Miller, Ronald L. v. Holder, Carlyle I. , 190 F. App'x 487 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 6, 2006*
Decided July 20, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD A. POSNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 05-4029
RONALD L. MILLER, Appeal from the United States
Petitioner-Appellant, District Court for the
Southern District of Illinois.
v.
No. 04-CV-0175-MJR
CARLYLE I. HOLDER,
Respondent-Appellee. Michael J. Reagan, Judge.
ORDER
In 2004 federal prisoner Ronald Miller filed this habeas corpus action under 28
U.S.C. § 2241, challenging the 1990 decision of the United States Parole Commission to
revoke his parole and direct him to serve the final few years of his undischarged term
*
After an examination of the briefs and the record, we have concluded that
oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the
record. See Fed. R. App. P. 34(a)(2).
No. 05-4029 Page 2
of imprisonment. The district court denied the petition, reasoning that the Commission’s
decision was sound. We affirm.
Miller was convicted of bank robbery, jury tampering, witness intimidation, and
obstruction of justice in 1980. He was paroled several years later but soon absconded
from supervision. The Parole Commission issued a parole-violator warrant directing the
United States Marshals Service to arrest Miller unless he was “already in the custody
of federal or state authorities.” Although Miller was in Missouri custody (charged with
armed robbery, unlawful use of a weapon, and possession of burglary tools), deputy
marshals executed the warrant and returned Miller to federal custody. During a
preliminary interview conducted two days later, Miller admitted possessing a revolver
and burglary tools when he was arrested by the Missouri authorities, but he insisted
that they belonged to “Bill Laslow,” who he knew to be a felon. Later during the
revocation proceedings, Miller further admitted that he failed to report a change of
residence and to submit supervision reports, but he denied the state robbery charge. The
Parole Commission, finding that Miller had committed the armed robbery, ultimately
revoked Miller’s parole. After Miller’s revocation proceedings were completed, the state
robbery charge was dismissed. However, the United States Attorney for the Western
District of Missouri prosecuted Miller for possessing the firearm he was caught with in
that state; in 1993 the sentencing court imposed a 15-year term of imprisonment to be
served consecutively to the undischarged sentences on his 1980 convictions. The Eighth
Circuit affirmed the conviction. United States v. Miller, 20 F.3d 926 (8th Cir. 1994).
Miller claims in his § 2241 petition that his parole should not have been revoked
in 1990 because the parole-violator warrant was not to be executed if he already was in
state or federal custody. He also argues that the Parole Commission should have
modified its earlier revocation decision so that the undischarged portion of his 1980
sentences would run concurrently to the new sentence. The district court denied relief,
and Miller now appeals.
Because Miller’s 1980 sentences expired long ago, we first ask whether the district
court had jurisdiction to entertain a challenge to the Parole Commission’s decision in
1990 to revoke his parole on those convictions and compel him to serve out the
remainder of his sentences. Section 2241(c)(3) requires that a prisoner be “in custody”
on the conviction or sentence he is challenging. See Zadvydas v. Davis, 533 U.S. 678, 687
(2001); Alhassan v. Hagee, 424 F.3d 518, 522 (7th Cir. 2005). But a prisoner may
challenge a sentence that has already expired if he currently is incarcerated on a term
that was imposed consecutively to the expired term. Garlotte v. Fordice, 515 U.S. 39, 40
(1995); see DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir. 2005) (explaining that
Garlotte permits review of expired sentence even if consecutive term currently being
served was imposed by different court at different time); Foster v. Booher, 296 F.3d 947,
950 (10th Cir. 2002) (reasoning that petitioner serving later in series of consecutive
No. 05-4029 Page 3
sentences imposed by same sovereign can challenge the expired sentence). Thus, the
district court had jurisdiction to consider Miller’s belated challenge to the revocation of
his parole on those long-expired terms.
Miller first argues that the execution of the parole-violator warrant was invalid
because the deputy marshals disregarded the Parole Commission’s instruction not to
execute the warrant if he was “already in state custody.” He relies on Barnard v.
Henman, 89 F.3d 373 (7th Cir. 1996) (holding that 90-day time limit in which to conduct
revocation hearing is triggered only by valid execution of parole-violator warrant), to
argue that an invalidly executed warrant bars future revocation proceedings. In
Barnard, deputy marshals executed a parole-violator warrant on a parolee already in
custody despite explicit instructions otherwise. Barnard, 89 F.3d at 377. But, unlike
Miller, the parolee in Barnard argued that his warrant was validly executed and
triggered his right to timely revocation proceedings. Nothing in Barnard suggests that
unauthorized execution of a Parole Commission warrant voids the “retaking” of a
parolee. According to Miller, the Parole Commission’s own guidelines compel that result.
See U.S. Parole Commission Rules and Procedures Manual § 2.212-02(b). But that rule
simply instructs that, in the event of an invalidly executed warrant, a parolee should be
released from custody and the warrant lodged as a detainer until the Parole
Commission, at its convenience, elects to have it executed. Miller cites no authority, nor
can we find any, to contradict the district court’s common-sense conclusion that nothing
stops the Commission from ratifying an unauthorized execution of a parole-violator
warrant by moving forward with revocation proceedings.
Miller next argues that the Parole Commission should have reconsidered its
decision because two of the bases for his revocation were later contradicted or
unsubstantiated: the state robbery charge was dismissed, and it turns out that “Bill
Laslow,” the felon Miller confessed to associating with, is simply an alias used by Miller.
The fact that the state decided not to proceed with the armed robbery charge does not
matter. See Moore v. Olson, 368 F.3d 757, 760 (7th Cir. 2004) (explaining that acquittal
or dismissal of criminal charge does not preclude the Parole Commission from finding
by preponderance of evidence that parolee committed offense). Furthermore, our review
is limited to whether “some evidence” supports the Parole Commission’s decision, see
Phifer v. Clark, 115 F.3d 496, 501 (7th Cir. 1997), and Miller’s own admissions easily
satisfy that standard.
Finally, Miller asserts that after his new conviction in 1993, the Parole
Commission should have modified its 1990 revocation decision so that the remaining
time on his 1980 sentences would run concurrently with the new sentence. Miller
reasons that this result was required because both the revocation and the new criminal
conviction arose out of the same incident—his possession of a gun. Miller’s premise is
flawed, because the gun was just one of many violations that led to revocation; his
No. 05-4029 Page 4
conclusion thus also collapses. Miller also ignores the fact that when his parole was
revoked, he was still serving his original 1980 sentences, not a new sentence for later
conduct. See United States v. Wyatt, 102 F.3d 241, 244-45 (7th Cir. 1996). Miller’s failure
to abide by his parole terms “triggered” the “modification of the terms of his original
sentence” and sent him back to prison. Id. at 244. Notwithstanding Miller’s contrary
assertion, the applicable regulation does not require the Parole Commission reconsider
the terms of his original sentences. See U.S. Parole Commission Rule 2.28(d). In any
event, the decision whether the 1993 sentence will run consecutively or concurrently is
committed to the sentencing judge. 18 U.S.C. § 3584(a); United States v. Plantan, 102
F.3d 953, 956 (7th Cir. 1996).
AFFIRMED.