                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA


 DANIEL ERWIN DAVIS,                          )
                                              )
                     Petitioner,              )
                                              )
               v.                             )
                                              )       Civ. Action No. 13-0413 (ABJ)
UNITED STATES PAROLE                          )
COMMISSION,                                   )
                                              )
                Respondent.                   )
_________________________________             )


                                   MEMORANDUM OPINION

       Petitioner is a prisoner at the Federal Correctional Institution in Sandstone, Minnesota.

He seeks a writ of mandamus to compel the United States Parole Commission (“the

Commission”), as the supervising authority over federal parolees, to conduct a parole revocation

hearing on an unexecuted parole violator warrant. Since petitioner is not entitled to the requested

relief, and the Commission has taken steps to provide the proper relief, the Court will deny the

petition and dismiss the case.

                                        BACKGROUND

       On September 24, 1985, the United States District Court for the District of Colorado

sentenced petitioner to an aggregate prison sentence of 8 years, 6 months. See Resp’t’s Ex. A.

Petitioner was released to parole supervision in South Dakota on September 25, 1990, with a

sentence expiration date of April 25, 1994. Ex. B. On March 4, 1994, the Commission issued a

parole violator warrant, charging petitioner with, among other violations, a law violation due to his

arrest on February 24, 1994, in South Dakota and resulting state charges of conspiracy to distribute
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a controlled substance and distribution of a controlled substance. 1 Ex. C. The Commission’s

warrant was forwarded to the United States Marshals Service in the District of South Dakota with

instructions that it be held in abeyance pending further instructions.        In an accompanying

Memorandum, the Commission highlighted the fact that petitioner was “awaiting trial or

sentencing on new charges” and instructed that the Marshals Service “not execute the warrant if

the parolee is released on bond” and that it not file a detainer. Id. On April 28, 1994, petitioner

was released on bond, but his bond was forfeited when he failed to appear for a motion hearing on

May 5, 1994. See Ex. D.

       On June 18, 1998, petitioner was indicted in the United States District Court for the District

of South Dakota for the same conduct underlying the state drug charges, see Ex. E, and an arrest

warrant was issued on June 22, 1998, Ex. F. By then, petitioner “had absconded from his parole

jurisdiction,” Pet. at 3, and was not arrested on the federal court’s warrant until March or April

2007 when he “was retaken in Venezuela.” Id.; Resp’t’s Exs. G, G-1. On May 22, 2007, the

Commission informed the Marshals Service in South Dakota that petitioner was “awaiting trial

and sentencing on new charges” and provided updated instructions with regard to the March 1994

parole violator warrant to “place a detainer and assume custody when released.” Resp’t’s Ex. H.

       Petitioner pleaded guilty in the federal case and was sentenced on September 10, 2008, to

his current sentence of 120 months’ imprisonment and three years’ supervised release. Ex. I.

The Commission supplemented the parole violator warrant on April 27, 2009, to reflect the latter



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    “The statute from which the U.S. Parole Commission's authority over parolees derives is 18
U.S.C. § 4210. Despite the effective repeal of that statute in 1984, Congress has consistently
extended the time period that the chapter remains in effect,” Owens v. Gaines, 219 F. Supp. 2d 94,
99 (D.D.C. 2002), the latest being until 2018, “thirty-one years after Nov. 1, 1987,” Pub.L. 98-473,
Title II, § 235.
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conviction, Ex. C., and has lodged the parole violator warrant with petitioner’s institution as a

detainer. See Ex. A at 1, 4.

       Petitioner commenced this mandamus action in March 2013 to compel a hearing under 18

U.S.C. § 4214(c) (1976) (repealed 1984). The Commission filed its response to the court’s show

cause order on October 30, 2013, and the petitioner filed his reply on January 9, 2014.

Meanwhile, in September 2013, the Commission informed petitioner’s warden of its decision to

conduct a dispositional review of the detainer (to determine whether or not it should remain

lodged) and provided a form for petitioner’s response and a form for petitioner to request the

assistance of appointed counsel. Resp’t’s Ex. J. Neither party has supplied an update of that

proceeding.

                                         DISCUSSION

       The extraordinary remedy of a writ of mandamus is available to compel an "officer or

employee of the United States or any agency thereof to perform a duty owed to plaintiff." 28

U.S.C. ' 1361. The petitioner bears a heavy burden of showing that his right to a writ of

mandamus is "clear and indisputable" and such relief “is hardly ever granted.” In re Cheney,

406 F.3d 723, 729 (D.C. Cir. 2005) (citation omitted). “[E]ven if the plaintiff overcomes [the]

hurdles, whether mandamus should issue is discretionary.” Id.

       The Commission argues first that this action sounds in habeas because petitioner seeks to

shorten his sentence. Resp’t’s Opp’n at 4-6. Indeed, petitioner introduces this action as seeking

“to compel [the Commission] to either rule on his motion pending before [it] seeking the

imposition of concurrent sentencing . . . or alternatively to conduct a revocation hearing . . . .”

Pet. at 1. Hence, the Commission’s argument is not without a basis. In his reply, however,


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petitioner states that he is not “seeking an order to shorten his sentence, or have his sentences run

concurrently, or compel the execution of his parole violation warrant, or redress the conditions of

his confinement,” Pet’r’s Reply at 1, but rather that he has “asked only for the revocation hearing

to which he is entitled.” Id. at 2. Upon this clarification, then, petitioner is correct in seeking a

writ of mandamus. See Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (finding that

the appropriate remedy for a delayed parole revocation hearing “is a writ of mandamus to compel

the Commission’s compliance with the statute not a writ of habeas corpus to compel release on

parole or to extinguish the remainder of the sentence” (emphasis in original)). So the question is

whether petitioner is entitled to the requested parole revocation hearing.

       Anyone taken into custody by a parole violator's warrant must “ ‘receive a revocation

hearing within ninety days’.” Sutherland, 709 F.2d at 732, quoting 18 U.S.C. § 4214(c) (1976).

But the hearing requirement is not triggered until the parolee has been arrested on the parole

violator warrant. See Moody v. Daggett, 429 U.S. 78, 87 (1976) (“[T]he loss of liberty as a parole

violator does not occur until the parolee is taken into custody under the warrant.”). The record

shows that petitioner was arrested in 2007 not on the Commission’s warrant as he contends, Pet’r’s

Reply at 3, but on the federal court’s arrest warrant issued for the new criminal charges. See

Rep’t’s Ex. G, G-1. Since petitioner is currently serving the sentence that resulted from those

charges, his “present confinement and consequent liberty loss derive not in any sense from the

outstanding parole violator warrant, but from his [2008 conviction].” Moody, 429 U.S. at 86.

       After this action was filed, the Commission took steps to comply with section 4214(b)(1).

The statute provides:

          In cases in which a parolee has been convicted of such an offense and is
          serving a new sentence in an institution, a parole revocation warrant or

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           summons issued pursuant to section 4213 may be placed against him as a
           detainer. Such detainer shall be reviewed by the Commission within one
           hundred and eighty days of notification to the Commission of placement. The
           parolee shall receive notice of the pending review, have an opportunity to
           submit a written application containing information relative to the disposition
           of the detainer, and, unless waived, shall have counsel as provided in
           subsection (a)(2)(B) of this section to assist him in the preparation of such
           application.

18 U.S.C. § 4214(b)(1).       In a letter to petitioner’s warden dated September 3, 2013, the

Commission states that it was advised by the Marshals Service that the violator warrant “has been

placed as a detainer at your institution” and that pursuant to § 4214(b)(1), it “will conduct an on the

record dispositional review . . . to determine whether the violator warrant should remain as a

detainer.” Resp’t’s Ex. J. The Commission enclosed forms for the warden to complete with

regard to petitioner’s sentence “and institutional adjustment” and forms for petitioner to use if he

wished to comment on “the disposition of the detainer” and to request the assistance of appointed

counsel under the Criminal Justice Act.        Id.    Now that the Commission has initiated the

procedures called for by the statute, no basis exists for issuing a writ to compel the same action.

                                          CONCLUSION

       The Court concludes that petitioner is not entitled to the requested mandamus relief since

the Commission has no duty to hold a parole revocation hearing on a violator warrant that has yet

to be executed. In addition, the Commission otherwise has taken steps to address the continued

viability of the detainer about which petitioner complains. Accordingly, the mandamus petition




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will be denied, and this action will be dismissed.   A separate order accompanies this

Memorandum Opinion.




                                              AMY BERMAN JACKSON
                                              United States District Judge
Date: June 11, 2014




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