United States District Court, E.D. North Carolina, Western Division
LOUISE W. FLANAGAN, District Judge.
The matter is before the court on respondents' unopposed motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (DE 7), which this court construes as a motion for summary judgment pursuant to Rule 56 because respondents attached documents outside of the scope of the pleadings. Also before the court is petitioner's motion to expedite (DE 12). In this posture, the issues raised are ripe for adjudication. For the following reasons, the court grants respondents' motion and denies as moot petitioner's motion.
STATEMENT OF THE CASE
On January 31, 2005, the District of Columbia Superior Court sentenced petitioner to a 20 month term of imprisonment, followed by a five year term of supervised release, on his conviction for attempted possession with intent to distribute cocaine. (Resp't's Mem. Ex. A, p. 5.) Petitioner was released to the supervised release term on June 29, 2007. (Id.)
On June 3, 2010, the United States Parole Commission ("the Commission") issued a warrant charging petitioner with violating the conditions of his supervised release by failing to report to his supervision officer as directed and failing to submit supervision reports. (Id. Ex. B.) On September 1, 2009, petitioner was charged with unlawful possession with the intent to distribute cocaine. (Id. Ex. A, p. 1 and Ex. C.) On December 12, 2012, the United States District Court for the District of Columbia convicted petitioner of the charged offense and sentenced him to a term of 120 months imprisonment followed by a 36 month term of supervised release. (Id. Ex. A, p. 1 and Ex. C.)
Following petitioner's conviction, the Commission supplemented its parole warrant with the new law violation. (Id. Ex. C.) The Commission placed its warrant as a detainer while petitioner serves his federal sentence. (Id. Ex. D.)
On November 5, 2014, respondent filed a motion to dismiss, arguing that petitioner failed to state a claim upon which relief may be granted. Petitioner did not respond to respondent's motion, but did subsequently file a motion to expedite.
A. Standard of Review
Summary judgment is appropriate when there exists no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, 477 U.S. 242, 247 (1986). The party seeking summary judgment bears the burden of initially coming forward and demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party then must affirmatively demonstrate that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Industrial Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. Anderson, 477 U.S. at 250.
1. Revocation Hearing
Petitioner asserts that the Commission violated his due process rights because it failed to review the parole violation warrant currently pending as a detainer. In Morrissey v. Brewer, 408 U.S. 471 (1972), the United States Supreme Court held that due process mandates that a parole revocation hearing take place within a reasonable time after a parolee is taken into custody. Id. 485-89. The Court, however, later held that the procedural protection of an immediate hearing is inapplicable where an inmate is in custody pursuant to a federal conviction, and has a detainer lodged against him for a later revocation hearing. Moody v. Daggett, 429 U.S. 78, 87-88 (1976). The Moody Court determined that a prompt hearing was unnecessary under these circumstances because: (1) the subsequent conviction establishes probable cause that a condition of release has been violated; and (2) the detainer does not immediately deprive the inmate of liberty. Id. at 86, n.7; see also, Posey v. Dewalt, 86 F.Supp.2d 565, 569 (E.D. Va. 1999) ("[T]he Supreme Court has since held [in Moody] that the prompt parole revocation hearing guaranteed by Morrissey is inapplicable where, as here, an individual has already been lawfully deprived of his liberty and is in custody on a criminal conviction."), appeal dismissed, 215 F.3d 1320 (4th Cir. 2000).
Here, petitioner is in custody pursuant to a federal conviction. Petitioner's parole violator warrant was lodged as a detainer, and the warrant has not yet been executed. Because petitioner is in custody pursuant to a federal conviction, the prompt parole ...