                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-2006

Morabito v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3811




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Recommended Citation
"Morabito v. US Parole Comm" (2006). 2006 Decisions. Paper 1067.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1067


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                    NO. 05-3811
                          _______________________________

                                 DONALD MORABITO,
                                            Appellant

                                            v.

                      UNITED STATES PAROLE COMMISSION
                       ___________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                              (D.C. Civ. No. 04-cv-03521)
                       District Judge: Honorable Louis H. Pollak
                    ______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 22, 2006

          BEFORE: McKEE, FUENTES and NYGAARD, CIRCUIT JUDGES

                                 (Filed : May 22, 2006)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Donald Morabito was convicted of twenty-four counts of armed robbery and two

counts of bank robbery in the United States District Court for the Western District of

Louisiana and, in 1981, was sentenced to an aggregate term of 50 years imprisonment.

On June 6, 1996, the United States Parole Commission (“the Commission”) released
Morabito on parole. Morabito was scheduled to remain under parole supervision until

February 9, 2031. On August 13, 2001, the Commission ordered that Morabito’s five-

year parole termination hearing be conducted pursuant to 18 U.S.C. § 4211(c)(1).1 In

April 2002, before the hearing could take place, Morabito absconded from parole

supervision. Accordingly, the Commission issued a warrant charging Morabito with

violating the conditions of his parole by failing to: report to his probation officer as

directed; report a change in employment; submit supervision reports; and report a change

in residence. Nine months later, in January 2003, Morabito was charged by the

Commonwealth of Pennsylvania with nine counts each of theft, theft by deception, theft

by receiving stolen property, unlawful use of a communication facility, and unlawful use

of a computer. After Morabito was arrested on May 17, 2004 in connection with the state

charges, the federal warrant was placed as a detainer. On April 12, 2005, the United

States Marshal’s Service executed the federal warrant and took Morabito into custody.

       In the meantime, Morabito filed the underlying 28 U.S.C. § 2241 petition in the

United States District Court for the Eastern District of Pennsylvania in June 2004. In his

petition, Morabito alleged that the Commission violated his due process rights by failing

to timely hold a five-year termination hearing pursuant § 4211(c)(1). The Magistrate

Judge assigned to Morabito’s case concluded that his claim lacked merit and



       1
          Section 4211(c)(1) is part of the Parole Commission and Reorganization Act
(“Parole Act”). The Parole Act was repealed effective November 1, 1987, but remains in
effect as to any individual who committed an offense on or before November 1, 1987.
Benny v. United States Parole Comm’n, 295 F.3d 977, 981 n. 2 (9th Cir. 2002). Because
Morabito was sentenced in 1981, there is no question that the Parole Act applies to him.
recommended that his § 2241 petition be denied. Without adopting or rejecting the report

and recommendation, the District Court dismissed Morabito’s § 2241 petition as moot by

order entered July 21, 2005. This timely appeal followed.

         We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s decision to dismiss Morabito’s § 2241 petition is plenary. See Cradle v.

U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). We may affirm on any grounds

supported by the record. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en

banc).

         Section 4211(c)(2) provides that “[f]ive years after each parolee’s release on

parole, the Commission shall terminate supervision over such parolee unless it is

determined, after a hearing . . . that such supervision should not be terminated because

there is a likelihood that the parolee will engage in conduct violating any criminal law.”

18 U.S.C. § 4211(c)(2). On July 19, 2005, Morabito received an early termination

hearing, as well as a parole revocation hearing. Thus, to the extent that Morabito

requested an early termination hearing in his § 2241 petition, we agree with the District

Court that his claim is moot. See generally Powell v. McCormack, 395 U.S. 486, 496

(1969) (“a case is moot when the issues presented are no longer ‘live’ or the parties lack a

legally cognizable interest in the outcome”); Blanciak v. Allegheny Ludlum Corp., 77

F.3d 690, 698-99 (3d Cir. 1996) (“If developments occur during the course of

adjudication that eliminate a plaintiff’s personal stake in the outcome of a suit or prevent

a court from being able to grant the requested relief, the case must be dismissed as

moot.”). Moreover, to the extent that Morabito contends that the failure of the
Commission to conduct a timely early termination hearing entitles him to “a judicial order

terminating [his] parole supervision,” his claim clearly lacks merit. The remedy for a

procedural violation of § 4211(c)(2) is not the termination of parole, but rather, a properly

considered decision by the Commission. See, e.g., Benny, 295 F.3d at 982; Sacasas v.

Rison, 755 F.2d 1533 (11th Cir. 1985); Penix v. United States Parole Comm’n, 979 F.2d

386 (5th Cir. 1992); United States ex. rel. Pullia v. Luther, 635 F.2d 612 (7th Cir. 1980)

(explaining that parole supervision does not automatically terminate when the

Commission fails to make an early release determination five years after parole release).

Because Morabito’s early termination hearing has been conducted, he has obtained the

relief to which he is entitled under § 4421(c)(2).

       Furthermore, Morabito’s contention that his current custody is the result of the

Commission’s unlawful delay lacks merit. In short, Morabito’s belief as to what the

Commission would have considered and decided at a hearing in June 2001 is insufficient

to establish a causal link between the Commission’s failure to hold a timely early

termination hearing and his custody. See Benny, 295 F.3d at 988-89. Likewise, we have

little difficulty concluding that Morabito’s allegations of bad faith and retaliation are

based on nothing more than speculation and conjecture.

       For the foregoing reasons, we will affirm the District Court’s July 21, 2005, order.
