United States District Court, D. Hawaii
ORDER DISMISSING PETITION
OKI MOLLWAY UNITED STATES DISTRICT JUDGE.
Daniel Mellinger brings this action under 28 U.S.C. §
2241, which provides federal courts with a general grant of
habeas authority. See Frantz v. Hazey, 533 F.3d 724,
735 (9thCir. 2008) (en banc). Mellinger asserts
that his term of supervised release in one criminal case
should have run concurrently with his term of parole in a
separate case, beginning on July 18, 2014. He asks this court
to order that his term of supervised release began on July
18, 2014. However, when Mellinger's parole was revoked
and he was imprisoned (possibly from July 18, 2014, pending
the parole revocation hearing), his separate term of
supervised release was tolled. The court dismisses the
petition because it plainly appears that he is not entitled
to the relief he seeks.
1(b) of the Rules Governing Section 2254 Cases in the United
States District Courts states, “The district court may
apply any or all of these rules to a habeas corpus petition
not covered by Rule 1(a), ” which pertains to cases
involving a petition under 28 U.S.C. § 2254. See
Lane v. Feather, 584 F. App'x 843 (9th
Cir. 2014) (citing Rule 1(b) of the Rules Governing Section
2254 Cases and stating that the district court did not err in
applying Rule 4 of the Rules Governing Section 2254 Cases to
a § 2241 Petition); Moncrieffe v. Yost, 367 F.
App'x 286, 288 (3d Cir. 2010) (noting that Rule 4 of the
Rules Governing Section 2254 Cases applies to a § 2241
petition “by virtue of Rule 1(b)”); Sullivan
v. Hendershot, 2013 WL 5913797, at *4 n.5 (D. Haw. Oct.
30, 2013) (“The Rules Governing Section 2254 Cases also
apply to § 2241 petitions.”); Tanner v.
MacDonald, 2011 WL 1598838, at *1 (D. Haw. Apr. 27,
2011) (dismissing a § 2241 petition pursuant to Rule 4
of the Rules Governing Section 2254 Cases). Pursuant to Rule
4 of the Rules Governing Section 2254 Cases, this court must
dismiss a § 2241 petition and direct the Clerk of Court
to notify the petitioner when “it plainly appears from
the petition and any attached exhibits that the petitioner is
not entitled to relief in the district court.”
has an extensive criminal history. Pursuant to Rule 201 of
the Federal Rules of Evidence, the court takes judicial
notice of this history, as explained in the orders and files
of Mellinger's other cases. For example, Mellinger was
convicted of 7 counts of burglary in Connecticut and 8 counts
of robbery and escape in Hawaii. See Federal
Institutional Revocation (Dec. 3, 2014) (filed in Civil No.
2:15-00129 DGC, Doc. No. 17-2, Page 74 of 128 (D. Ariz. May
1, 2015)). Those convictions are not relevant to the present
here are Mellinger's convictions on multiple 1985 bank
robbery charges in the United States District Court for the
Central District of California. He was sentenced to 18 years
of imprisonment in each case, with the terms running
concurrently. See Mellinger v. Graber, 2015 WL
6406241, *1 (D. Ariz. Sept. 2, 2015); Judgment and
Probation/Commitment Orders in Cr. Nos 85-268 WJR, 85-818
WJR, 85-833 WJR, 85-834 WJR, 85-871 WJR, and 85-873 WJR
(Sept. 20, 1985) (filed in Civil No. 2:15-00129 DGC, Doc. No.
17-2, Pages 17-22 of 128 (D. Ariz. May 1, 2015)). Mellinger
calls this the “old law sentence.” See
Petition, ECF No. 1, PageID # 6.
began serving his sentences on the 1985 bank robberies, and,
in January 1989, the United States Parole Commission
determined that he should serve to the expiration of his
sentences, rather than be paroled. See Graber, 2015
WL 6406241 at *1; Notice of Action (Jan. 24, 2089) (filed in
Civil No. 2:15-00129 DGC, Doc. No. 17-2, Page 24 of 128 (D.
Ariz. May 1, 2015)).
1997, however, Mellinger
was given a mandatory release pursuant to the Parole Act,
which required the Commission to release a prisoner “at
the expiration of his term of sentence less the time deducted
for good conduct.” 28 U.S.C. § 4163 (1982 ed.). At
the time of his release, [Mellinger] had 2, 593 days of his
original sentence left to serve. . . . Under the Parole Act,
[Mellinger] was to be “deemed as if released on
parole” until the expiration of his statutory sentence
less 180 days. 28 U.S.C. § 4164 (1982 ed.). This was set
to occur in November 2003.
In March 1998, the Commission revoked Petitioner's
mandatory release for a technical parole violation. . . .
Despite revoking his mandatory release, the Commission gave
Petitioner credit for his time on parole, bringing his
remaining sentence to 1, 932 days. . . . In February 1999,
Petitioner was reparoled.
Graber, 2015 WL 6385300 at *1; see also
Certificate of Parole (indicating that Mellinger was paroled
on February 9, 1999, with 1, 932 days of his sentence
remaining) (filed in Civil No. 2:15-00129 DGC, Doc. No. 17-2,
Page 35 of 128 (D. Ariz. May 1, 2015)).
months later, Mellinger committed 6 more bank robberies in
California. Graber, 2015 WL 6406241 at *1. Charges
arising from these bank robberies were filed in the United
States District Court for the Northern District of
California, Cr. No. 5:99-20101 RMW. According to the docket
in that case, in October 1999, Mellinger entered a guilty
plea pursuant to a plea agreement; he was sentenced in
January 2000 to 188 months of imprisonment followed by 5
years of supervised release. See also Judgment in a
Criminal Case (Jan. 31, 2000) (filed in Civil No. 2:15-00129