The second sentence was ordered to run consecutively to the first. (See id.; see also Respondent's Opposition to Petition, filed Sept. 13, 2002 ("Resp. Opp."), at 1-2.) Petitioner was incarcerated, pursuant to these sentences, in the Otisville Federal Correctional Institution in New York.

  Petitioner asserts that the 1985 crime was related to his later crimes, and he further asserts that the prosecution stated as much at the time of his second sentencing, in its effort to make the 1985 crime seem more serious, and thus to secure the maximum sentence for it. (See Resp. Return, Thiessen Decl., Ex. I (Transcript of 1994 Sentencing), at 8 ("This case represents to us the start of Mr. Martinson's successful methamphetamine trafficking.").) In his habeas petition, Petitioner argues that, in denying him parole on his second sentence, it was an abuse of discretion for the United States Parole Commission (the "Commission" or "Respondent") to have ignored the government's prior statement that the crimes were related, and to have denied him any parole guideline credit for the time he served in prison on his first sentence. Petitioner argues that a finding by the Commission that the crimes were "related" would have compelled his earlier release.

  The parole determination that Petitioner challenges was recommended by a hearing examiner of the Commission, in April 2001.*fn3 (See id., Ex. G, at 1-2; Petition, filed June 25, 2002 ("Pet."), at 2.) The Commission agreed with the recommendation that parole be denied, and ordered that Petitioner "continue [in prison] to expiration [of his term]." (See id., Ex. H, at 1.) Although Petitioner filed a timely administrative appeal of the Commission's decision to the Commission's National Appeals Board, he alleged in his petition that the Appeals Board failed to decide his appeal. (See Pet. at 2; Resp. Opp. at 4.) Subsequently, however, the Appeals Board did decide the appeal, upholding the Commission's determination that Petitioner be denied parole (see Resp. Return, Thiessen Decl., Ex. J (Notice of Action on Appeal)). The Commission's decision, therefore, is now final, and Petitioner currently appears to be challenging only that decision, and not any failure by the Appeals Board to act. (See 6/28/04 Pet. Mem. at 6-8.)

  On March 19, 2004, after completing his second prison term,*fn4 Petitioner was released from prison, and he currently resides in Philadelphia (see Dkt. 21 (notice of change of address)), where he is apparently serving his term of supervised release on his 1993 sentence, as well as a two-year term of special parole with respect to his 1994 sentence. (See Resp. Return, Thiessen Decl., Ex. C, at 1; see also 6/28/04 Pet. Mem. at 5 ("[P]etitioner also has two years special parole").)

  B. Procedural History

  Petitioner is proceeding in this action in forma pauperis. (Dkt. 1.) His habeas petition, submitted under 28 U.S.C. § 2241, is dated October 24, 2001, although it was not entered on the Court's docket until June 25, 2002.*fn5 (Dkt. 2.) The matter was referred to me for a report and recommendation on July 10, 2002. (Dkt. 4.) Respondent filed its opposition to the petition on September 13, 2002 (Dkt. 7), and Petitioner filed a reply on September 25, 2002 (Dkt. 8). Respondent then submitted a short additional brief on October 2, 2002, to which Petitioner again filed a reply, on October 11, 2002. (Dkt. 9.)

  Since then, Petitioner has made several additional applications to the Court: (1) Petitioner filed a motion to supplement the record (Dkt. 11), which the Court granted in part and denied in part on July 18, 2003 (Dkt. 13); (2) Petitioner filed a motion to compel production of material (Dkt. 12), which was granted by the Court, also on July 18, 2003 (Dkt. 13); (3) Petitioner moved for entry of judgment as a sanction for Respondent's alleged noncompliance with the Court's order compelling discovery (Dkt. 17), which the Court denied on September 25, 2003 (Dkt. 16); (4) Petitioner applied for appointment of counsel (Dkt. 14), which the Court denied on February 2, 2004 (Dkt. 19); (5) Petitioner again filed a motion to expand the record (Dkt. 18), which the Court also denied on February 2, 2004 (Dkt. 19); and (6) Petitioner filed a motion requesting an order scheduling discovery (Dkt. 20), which the Court denied on February 20, 2004 (see Dkt.).*fn6 While his habeas petition was still under consideration by the Court, Petitioner was released from custody. (See Dkt. 21.) As the original goal of Petitioner's petition was to secure his release from prison, and as he was, in fact, released during the petition's pendency, I ordered Petitioner to show cause why his petition should not be dismissed as moot. (Dkt. 22.) Petitioner responded to that Order, as noted above. (See supra at 1-2; Dkt. 23.) Respondent, for its part, has chosen not to make any submissions on the issue of mootness raised by the Court.



  The Court is not persuaded that, at this point, Petitioner can present to the Court a live case or controversy resulting from the 2001 denial of parole. Petitioner is apparently not seeking to be relieved of his current term of supervised release, nor is it likely that he could seek or be granted such relief, given that his supervised release term relates to a sentence (the 1993 sentence) other than the one on which parole was denied (the 1994 sentence). In fact, in his motion to amend the petition, Petitioner merely asks that any prior request for relief in the form of release from prison be dropped from the petition, in an apparent acknowledgment that any such request for relief would now be moot. (See 6/28/04 Pet. Mem. at 6.) Petitioner seeks to add no alternate demand for relief, falling back on nothing more than a request that the Court "rule on the merits" of his claim because such an adjudication may influence "any future consideration by the Court pursuant to [Petitioner's] supervised release," or may influence "future evaluations" by his supervisor, or may affect future determinations regarding his special parole. (Id. at 4-6.)

  Petitioner's speculation that an adjudication by this Court may affect some future evaluations by his supervisor on matters not specified, or may affect future judicial or administrative determinations, is insufficient to show a real and continuing impact flowing from the challenged parole decision. See, e.g., Spencer v. Kemna, 523 U.S. 1, 14-15 (1998) (holding that a petitioner's claim that a parole revocation could be used to his detriment in a future parole proceeding is too speculative to satisfy the Constitution's case-or-controversy requirement); see also Mercer v. United States Parole Comm'n, 774 F.2d 1163 (6th Cir. 1985) (table) (unpublished opinion) ("The general rule is that where a prisoner attacks only the parole decision made by the Commission, the prisoner's release on parole moots the appeal.") (citation omitted); Brady v. United States Parole Comm'n, 600 F.2d 234, 236 (9th Cir. 1979) ("Appellant's § 2241 habeas corpus petition attacks the Parole Commission's decision to keep him in custody. He is now on parole and does not challenge the validity of his original conviction. On this record the case is moot.") (citations omitted). Further, Petitioner has not shown that he can cure the present defect in his petition by way of amendment, as he offers no viable proposal for relief that may be granted by the Court. Therefore, I recommend that the petition be dismissed as moot, and that Petitioner's motion to amend the petition be denied.


  Even if Petitioner were able to show that his petition is not moot, I would, in any event, recommend denial of the petition on the merits, as Petitioner cannot show that the Commission abused its discretion in denying him parole.

  A. Applicable Legal Standard

  When reviewing a decision of the United States Parole Commission, a court is limited to determining whether the Commission has abused its discretion. See, e.g., Liberman v. Gunnell, 726 F.2d 75, 77 (2d Cir. 1984). A court may not substitute its independent judgment for that of the Commission, and must defer to the Commission's interpretation of its own rules, only reversing in cases where the Commission's interpretation is unreasonable and without rational basis. See id.; Iuteri v. Nardoza, 732 F.2d 32, 37 (2d Cir. 1984). Accordingly, this Court must uphold the Commission's decision unless that decision is irrational. See Iuteri, 732 F.2d at 37.

  B. The Commission's Decision

  Petitioner's challenge to the Commission's decision is based entirely on the theory that, if the Commission had properly found that his 1994 sentence was for an offense that was "related" to the offenses underlying his 1993 sentence, then the Commission would have necessarily — under its own parole guidelines — given him parole guideline credit for time served on his 1993 sentence. (See Petitioner's Response to Respondent's Opposition, dated Sept. 20, 2002 ("9/20/02 Pet. Mem."), at 1-2.) Petitioner argues that, in light of the fact that the prosecution informed the Court at the time of the 1994 sentencing that the crime then at issue was the "start" of Petitioner's drug-trafficking activities, the Commission abused its discretion in finding the offenses unrelated.*fn7 (See id. at 2; attachment to Pet. (Attached Explanation to Parole Form I-22).)

  As the Appeals Board found, however, there existed a rational basis for deeming Petitioner's 1985 and the 1987-92 offenses unrelated, in that the charges involved were of a different character, and at least certain of the crimes were significantly separated in time. (See Resp. Return, Thiessen Decl., Ex. J.) Moreover, Petitioner has offered no authority for the proposition that a statement by the government to the Court at the time of sentencing should bind the Commission in a parole determination. As the Appeals Board held:

At your parole hearing, the hearing examiner correctly noted that because your offenses involved two wholly separate offenses, you did not deserve guideline credit for the time you spent serving your new law sentence. The fact that the prosecutor in your cases expressed concern to the sentencing judge that you are a career offender with multiple drug offenses does not change the independent character of your crimes, committed as much as seven years apart.

  Furthermore, Petitioner has offered no support for his assertion that he would have been entitled to parole guideline credit for time served on his 1993 sentence, had the Commission simply determined that the offenses underlying that sentence were "related" to the offense for which he was sentenced in 1994. In its decision, the Appeals Board noted that, under the Commission's rules and procedures, a prisoner may only receive parole guideline credit for time spent in custody for offenses that the Commission considered when determining the prisoner's offense severity rating. (Id.) As the offenses underlying Petitioner's 1993 sentence were not, in fact, taken into account in the calculation of the offense severity rating for Petitioner's 1985 crime (see id., Ex. H, at 1), the Commission concluded that no parole credit was due. (See id., Ex. J.) The Commission's logic in this regard is compelling, and in no way supports a finding of an abuse of discretion. To the contrary, the Commission's decision seems to be reasonable, and not in contravention of any established rules or procedures. Finally, although Petitioner cites 28 C.F.R. § 2.21 in support of his argument that he should have been credited with time spent in custody on his 1993 sentence (9/20/02 Pet. Mem. at 2), that section applies to reparole proceedings, and is thus not implicated in this case. See 28 C.F.R. § 2.21; see also Respondent's Reply Brief, dated Oct. 2, 2002, at 2. Indeed, this is evident even from Petitioner's own excerpt of this regulation. (See 9/20/02 Pet. Mem. at 2 (excerpting the portion of 28 C.F.R. § 2.21(c) which reads: "Time served on a new state or federal sentence shall be counted as time in custody for reparole guideline purposes." (emphasis added)).)

  Thus, there is no basis for this Court to find that the Commission abused its discretion. The fact that the offenses underlying both sentences may be "related" to the extent that they both involved some aspect of drug trafficking does not lead to the conclusion that the Commission acted unreasonably, without a rational basis, or in contravention of its established procedures, in denying parole in this case. In fact, the Commission appears to have acted reasonably, rationally, and in accordance with its rules and procedures.


  For all of the foregoing reasons, I recommend that the petition be dismissed in its entirety, and that Petitioner's outstanding motion to amend the petition be denied.

  Further, I recommend that the Court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(1)(A), because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).

  Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, United States Courthouse, 500 Pearl Street, Room 1040, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 40 Centre Street, Room 631, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).

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