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Mance v. United States Parole Commission

United States District Court, S.D. New York

May 17, 2017

VICTOR MANCE, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, Respondent.

          Pro Se VICTOR MANCE F.C.I. Otisville.

          Attorneys for Respondent United States Attorney's Office Southern District of New York By: Sharanya Mohan, Esq.

          OPINION

          SWEET, D.J.

         Victor Mance ("Mance" or the "Petitioner"), proceeding pro se, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 (the "Petition") to correct the error of the United States Parole Commission (the "Commission") revoking his parole. Based on the conclusions set forth below, the Petition is denied.

         I. Prior Proceedings

         On April 8, 1987, the U.S. District Court for the Southern District of New York sentenced Petitioner in case number S87 Cr. 00034-01(WK) to an aggregate prison sentence of ten years to be followed by five years' probation for armed robbery of a U.S. Post Office, threatening a witness to induce the withholding of testimony, and using a firearm in relation to a crime of violence for an offense he committed in 1986. See Certificate of Paula Biderman, dated October 31, 2016 (''Biderman Cert."), Ex. 1 (Judgment and Commitment Order).

         When he committed the offense, Petitioner was on parole from a ten-year sentence imposed in 1982 by the Bronx Supreme Court for robbery and criminal use of a firearm. Biderman Cert., Ex. 2 (Presentence Report, or "PSR") at 6. He also had two robbery cases pending in the Bronx Supreme Court of the State of New York Court of the Bronx for offenses he committed on March 18, 1986. PSR at 7. The two robbery cases were consolidated, and on February 6, 1987, he pleaded guilty to attempted robbery in the Supreme Court and was sentenced to five to ten years' imprisonment to run concurrently with any federal time imposed. Biderman Cert., Ex. 3 (Prehearing Assessment) at 1. The State of New York lodged a parole violator detainer for the 1982 sentence and another detainer for the 1987 sentence. Biderman Cert., Ex. 4 (Bureau of Prisons ("BOP") Sentence Summary).

         On January 16, 1992, the Commission ordered that the Petitioner continue to serve through the expiration of his sentence due to the severity of the conduct for which he was incarcerated. Biderman Cert., Ex. 5 (Notice of Action). On February 2, 1993, Petitioner was released from federal custody by mandatory release under 18 U.S.C. § 4163, subject to the conditions of 18 U.S.C § 4164, with 1, 434 days remaining on his sentence. Biderman Cert., Ex. 6 (Certificate of Mandatory Release). The Petitioner was to remain subject to the 15 conditions of release until July 10, 1996. Id. Because of a detainer lodged by the New York State Department of Corrections, the BOP transported the Petitioner from the federal institution to the custody of the New York State Department of Corrections, where he remained in confinement until June 27, 1995. Biderman Cert., Ex. 7 (Criminal History Summary) at 10.

         On May 8, 1996, Petitioner's U.S. Probation Officer asked the Commission to issue a parole violator warrant. Biderman Cert., Ex. 8 (Violation Report). The Officer reported that Petitioner was arrested on September 8, 1995 by New York State authorities and charged with second degree attempted murder, first degree robbery, second degree burglary, second degree criminal possession of a weapon, and fourth degree criminal possession of stolen property. Id. Based on the new charges, the Commission issued a warrant on May 17, 1996, and instructed the U.S. Marshal to lodge the warrant as a detainer. Biderman Cert., Ex. 9 (Warrant Application and Warrant). On August 28, 1997, Petitioner was convicted of robbery, and the Bronx County Supreme Court sentenced him to imprisonment for 15 years to life. Biderman Cert., Ex. 10 (Bronx County Supreme Court Judgment and Warrant Application Supplement).

         On December 29, 2015, Petitioner was released from state custody and taken into custody on the Commission's warrant. Biderman Cert., Ex. 9 (Warrant Application and Warrant) at 3. The Commission supplemented the warrant on January 27, 2016 to reflect the state conviction. Biderman Cert., Ex. 10 (Bronx County Supreme Court Judgment and Warrant Application Supplement). The Commission found probable cause for the charged violation of robbery based on the new conviction. Biderman Cert., Ex. 11 (February 2, 2016 Probable Cause Letter).

         On February 12, 2016, the Commission provided Petitioner with an expedited revocation proposal to resolve the charges without a hearing. Biderman Cert., Ex. 12 (February 12, 2016 Letter and Response). The proposal would have resulted in revocation of Petitioner's mandatory release supervision, forfeiture of the time since his last release on supervision until the warrant was executed, and re-parole effective October 7, 2016, after service of 253 months. Id. Petitioner rejected the proposal. Id.

         The Commission provided the Petitioner an institutional revocation hearing on March 8, 2016. Biderman Cert., Ex. 13 (Hearing Summary). By notice of action dated March 24, 2016, the Commission revoked the Petitioner's parole (mandatory release), forfeited the time he had spent on federal parole, and ordered that Petitioner continue to serve through to the expiration of his sentence. Biderman Cert., Ex. 14 (Notice of Action).

         The Petitioner filed an administrative appeal of the decision to the Commission's National Appeals Board under 18 U.S.C. § 4215(b) and 28 C.F.R. § 2.26. Biderman Cert., Ex. 15 (Appeal). Among his claims, the Petitioner asserted that the Commission unlawfully denied him credit for the time he served in confinement on a state sentence from his mandatory release date of February 2, 1993 until June 27, 1995. Id. The Board affirmed the decision on September 28, 2016. Biderman Cert., Ex. 16 (Notice of Action on Appeal). The Board found that the decision was within the Commission's discretion and consistent with the Commission's policy. Id.

         Petitioner then filed the instant petition on September 16, 2016 (the "Petition"). Because Petitioner received a final decision from the National Appeals Board, he satisfied the requirement that he exhaust his administrative remedies before seeking relief under § 2241. See Carmona ...


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