Opinion
Civil Action No. 4:04-CV-680-Y.
February 2, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The findings, conclusions, and recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a federal prisoner pursuant to 28 U.S.C. § 2241.
B. PARTIES
Petitioner Ignacio Champion Lopez, Reg. No. 15603-077, is a federal prisoner incarcerated in the Federal Medical Center, Fort Worth, Texas.
Respondent Cole Jeter is Warden of the Federal Medical Center, Fort Worth, Texas.
C. PROCEDURAL HISTORY
In 1986, Lopez was convicted of various drug-related offenses in this court and sentenced to fifteen years' confinement on the most serious offense. (Resp't Appendix at 9.) The United States Parole Commission (the Commission) released Lopez on parole in 1990 and again in 1994. ( Id. at 11-12.) In 1995, Lopez was arrested on new state criminal charges in Tarrant County, Texas. (Pet'r Memorandum of Law at 1-2.) As a result of the new charges, a parole violator warrant was issued on July 6, 1995 and filed as a detainer. (Resp't Appendix at 13-16.) Lopez was released on bond and became a fugitive from justice. (Pet'r Memorandum of Law at 2.) In 1998, the Commission supplemented it's parole warrant application to include additional allegations due to Lopez's failure to report to his probation officer. (Resp't Appendix at 17.) In 1999, Lopez was arrested on new state criminal charges in California. Based on this information, the Commission again supplemented its warrant application. ( Id. at 19-20.)
In April 2000, Lopez was sentenced in California state court to four years' confinement following a guilty plea to the state charges. ( Id. at 21.) While serving his California sentence, Lopez was convicted in the United States District Court for the Eastern District of Arkansas of one count of conspiracy to distribute and possess with the intent to distribute methamphetamine and sentenced to a term of 188 months. ( Id. at 23-27.) In 2002, Lopez plead guilty to the criminal charges in Tarrant County, Texas, and was sentenced to five years' confinement. ( Id. at 29.) Lopez was released from his five-year state sentence on November 8, 2002 to begin his 188-month federal sentence, and he was returned to the custody of the United States Marshal (the Marshal) on November 19, 2002. ( Id. at 3, 30.) Upon inquiry by the Marshal, on November 20, 2002, the Commission instructed the Marshal that the judgment and conviction in the Eastern District of Arkansas should take precedence over the Commission's parole violator warrant issued on July 6, 1995, and that the warrant should not be executed and should remain as a detainer. ( Id. at 31.) The Federal Bureau of Prisons subsequently lodged the Commission's warrant as a detainer, and the Commission initiated the disposition review procedure under 18 U.S.C. § 4214(b)(1) and 28 C.F.R. § 2.47 to determine whether the violator warrant should remain as a detainer. ( Id. at 32-35.) Following review, on January 15, 2004, the Commission withdrew the unexecuted parole warrant and closed Lopez's case. ( Id. at 45-46.)
On September 21, 2004, Lopez filed the instant petition in this district where he is currently serving his 188-month federal sentence. The government has moved that the petition be dismissed as moot or, in the alternative, that habeas relief be denied.
In 2003, Lopez filed a § 2241 petition in the Eastern District of Arkansas raising the same or similar complaint, which was dismissed on his own motion. (Resp't Appendix at 38-44, 50-52.)
D. DISCUSSION
Lopez complains that his rights were violated by the Commission's alleged refusal to hold a parole revocation hearing on the parole violator warrant issued July 6, 1995 and its decision to impose a detainer. (Resp't Appendix at 2, 23-27.) He seeks dismissal of the warrant and removal of the detainer. (Pet'r Memorandum of Law at 4.) However, because the Commission has withdrawn its warrant and it no longer remains lodged as a detainer against him, Lopez's claim is moot. See Illsley v. U.S. Parole and Probation Dept., 636 F.2d 1 (1st Cir. 1980), cert. denied, 450 U.S. 1032 (1981); Walker v. Henderson, 912 F. Supp. 1, 3 (D.D.C. 1996); Manino v. Matthew, No. 89-3389-R, slip op., 1992 WL 190606, at *1 (D. Kan. July 23, 1992).
According to Lopez, the parole violator warrant was executed on November 19, 2002, when he was taken back into the custody of the Marshal, thereby triggering the Commission's procedural responsibilities. ( Id.) He contends that after the warrant had been executed, the Commission could not "reverse and then file the warrant as a detainer." ( Id. at 4-5.) Although Lopez asserts he was returned to federal custody upon execution of the parole violator warrant on November 19, 2002, it is apparent from the record that the Commission did not intend for the warrant to be executed and that the warrant was, in fact, left unexecuted.
II. RECOMMENDATION
It is recommended that the government's motion to dismiss be GRANTED, and this petition for writ of habeas corpus under § 2241 be dismissed with prejudice.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until February 23, 2005. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
VI. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until February 23, 2005, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.