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stating that an inmate does not have a constitutional right to specific rehabilitative programs
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01 Civ. 7364 (FM)
September 23, 2002
OPINION AND ORDER
I. Introduction
On June 25, 2001, petitioner George Chapdelaine, who was then incarcerated at the Federal Correctional Institution ("ECI") in Otisville, New York, commenced this proceeding. Chapdelaine's petition seeks a writ of mandamus compelling the Commissioner of the United States Parole Commission ("Parole Commission") to (a) furnish him with information regarding the basis for its decision to allow a parole violation warrant to stand as a detainer against him after a dispositional review, and (b) conduct a parole revocation hearing. (Pet'r's Mem. of L. in Supp. of Pet. ("Pet'r's Mem.") at 16). The petition also seeks to compel the Parole Commission to credit Chapdelaine for certain time spent in custody on an unrelated offense and, on that basis, to discharge him from parole immediately. (Id.). The Respondents have filed a motion for summary judgment contending that Chapdelaine's petition is moot, that he failed to exhaust his administrative remedies, and that his claims lack merit. (Docket No. 18). For the reasons set forth below, the Respondents' summary judgment motion is granted.
Following a dispositional review, the Commission may let the warrant stand as a detainer or decide to withdraw the warrant and order reinstatement to parole supervision. The inmate is invited to submit comments for consideration as part of the review.
II. Background
The following factual recitation is based upon Chapdelaine's petition and the parties' submissions in connection with the motion for summary judgment. Unless otherwise noted, the facts have been set forth in the light most favorable to Chapdelaine.
A. Relevant Facts
1. Conviction History
On October 18, 1985, Chapdelaine was sentenced to a twelve-year term of imprisonment and fined $10,000 following his conviction in the District of Rhode Island on one count of possession of cocaine with intent to distribute it. (Decl. of AUSA Megan Brackney, dated June 28, 2002 ("Brackney Decl."), Ex. A (Parole File) at 1). After serving nearly four years of that term, Chapdelaine was released on parole on July 17, 1989, with his supervision scheduled to continue until the expiration of his sentence on May 13, 1997. (Id. 16).
On March 29, 1991, while he was on parole, Chapdelaine was arrested in the District of Rhode Island on various charges, including conspiracy to rob a bank, carrying a firearm during a crime of violence, and possession of a firearm with an obliterated serial number. (Pet'r's Mem. at 1-2; Brackney Decl. Ex. A at 18). On March 18, 1992, following a trial, he was sentenced to concurrent terms of imprisonment aggregating 78 months on numerous counts and a consecutive five-year term on a weapons count. (Pet'r's Mem. at 1-2; Brackney Decl. Ex. A at 19).
2. Parole Violation Warrant
The Parole Commission was advised of Chapdelaine's 1992 conviction on August 1, 1994. (Brackney Decl. Ex. A at 22). On August 11, 1995, the Parole Commission issued a parole violation warrant for Chapdelaine, which was forwarded to FCI Ray Brook, where he was serving the sentence arising out of his 1992 conviction. (Pet'r's Mem. at 2; Brackney Decl. Ex. A at 23). In both its original transmittal letter and a subsequent letter dated February 15, 1996, the Parole Commission instructed the Warden to "place the warrant as a detainer." (Brackney Decl. Ex. A at 23, 26-27). The second letter also instructed the Warden to provide Chapdelaine with a copy of the warrant application and notification that an on-the-record "dispositional review" would be held. (Id. at 26). The second letter contained a form application for a dispositional review and another form that Chapdelaine could submit to request the appointment of counsel. (Id. at 26-30).
On February 27, 1996, the Bureau of Prisons notified the Parole Commission that the warrant had been lodged as a detainer, but Chapdelaine evidently never received a copy of the warrant application or forms that had been sent to FCI Ray Brook. (Pet'r's Mem. at Exs. C (Chapdelaine's handwritten note on Parole Commission's February 15, 1996 letter), D (February 27, 1996 Detainer Action Letter from FCI Ray Brook to the Parole Commission)).
On or before March 4, 1997, Chapdelaine was transferred from FCI Ray Brook to FCI McKean. (Id. Ex. E (March 4, 1997 Detainer Action Letter from FCI McKean to Parole Commission)). Thereafter, on or about July 16, 1997, the Parole Commission forwarded its warrant to FCI McKean, together with a form for Chapdelaine to complete in connection with the on-the-record dispositional review. (Pet'r's Mem. at 3 Exs. F, G; Brackney Decl. Ex. A at 35-39). Chapdelaine maintains that he first received these materials on September 23, 1997, during the course of a classification review. (Pet'r's Mem. Ex. G). Thereafter, on or about October 29, 1997, Chapdelaine apparently completed the application for a dispositional review and returned it to the Parole Commission. (Id. Ex. I (letter dated October 29, 1997 from Chapdelaine to Sharon A. Gervasoni of the Parole Commission); Brackney Decl. Ex. A at 39).
On November 19, 1997, a Parole Commission examiner conducted a dispositional review and recommended that the detainer against Chapdelaine be permitted to stand. (Brackney Decl. Ex. A at 40-41). The Parole Commission adopted this recommendation on November 24, 1997, (id. at 41), advising Chapdelaine of its decision by Notice of Action dated December 5, 1997. (Pet'r's Mem. at 3 Ex. J).
Chapdelaine alleges that he never received a copy of this notice, although the copy accompanying his petition indicates that it was faxed to FCI McKean on December 6, 1997. (Compare Pet'r's Mem. Ex. J with Alan Ellis and Samuel Shummon, Federal Prison Guidebook 185 (2000) (setting forth the fax number for FCI McKean).
3. Habeas Petition
On January 18, 2000, in the United States District Court for the Middle District of Pennsylvania, Chapdelaine filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. In that petition, Chapdelaine contended that the placement of the parole violation warrant as a detainer negatively impacted his security classification and prevented his participation in a community placement program. (See Brackney Decl. Ex. B at 3 (Report and Recommendation of the Hon. Raymond J. Durkin, United States Magistrate Judge, dated Aug. 22, 2000)). Chapdelaine also argued that the Parole Commission had violated his due process rights by failing to provide a parole revocation hearing within 120 days after it was notified that the warrant had been placed as a detainer. (Id.). This petition subsequently was dismissed on the merits. (Brackney Decl. Ex. C (Memorandum and Order of the Hon. Edwin M. Kosik, United States District Judge, dated Sept. 28, 2000) (adopting Magistrate Judge Durkin's recommendation)).
Chapdelaine contends that his claims in this habeas proceeding were dismissed on mootness grounds. (Pet'r's Opp'n Mem. at 6; Chapdelaine Affidavit, sworn to on July 26, 2002, at 2). The court did dismiss Chapdelaine's "Motion to Move this Court to Act on this Procedure Before His Time Runs Out to Allow Him Home Confinement," as moot because expedited judicial review was no longer necessary once a decision was rendered. (See Brackney Decl. Exs. B at 5-6, C at 3). Both Magistrate Judge Durkin's Report and Recommendation and Judge Kosik's Order adopting it clearly state, however, that Chapdelaine's substantive claims lacked merit. (See id. Exs. B at 4-6, C at 2).
4. Parole Revocation
The parole warrant was executed by the Warden of FCI Otisville on April 23, 2001, the date that Chapdelaine completed his term of imprisonment on the 1992 conviction. (Pet'r's Mem. Ex. Z (Response to Chapdelaine's May 1, 2001 Inmate Request to Staff); Brackney Decl. Ex. A at 45 (Revocation Hearing Summary)). Throughout the remainder of April and May 2001, Chapdelaine sent various letters and requests to Bureau of Prison staff seeking information as to why he had not been released. (See Pet'r's Mem. at 5-6 Exs. R-Z, AA, CC, DD). On May 22, 2001, the Warden of FCI Otisville sent Chapdelaine a letter indicating that the failure to release him was attributable to the execution of the parole warrant. (See id. at 6).
On July 24, 2001, the Parole Commission conducted a parole revocation hearing, at which Chapdelaine was present and given an opportunity to be heard. (Brackney Decl. Ex. A at 45-48). After the hearing, Parole Commission Examiner Kevin Walker recommended that Chapdelaine's parole be revoked, that he not receive any credit for time previously spent on parole, and that he be released on December 23, 2001, after serving a total of 129 months. (Id. at 47). The Parole Commissioner adopted these recommendations, and Chapdelaine was notified of the decision by Notice of Action dated August 23, 2001. (Id. at 49-50). Although the notice also advised Chapdelaine of his right to appeal the Parole Commissioner's decision to the National Appeals Board, (id. at 49), he apparently never filed an appeal. (See Resp't's Rule 56.1 Statement ¶ 29; Decl. of Douglas W. Thiessen, dated June 12, 2002 (Docket No. 22), ¶ 3).
5. Release on Parole
Chapdelaine was released on parole to the Eastern District of North Carolina on December 21, 2001. Pursuant to the terms of his release, he will remain under supervision until February 16, 2009. (Brackney Decl. Ex. A at 52).
B. Present Proceeding
Chapdelaine submitted his present petition to this Court's Pro Se Office on or about June 25, 2001. (See Docket No. 1). This was approximately one month prior to the date of his parole revocation hearing. In his petition, Chapdelaine sought to compel the Warden of FCI Otisville to deliver him to the custody of the Parole Commission. (See Pet'r's Mem. at 16). In addition, Chapdelaine asked that the Court compel the Parole Commission to (i) provide him with a digest of the dispositional review and the reasons for the Commissioner's decision to let the detainer stand, (ii) commence an immediate revocation hearing, (iii) credit the time that Chapdelaine spent in custody on his second conviction against the time remaining on his parole for his first conviction, and (iv) issue a certificate of discharge from parole dated May 13, 1997. (Pet'r's Mem. at 16). Chapdelaine's petition contends that the Respondents violated his Fifth Amendment right to due process by failing to hold a timely dispositional review of the detainer, failing to disclose the basis for the Parole Commission's decision to let the detainer stand, and failing to hold a timely parole revocation hearing. (Id. at 7-12; see also Pet'r's Opp'n Mem. at 2-4, 8). Chapdelaine further contends that the Parole Commission forfeited its jurisdiction over him by reason of its failure to hold a timely revocation hearing. (Pet'r's Mem. at 11-12; Pet'r's Opp'n Mem. at 3). Finally, Chapdelaine alleges that the Warden of FCI Otisville lacked jurisdiction to execute the parole warrant. (Pet'r's Mem. at 11-13; Pet'r's Opp'n Mem. at 6).
On or about August 21, 2001, Chapdelaine sent the Pro Se Office of this Court a motion to amend his petition. (See Docket No. 5). The motion sought to assert claims against his "unit team" because team members allegedly had conspired to delay Chapdelaine's release. (Id. at 1). On or about January 2, 2002, however, Chapdelaine wrote to the Court to indicate that he wished to dismiss the petition against the unit team and proceed only with the original petition. (See Docket No. 10). Therefore, I have addressed only the claims made by Chapdelaine against the defendants listed in his original petition.
Chapdelaine's petition does not seek any damages. (See Rebuttal to Answer at 4).
After the Respondents filed their Answer to the Petition on February 11, 2002, (Docket No. 11), Chapdelaine filed a Rebuttal on March 1, 2002 (Docket No. 13). Subsequently, on June 28, 2002, the Respondents filed a motion for summary judgment, (Docket No. 18), in which they argue that Chapdelaine's petition is moot (Resp't's Mem. at 6-7). The Respondents also contend, in the alternative, that Chapdelaine's challenge to the parole revocation could have been raised only in a habeas petition and, therefore, fails because he has not exhausted his administrative remedies. (Id. at 7-8). Finally, the Respondents argue that Chapdelaine's petition also fails on the merits. (Id. at 9-14).
On May 30, 2002, before filing their summary judgment motion, the Respondents filed a suggestion of death pursuant to Fed.R.Civ.P. 25 (a). (Docket No. 15). The Respondents subsequently learned that Chapdelaine's brother was the decedent.
On July 12, 2002, Chapdelaine filed a memorandum of law in opposition to the Respondents' motion, in which he reiterates the claims in his petition. (Docket No. 25). On July 31, 2002, Chapdelaine also filed a sworn affidavit and objections which essentially reiterate the points made in his July 12th response. (Docket Nos. 26, 27).
In July 2002, the parties consented to my jurisdiction to hear and determine this matter pursuant to 28 U.S.C. § 636 (c). (Docket No. 23).
III. Discussion
A. Standard of Review
1. Summary Judgment
Summary judgment is appropriate only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2253, 91 L.Ed.2d 265 (1986). If the court concludes that "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial,'" and summary judgment must be granted. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 569 (1986) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592, 20 L.Ed.2d 569 (1968)).
In deciding a motion for summary judgment, the court must "view the evidence in the light most favorable to the party against whom summary judgment is sought and . . . draw all permissible inferences in favor of that party." Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997). The Court must accept as true the non-moving party's evidence, if supported by affidavits or other evidentiary material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Thus, "[t]he court's function is not to resolve disputed issues of fact but only to determine whether there is a genuine issue of material fact to be tried." Fischl, 128 F.3d at 55. Accord Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2510. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id., 477 U.S. at 249-50, 106 S.Ct. at 2511. Accord Cities Serv. Co., 391 U.S. at 290, 88 S.Ct. at 1593;Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967).
Although the same summary judgment rules are applicable when a party is proceeding pro se, special latitude is appropriate to ensure that a meritorious claim is not foreclosed simply because the papers submitted in opposition to the motion are inartfully worded. See Morris v. Citibank, N.A., No. 97 Civ. 2127, 1998 WL 386175, at *2 (S.D.N.Y. July 8, 1998) (Koeltl, J.). See also Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976) (pro se complaint should be held to less stringent standard than formal pleadings drafted by counsel);McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (pleadings should be read liberally and interpreted to "raise the strongest arguments they suggest") (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). But, "a pro se party's `bald assertion,' completely unsupported by evidence, is not sufficient to overcome a motion for summary judgment."Odom v. Keane, No. 95-9941, 1997 WL 576088, at *3 (S.D.N.Y. Sept. 17, 1997) (Sotomayor, J.) (quoting Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991)). Accord Jorgensen v. Careers BMG Music Publ'g, 2002 WL 1492123, at *3 (S.D.N.Y. July 11, 2002) (Preska, J.).
B. Mandamus
Pursuant to 28 U.S.C. § 1361, "[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." A petitioner seeking a writ of mandamus must demonstrate: (1) a "clear right" to the relief sought; (2) "a plainly defined and peremptory duty on the defendant's part to do the act in question;" and (3) "lack of another available, adequate remedy."Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 946 (2d Cir. 1976).
If an officer or agency performs the duty allegedly owed to the petitioner after a petition for a writ of mandamus has been filed, the petition becomes moot. See, e.g., Barrett v. United States, 105 F.3d 793, 794 (2d Cir. 1996) (declaring petition to compel ruling moot because district court had already disposed of motion); O'Connell v. Massanari, No. 99-4897, 2001 WL 611333, at *6 (S.D.N.Y. June 4, 2001) (Schwartz, J.) (mandamus petition mooted by Social Security Administration decision). Here, Chapdelaine's petition seeks a writ of mandamus to compel the Parole Commission to conduct a parole revocation hearing and the Warden of FCI Otisville to thereafter deliver him into the custody of the Parole Commission. (Pet'r's Mem. at 16). These aspects of Chapdelaine's petition are moot because the Parole Commission held the requested revocation hearing on July 24, 2001, and Chapdelaine was thereafter released on parole on December 21, 2001. The petition also is moot insofar as it seeks to compel the Parole Commission to provide Chapdelaine with a "digest of the dispositional review with full disclosure of the statement of reasons for the actions taken, and all evidence relied on, complete with witness statements and other evidence." (Id.). In their motion papers, the Respondents have provided both the Court and Chapdelaine with a copy of the Dispositional Review Order, which includes a statement of the Parole Commission's reasons for letting the detainer stand. (See Brackney Decl. Ex. A at 40-41).
Chapdelaine also seeks an order requiring that the time served on his 1992 conviction be credited against the parole time remaining on his 1985 conviction and that the Parole Commission issue a certificate of discharge from parole dated May 13, 1997. (Pet'r's Mem. at 16). These aspects of his petition are not moot, but fail to satisfy other requirements for the issuance of a writ of mandamus. For example, Chapdelaine has not cited, nor is the Court aware of, any statute or regulation that requires the Parole Commission to credit time served on one conviction against the parole time that remains outstanding on a separate conviction. Indeed, it is Parole Commission policy not to count such time:
[I]f a parolee has been convicted of a new offense committed subsequent to his release on parole, which is punishable by any term of imprisonment, detention, or incarceration in any penal facility, forfeiture of time from the date of such release to the date of execution of the warrant is an automatic statutory penalty, and such time shall not be credited to the service of the sentence.28 C.F.R. § 2.52 (c)(2). See also 18 U.S.C. § 4210 (b)(2) ("in the case of a parolee who has been convicted of any criminal offense committed subsequent to his release on parole, and such offense is punishable by a term of imprisonment . . . the Commission shall determine . . . whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense"). Chapdelaine therefore has not shown that he has a "clear right" to a credit against his parole term for the time served on his new conviction, or that the Respondents had a "plain duty" to grant such a credit or issue him a certificate of completion of parole.
Additionally, because Chapdelaine's claims challenge the duration of the Parole Commission's custody, this proceeding should have been brought as a petition for a writ of habeas corpus. See Hili v. Sciarrotta, 140 F.3d 210, 216 (2d Cir. 1998) (prisoner challenging denial of parole must do so through a writ of habeas corpus); Reed v. Callender, No. 99-1710, 1999 WL 33100655, at *2 (E.D.N.Y. Aug. 2, 1999) (prisoner challenging fact or duration of parole is challenging custody and must do so by seeking a writ of habeas corpus). Cf. Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 1840, 36 L.Ed.2d 439 (1973) ("when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus");Carmona v. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (challenge to the execution of a federal sentence is properly brought as a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241). Nevertheless, even if Chapdelaine's papers were construed as a habeas petition, he would not be entitled to any relief. It is settled law that a habeas petitioner must exhaust his administrative remedies before seeking judicial relief. See Carmona, 243 F.3d at 634 ("federal prisoners must exhaust their administrative remedies prior to filing a petition for habeas relief"); Guida v. Nelson, 603 F.2d 261, 262-63 (2d Cir. 1979) (federal prisoner challenging parole revocation must exhaust administrative remedies before seeking habeas relief); Quinn v. Menifee, No. 99-3621, 2000 WL 680360, at *2 (S.D.N.Y. May 25, 2000) (Koeltl, J.) (federal prisoner seeking transfer to state custody on medical grounds must first exhaust administrative remedies). Since Chapdelaine did not appeal the revocation of his parole to the National Appeals Board, he has failed to exhaust his remedies; the Court therefore lacks jurisdiction even if his petition is treated as a habeas petition.
C. Merits of Chapdelaine's Due Process Claims
Even if the Court were to reach the merits of Chapdelaine's claims, he plainly would not be entitled to any relief.
1. Dispositional Review
Having been sentenced to a five-year mandatory sentence for carrying a firearm during a crime of violence, (see Brackney Decl. Ex. A at 18, 19), Chapdelaine was ineligible for parole. 18 U.S.C.A. § 924(a)(4). Pursuant to Parole Commission regulations, if a detainer has been placed against a parolee who is serving a new sentence in a federal institution, but who is not eligible for parole on that sentence,
the violation warrant shall be reviewed by the Regional Commissioner not later than 180 days following notification to the Commission of such placement. The Parolee shall receive notice of the pending review, and shall be permitted to submit a written application containing information relative to the disposition of the warrant. He shall be notified of his right to request counsel under the provisions of § 2.48(b) to assist him in completing this written application.28 C.F.R. § 2.47 (a)(2). See also id. § 2.47(a)(1).
Here, the Parole Commission was notified on or about February 27, 1996 that its warrant had been lodged as a detainer against Chapdelaine. (Pet'r's Mem. Ex. D). Despite that notice, however, the Parole Commission did not conduct the required dispositional review until November 19, 1997, nearly eighteen months later. (See Brackney Decl. Ex. A at 40-41). The review was clearly untimely.
Chapdelaine contends that the Parole Commission's delay in the interim violated his due process rights because it made him ineligible to participate in a community placement program. (Pet'r's Mem. at 14). However, it is well-established that "prisoners do not have constitutional rights to particular classifications or to eligibility for [particular] rehabilitative programs." Deutsch v. United States, 943 F. Supp. 276, 280 (W.D.N.Y. 1995) (quoting Ortiz v. Immigration and Naturalization Serv., No. 93-0089, 1993 WL 102831, at *2 (N.D. Cal. Mar. 22, 1993)). See also Moody v. Daggett, 429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 279, n. 9, 50 L.Ed.2d 236 (1976) ("Congress has given Federal prison officials full discretion to control these conditions of confinement, 18 U.S.C. § 4081, and petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process."). Consequently, the fact that Chapdelaine was unable to participate in a community placement program does not constitute a denial of due process.
Chapdelaine also contends that he might have been able to serve some of his parole time concurrently with his drug sentence had the dispositional review occurred at an earlier date. (Pet'r's Mem. at 14). As set forth above, however, the Parole Commission typically does not count the time that a parolee serves in prison for a subsequent offense as time served on parole on the original offense. See 28 C.F.R. § 2.52 (c)(2). Accordingly, Chapdelaine cannot show that the failure to conduct a timely dispositional review increased the total amount of time that he spent in jail.
Chapdelaine also argues that he was never advised of the date on which the dispositional review would be conducted. (Pet'r's Mem. at 9). However, the Parole Commission is not required to notify a parolee of the specific date for the review. Instead, the parolee need only be advised that a review is pending, that he is "permitted to submit a written application containing information relative to the disposition of the warrant," and that he has the right to request counsel to help him with the application. 28 C.F.R. § 2.47 (a)(2). Here, Chapdelaine received the requisite notice and responded before the date that the dispositional review was held. Chapdelaine therefore has not demonstrated that he was in any way harmed by the failure to advise him of the precise date that the review would occur.
2. Parole Revocation Hearing
Chapdelaine further contends that his due process rights were violated because the Parole Commission failed to conduct a timely parole revocation hearing. Pursuant to 18 U.S.C. § 4214 (c) and 28 C.F.R. § 2.49 (e), the Commission must hold a revocation hearing within 90 days after a parole warrant is executed. Here, the warrant was executed on April 23, 2001, when Chapdelaine completed his sentence on the 1992 conviction. (Pet'r's Mem. Ex. Z; Brackney Decl. Ex. A at 45). His parole revocation hearing was held on July 24, 2001, approximately 92 days after the warrant was executed. (See Brackney Decl. Ex. A at 45).
Chapdelaine also claims that the Parole Commission failed to provide him with timely notification of its reasons for revoking his parole. (Pet'r's Mem. at 10-11). At the time that Chapdelaine's petition was filed, however, his parole had not yet been revoked. After the July 24, 2001 revocation hearing, the Parole Commission sent Chapdelaine a Notice of Action on August 23, 2001, which set forth the Commissioner's decision and the reasons therefor. (Brackney Decl. Ex. A at 49-50).
A two-day delay, by itself, is not sufficient to establish a due process violation. Rather, Chapdelaine must demonstrate that the delay was both unreasonable and prejudicial. See Heath v. U.S. Parole Comm'n, 788 F.2d 85, 89-90 (2d Cir. 1986) (citations omitted); United States ex rel. Blassingame v. Gengler, 502 F.2d 1388, 1388 (2d Cir. 1974); King v. Hasty, 154 F. Supp.2d 396, 401 (E.D.N.Y. 2001) (Amon, J.); Reilly v. Morton, No. 97-5571, 1999 WL 737916, at *4 (E.D.N.Y. Sept. 16, 1999) (Block, J.). Chapdelaine argues that he meets this threshold because he continued to be incarcerated past his April 23, 2001 release date while he waited for the Parole Commission to conduct the revocation hearing. (Pet'r's Mem. at 14).
Chapdelaine complained to the hearing examiners about the untimeliness of his revocation hearing. (Brackney Decl. Ex. A at 45). However, when he was asked how he thought this had prejudiced his case, he "indicated that basically it had not in regard to the time in custody but he was concerned that the procedures were not adhered to." (Id.).
At the time of his parole revocation hearing, Chapdelaine had been incarcerated for 124 months on his 1992 sentence. (See Brackney Decl. Ex. A at 47). The Parole Commission determined that, under the applicable guidelines, Chapdelaine should be incarcerated for an additional 36 to 48 months on his 1985 conviction. (Id. at 47, 49). Despite that customary range, however, the Parole Commission concluded that Chapdelaine should be released on December 23, 2001, after serving a total of 129 months. (Id.). The time spent in custody prior to the hearing, as well as the additional five months, was deemed necessary for "case processing and release planning." (Id. at 48-49).
The guidelines for parole and reparole may be found at 28 C.F.R. § 2.20 and 2.21.
Chapdelaine has not adduced any evidence which would suggest that the Parole Commission's decision concerning his release date would have been any different or that he would have served less "case processing and release planning" time had his hearing been held two days earlier. Therefore, Chapdelaine has not shown any prejudice or bad faith sufficient to support his due process claim.
D. Jurisdiction to Execute Warrant
Chapdelaine further contends that both the Parole Commission and the Warden of FCI Otisville lacked jurisdiction to execute the parole warrant. He argues that the Parole Commission did not have jurisdiction because his maximum sentence on the 1985 conviction expired on May 13, 1997, several years before the warrant was executed. (Pet'r's Mem. at 11). Chapdelaine is correct that the Parole Commission's jurisdiction over a parolee typically ends on the date that the maximum parole term for the parolee expires. See 18 U.S.C. § 4210 (b). Pursuant to 28 C.F.R. § 2.44 (d), however, "the issuance of a [parole violator] warrant . . . operates to bar the expiration of the parolee's sentence [a]nd . . . maintains the Commission's jurisdiction to retake the parolee either before or after the normal expiration date." Therefore, by issuing its warrant on August 11, 1995, the Parole Commission preserved its right to exercise jurisdiction over Chapdelaine when he completed his term of imprisonment on the 1992 conviction.
Chapdelaine also maintains that his parole term continued to run pursuant to 28 C.F.R. § 2.46 (c) because the execution of the parole warrant was delayed. He argues that he should therefore be deemed to have served the full parole term arising out of his first conviction by May 13, 1997. What Chapdelaine overlooks is that he was convicted of a new offense while on parole. He consequently is not entitled to have the time that he was incarcerated on the new offense counted as time spent on parole for his first offense. See 28 C.F.R. § 2.52 (c)(2). Furthermore, because the Parole Commission's decision with respect to the credit that Chapdelaine requested clearly would not have been different had the warrant been executed earlier, Chapdelaine has not demonstrated that the Warden's alleged delay in executing the warrant was in any way prejudicial.
28 C.F.R. § 2.46 (c) provides in pertinent part:
If execution of the [parole violator] warrant is delayed pending disposition of local charges, for further investigation, or for some other purpose, the parolee is to be continued under supervision by the probation officer until the normal expiration of the sentence, or until the warrant is executed, whichever first occurs.
Finally, Chapdelaine argues that, even if the Parole Commission retained the right to execute the warrant at the completion of his imprisonment on the 1992 conviction, he is entitled to relief because the Warden, rather than the Parole Commission, took that step. (Pet'r's Mem. at 12-13). On its face, the warrant is addressed to "[a]ny Federal Officer Authorized to Serve Criminal Process Within the United States." The Warden plainly is such an officer. See 18 U.S.C. § 4213 (d) (authorizing "[a]ny officer of any Federal . . . correctional institution" to execute a parole revocation warrant"). Consequently, there is no basis for this claim.
IV. Conclusion
For the reasons set forth above, the Respondent's motion for summary judgment is granted and the Clerk of the Court is directed to close the case.
SO ORDERED.