PS5-044                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-2887
                                         ___________

                                RONALD RICHARD SMITH,
                                              Appellant

                                               v.

                         UNITED STATES PAROLE COMMISSION
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                           (D.C. Civil Action No. 3-15-cv-00892)
                              District Judge: William J. Nealon
                        ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   December 28, 2015
            Before: JORDAN, BARRY and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: December 29, 2015)
                                         ___________

                                          OPINION*
                                         ___________

PER CURIAM

         Ronald Richard Smith appeals the order of the District Court denying his request

for habeas corpus relief. We will affirm.


*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
       In 1982, Smith was sentenced to prison for 18 years for bank robbery and escape.

While he was on parole from that sentence, he was arrested for and convicted of a second

bank robbery. The United States Parole Commission (“Commission”) issued a warrant

charging Smith with violating the conditions of his parole, and that warrant was lodged as

a detainer while Smith served the sentence from the second bank robbery conviction.

        Once Smith completed that sentence, his parole was revoked, and he was ordered

to serve 133 months in prison. Smith was reparoled in 2003. However, in 2006, he was

again arrested and charged in connection with yet another bank robbery. The

Commission again issued a warrant, charging Smith with violating the conditions of

parole from his 1982 conviction. That warrant was lodged as a detainer while Smith

completed his prison sentence from the third bank-robbery conviction.

       On February 5, 2014, Smith completed that sentence and was taken into custody

on the Commission’s warrant. On May 22, 2014, about two weeks after the ninety-day

period prescribed in 18 U.S.C. § 4214(c), the Commission held a revocation hearing.

The Commission found that Smith violated the conditions of his parole from his 1982

conviction when he robbed a bank, and the Commission ordered that he remain in prison

until his original sentence expired.

       Smith, proceeding pro se, filed a petition for a writ of audita querela, which the

District Court treated as a petition for habeas corpus. Smith claimed that he was entitled



constitute binding precedent.
                                             2
to immediate release from prison because the Commission violated 18 U.S.C. § 4214(c)

when it failed to conduct his parole revocation hearing within 90 days after he was taken

into custody.

       The District Court dismissed Smith’s petition because Smith failed to show, as the

law required, that the brief delay prejudiced Smith. Smith timely appealed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the

decision to grant or deny a habeas petition.1 See Fowler v. U.S. Parole Comm’n, 94 F.3d

835, 837 (3d Cir. 1996).

       It is undisputed that the hearing was not held within ninety days after the warrant

was executed as required by 18 U.S.C. § 4214(c).2 The statute’s legislative history

explains that the remedy for such a violation is mandamus action to compel a hearing, not

release from custody. See Northington v. U.S. Parole Comm’n, 587 F.2d 2, 3 (6th Cir.

1978). Moreover, as the District Court explained, Smith was not entitled to habeas relief

because he did not establish prejudice stemming from the Commission’s brief delay in

holding a revocation hearing. See, e.g., Villarreal v. U.S. Parole Comm’n, 985 F.2d 835,

837 (5th Cir. 1993); Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983); Goodman

v. Keohane, 663 F.2d 1044,1046 (11th Cir. 1981). Smith did not allege that the delay


1
  The District Court correctly construed Smith’s petition for a writ of audita querela as a
habeas corpus petition filed pursuant to 28 U.S.C. § 2241. See United States v. Kennedy,
851 F.2d 689, 690 (3d Cir. 1988) (stating that a “challenge to the Parole Commission’s
execution of a sentence is properly raised in a habeas corpus petition under [] § 2241.”).
2
  This provision has been repealed but remains in effect as to an individual, like Smith,
                                             3
was prejudicial. And for the reason given by the District Court—that the Commission

revoked Smith’s parole because he was convicted of robbing a bank while on parole from

an earlier bank-robbery conviction—the delay did not prejudice Smith at the revocation

hearing.

       Accordingly, we will affirm the judgment of the District Court.3




who committed an offense before November 1, 1987.
3
  Smith’s motion for leave to file a supplemental brief is denied.
                                             4
