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Mellinger v. U.S. Probation Office

United States District Court, D. Hawaii

April 16, 2018

DANIEL MELLINGER, Petitioner,
v.
U.S. PROBATION OFFICE, Respondent.

          ORDER DISMISSING PETITION

          SUSAN OKI MOLLWAY UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION.

         Petitioner 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 However, when Mellinger's parole was revoked and he was imprisoned (possibly from July 18, 2014, pending the parole revocation hearing), his separate term of supervised release was tolled.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.

         II. STANDARD.

         Rule 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.”

         III. BACKGROUND.

         Mellinger 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 petition.

         Relevant 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.

         Mellinger 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)).

         In 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)).

         Four 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 DGC, ...


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