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Velazquez v. United States Parole Commission

October 13, 2009

CRECENCIO VELAZQUEZ PETITIONER
v.
UNITED STATES PAROLE COMMISSION RESPONDENT



The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge*fn4

MEMORANDUM*fn1

On May 6, 2008, petitioner Crecencio Velazquez, currently incarcerated at the Federal Correctional Institution at Allenwood in White Deer, Pennsylvania ("FCI Allenwood"), filed a petition for writ of mandamus. (Doc. No. 1 at 1). The court construes petitioner's petition for writ of mandamus as a petition for writ of habeas corpus and, for the reasons set forth below, the petition will be DENIED.

I. FACTS AND PROCEDURAL BACKGROUND

On August 5, 1986, petitioner was sentenced by the United States District Court for the Western District of North Carolina to a thirty year term of imprisonment because he was convicted of (1) aiding and abetting the possession and transport of firearms, (2) aiding and abetting and causing the transportation in interstate commerce of unregistered firearms, (3) placing, aiding and abetting the placement of firearms aboard aircraft in baggage, (4) conspiracy to commit escape, (5) aiding and abetting an escape, and (6) corruptly giving and offering something of value to a public official. (Doc. No. 6 at 2); Respondent's Ex. 3 (Doc. No. 6-2 at 16). Petitioner was paroled on June 11, 2002, and was to remain under parole supervision until April 18, 2018. (Doc. No. 6 at 2); Respondent's Ex. 3 (Doc. No. 6-2 at 16).

On June 19, 2003, the Commission issued a warrant charging petitioner with violating the conditions of his parole by engaging in (1) conspiracy to possess with intent to distribute cocaine, (2) conspiracy to use and carry firearms during and in relation to a drug trafficking crime, (3) conspiracy to commit a home invasion robbery, and (4) for his failure to report his arrest for these conspiracy charges to his probation officer. Respondent's Ex. 3 (Doc. No. 6-2 at 16-17). Furthermore, the Commission instructed the United States Marshal Service that petitioner was in custody pending new federal charges, and that the Commission's warrant should be placed as a detainer on petitioner. (Doc. No. 6 at 3); Respondent's Ex. 4 (Doc. No. 6-2 at 18).

On December 5, 2003, petitioner was convicted of being a felon in possession of a firearm, and was sentenced by the United States District Court for the Southern District of Florida, to a term of an eighty-four months of imprisonment. Moreover, the Commission informed the court that its warrant, which was placed as a detainer, would be executed at the time of petitioner's release from his new sentence, August 4, 2009. (Doc. No. 21 at 2).

On June 13, 2005, petitioner wrote a letter to the Commission that stated:

"It is my understanding that by pleading guilty to this offense [convicted felon in possession of a firearm], I have violated the terms and conditions of my parole and [I] am subject to revocation. I would like to enter a plea of 'guilty' to the violation of my parole for Possession of Firearms by a Prohibited Person. I understand that by entering this plea of guilty I am waiving any right I may have to have a hearing before the [C]ommission . . . It is my request that the [C]ommission accept this letter as an admission of my guilt and proceed to enter a sentence for this violation." (Doc. No. 1 at 6-7).

On August 29, 2007, the Commission entered an order to "Let the detainer stand," after having reviewed the detainer pursuant to 28 C.F.R. §2.47. (Doc. No. 6 at 3); Respondent's Ex. 5 (Doc. No. 6-2 at 19).

On May 6, 2008, petitioner filed the instant petition, which alleges that on numerous occasions, he has requested "a disposition of this matter," specifically a parole revocation hearing. He alleges his attempts were to no avail, as he had not heard from the Commission. (Doc. No. 1 at 3). Petitioner claims the outstanding warrant has resulted in an increase of his custody classification, has prevented him from participating in programs that he would otherwise be eligible to participate in, and has resulted in him being incarcerated for a longer period of time then he should be incarcerated for. Id. See also (Doc. No. 9 at 12). Petitioner further claims that the sentence he is serving for his new criminal charges should be credited towards his pending parole violation, thereby making the sentences concurrent. (Doc. No. 9 at 7). On June 24, 2008, the Commission filed a response, (Doc. No. 6), and on July 15, 1008, the petitioner filed a reply, (Doc. No. 9).

On June 30, 2009, respondent advised the court that petitioner would become eligible for a parole violation hearing after August 4, 2009, the completion of petitioner's sentence. (Doc. No. 17). On August 29, 2009, the court issued an order directing respondent to advise the court, by September 10, 2009, of the date of petitioner's parole violation hearing . (Doc. No. 20). Accordingly, on September 10, 2009, respondent informed the court that the Bureau of Prisons executed the Commission's warrant on August 4, 2009, and that petitioner had been placed on the Commission's hearing docket for the week of October 26, 2009, within the ninety-day time limit for revocation hearings following execution of the warrant. (Doc. No. 21 at 3); Respondent's Ex. 2 (Doc. No. 21-2 at 5).

II. DISCUSSION

A. Habeas Corpus

Although petitioner filed the instant petition as a petition for writ of mandamus, the court will construe the petition as a petition for writ of habeas corpus. As explained in De La Cruz Jimenez v. Holt, No. 07-1304, ...


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