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Hunter v. Cozza-Rhodes

United States District Court, D. Colorado

February 5, 2016

STEVEN M. HUNTER, Applicant,
v.
T.K. COZZA-RHODES, Warden, Respondent.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior Judge United States District Court

Applicant, Steven M. Hunter, is in the custody of the Federal Bureau of Prisons and is incarcerated at the United States Penitentiary in Florence, Colorado. Mr. Hunter has filed pro se an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 6). He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

On December 7, 2015, Magistrate Judge Gordon P. Gallagher issued an Order Directing Respondent to File a Preliminary Response raising the affirmative defense of failure to exhaust administrative remedies, if Respondent intended to raise the defense. (ECF No. 8). Respondent filed Preliminary Response (ECF No. 11), on December 28, 2015, asserting that Applicant had failed to exhaust his available administrative remedies.

Mr. Hunter has also filed two Emergency Motions for a Writ of Mandamus (ECF Nos. 5 and 12). Respondent filed a response to the second Motion on January 13, 2016. (ECF No. 16).

The Court construes Mr. Hunter’s filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Amended § 2241 Application and this action will be dismissed.

I. Background of Parole Commission Proceedings

Mr. Hunter is serving a 31-year sentence imposed by the District of Columbia Superior Court on February 1, 1996, for assault, first degree burglary, assault with a dangerous weapon, aggravated assault while armed, and possession of a firearm during a crime of violence. (See ECF No. 11-1, Declaration of Sharon Gervasoni, at ¶ 3; and attached Ex. A). The crimes were committed on May 27, 1995. (Id.).

On February 3, 2014, the United States Parole Commission[1] released Applicant on parole to remain under parole supervision until August 1, 2026. (Gervasoni Decl. at ¶ 5 and attached Ex. C).

On September 25, 2014, the Parole Commission issued a warrant charging Mr. Hunter with violating the conditions of supervision by committing new criminal conduct- stalking, cyberstalking, and making a harassing telephone call. (Gervasoni Decl. at ¶ 6, and attached Ex. D). Applicant was arrested on the Commission’s warrant on October 7, 2014. (Id. at ¶ 7, and attached Ex. E).

Following a January 26, 2015 parole revocation hearing, the Parole Commission concluded that Mr. Hunter had committed the charged violation and revoked his parole. (Gervasoni Decl. at ¶ 8, and attached Ex. G). The Commission found that the violation was of Category Four offense severity rating under the parole guidelines for communicating a threat transmitted in interstate commerce (telephone). (Id.). See 28 C.F.R. § 2.20, Chapter Two, Subchapter F, paragraph 251. (Id.). The Commission further found the applicable guideline range to be 20-26 months, but departed from this range and ordered that Applicant serve 60 months prior to re-parole. (Id.).

Mr. Hunter appealed the Parole Commission’s revocation decision to the National Appeals Board, claiming that the offense severity had been rated incorrectly and that the Commission’s upward departure from the correct guideline range was erroneous. (Gervasoni Decl. at ¶ 9, and attached Ex. H).

In a September 29, 2015 Notice of Action, the National Appeals Board reversed the Parole Commission’s decision and remanded the case to the Commission to reconsider the offense severity rating and resulting guidelines on the record. (Gervasoni Decl., at ¶ 10, and attached Ex. I).

In an October 28, 2015 Notice of Action, the Parole Commission revised the offense severity rating of Mr. Hunter’s parole violation to Category One severity, which reduced the applicable guideline range to 0-8 months. (Gervasoni Decl., at ¶ 11, and attached Ex. J). The Commission further found, however, that an upward departure from this range remained warranted, and ordered that Applicant serve 60 months prior to re-parole. (Id.). Due to a clerical error, the October 28, 2015 Notice of Action failed to include language informing Mr. Hunter that is was an administratively appealable order. (Gervasoni Decl., at ¶ 12, and attached Ex. J at 2). The Parole Commission issued a corrected Notice of Action on December 16, 2015, which expressly informed Mr. Hunter that he could file an appeal with the National Appeals Board within 30 days of his receipt of the corrected Notice of ...


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