KIMBERLIN v. DEWALT
12 F.Supp.2d 487 (1998)
Brett C. KIMBERLIN
v.
Stephen DEWALT, Warden FCI-Petersburg.1
No. Civ.A. AW-97-3829.
United States District Court, D. Maryland.
June 30, 1998.
Brett C. Kimberlin, pro se.
Lynn A. Battaglia, United States Attorney, Tamera L. Fine, Assistant United States Attorney, of Baltimore, MD, for Defendant.
AMENDED MEMORANDUMWILLIAMS, District Judge.
On June 27, 1997 the United States Parole Commission revoked Brett C. Kimberlin's parole.2 On November 10, 1997 Kimberlin filed a petition for writ of habeas corpus challenging the revocation. After giving petitioner time to supplement his petition (see Paper Nos. 2 and 3), the Court on December 18, 1997 required the United States Parole Commission to respond to the petition. (See Paper No. 7). The Commission has filed its response. (See Paper No. 12). Petitioner has filed objections to the response (see Paper No. 19), and the Commissioner has filed a reply to those objections. (See Paper No. 25). A hearing is not necessary for the resolution of this case. See Local Rule 105.6. Standard for ReviewOn judicial review, a parole violator may not retry the evidence against him. Garcia v. Neagle, 660 F.2d at 988; 18 U.S.C. Section 4218(d). Judicial review is satisfied as long as "some evidence" exists to support the agency's revocation.3 For reasons set forth herein, petitioner has failed to meet this burden here.4 In order to prevail, petitioner must show that the Commission "exceeded its legal authority, acted unconstitutionally or failed to follow its own regulations" in revoking his parole. See Garcia v. Neagle,660 F.2d 983, 988 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309; see also Townsend v. Sain,372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (habeas petitioner must show that detention is unlawful). Petitioner's Criminal History
1. Pursuant to 28 U.S.C. Section 2243, the proper party respondent in a habeas corpus case is the "person having custody of the person detained." On May 4, 1998 petitioner was transferred from FCI-Cumberland to FCI-Petersburg. Accordingly the Warden at FCI-Petersburg shall be substituted for the United States Parole Commission as the proper party respondent in this case.
2. Petitioner, whose criminal history will be detailed herein, is presently serving an aggregate federal sentence of 51 years, 6 months and 19 days, imposed by the United States District Courts for the Southern District of Indiana and the Southern District of Texas. See Paper No. 12, Exhibit A. Although petitioner at the time of filing this case was incarcerated at the Federal Correctional Institution at Cumberland, Maryland, this Court later authorized Federal Bureau of Prisons personnel to transfer him to the Federal Correctional Institution at Petersburg, Virginia. See Paper No. 47.
3. Other circuits use this same standard of review, but call it a "rational basis" test for revocation. See Lewis v. Beeler,949 F.2d 325 (10th Cir.), cert. denied, 504 U.S. 922, 112 S.Ct. 1972, 118 L.Ed.2d 572 (1992). 4. While this Court has summarized key portions of the evidence relied upon by the Parole Commission in reaching its revocation decision, a more detailed summary can be found in the government's Response, Paper No. 12, at 36-41.
5. According to his 1981 presentence report, petitioner was arrested in 1979 after seizure of a Douglas DC-3 aircraft bearing Columbian registration. Approximately 10,000 pounds of marijuana were found on the ground along the aircraft's flight path. Drug Enforcement Agency agents concluded that petitioner was the organizer and funding source for the operation, which included the purchase of the aircraft. See Paper No. 12, Exhibit B.
6. Petitioner possessed two 50-pound boxes of Tovex 200 dynamite while on probation from a 1973 felony conviction for perjury. Part of the dynamite was used to blast holes in the earth to construct an underground storage vault, while some of the dynamite was used in petitioner's next offense. See id., Exhibit B at 9.
7. The bombs were made with electronic blasting caps attached to a six-volt battery detonated by a timer. Some contained lead shot. All but one were placed near homes, buildings, schools and other places open to the public.
8. The fingers later were reattached.
10. See Kimberlin v. DeLong,637 N.E.2d 121, 128 (Ind.1994) (attached to Paper No. 12, Exhibit E). 11. See Kimberlin v. United States, Order of October 23, 1992, attached as Exhibit F to Paper No. 12. The Seventh Circuit found that Mrs. DeLong had a "final, collectible judgment" and that petitioner would have to launch any attack on that judgment in the Indiana courts. Id.
12. See Kimberlin v. White,7 F.3d 527, 528-531 (6th Cir.1993) for a summary of parole proceedings. See also Paper No. 12, Exhibit G. 13. See Paper No. 12, Exhibit H, letter of January 25, 1997 from petitioner to United States Probation Officer Renata Ramsburg.
14. Petitioner's treatment by the BOP is the subject of ongoing litigation. See Kimberlin v. Quinlan,6 F.3d 789 (D.C.Cir.1993), vacated and remanded,515 U.S. 321, 115 S.Ct. 2552, 132 L.Ed.2d 252 (1995). 15. Petitioner was denied rehearing by the Indiana Supreme Court on December 15, 1994. His petition for certiorari to the United States Supreme Court was denied October 2, 1995. See Kimberlin v. DeLong, 516 U.S. 829, 116 S.Ct. 98, 133 L.Ed.2d 53 (1995).
16. Petitioner claims he orally informed the loan officer about the civil judgment, but claimed that his lawyers had determined it to be void and unenforceable, and thus not subject to written disclosure. See paper No. 12, Exhibit W at 4-5.
17. LADA paid more than $100,000 for the down payment and mortgage payments on this house. See Paper No. 12, Exhibits K and Q.
18. See Paper No. 12, Exhibit M.
19. Id., Exhibit H.
20. Id., Exhibit N. In issuing this Notice of Action the Commission exercised its authority to waive the ten-day comment period that normally precedes imposition of a special condition, finding that petitioner already had made clear his "refusal to compensate [his] victim under any circumstances" and that such action necessary to prevent petitioner from having "any further time to spend or otherwise dispose of assets before [the] special condition takes effect." Id. Such waiver is permitted pursuant to 18 U.S.C. Section 4209(d)(1).
21. Id., Exhibit O.
22. Id., Exhibit P at 4-5. This directive was meaningless, because BKE, Inc., and not petitioner himself, was under contract with Knopf.
23. Id., Exhibit Q, Financial Report of February 26, 1997. Although assets and income in excess of $350,000 have been donated or generated by petitioner for BKE, Inc., he claims to have transferred 100% of his ownership interest in the corporation to his sister in 1994 upon an alleged contribution of $150,000 by his sister, Cynthia Kimberlin, to BKE, Inc. No records have been produced to verify this information. Id. at 9-10, n. 3.
24. These individuals had threatened libel actions against petitioner's co-author and Knopf in connection with the release of Citizen K. These claims prevented payment of any money from Knopf, Inc. to Mrs. DeLong or others, because Knopf had the contractual right to refuse payment until all claims against it are withdrawn or settled. See, i.e., Kosior v. Ramsburg, et al., Civil Action No. AW-97-1511.
25. See Paper No. 12, Exhibit S.
26. Id., Exhibit R.
27. It does not appear that these proceedings have been finalized. Questions may exist as to whether the requisite number of creditors signed the bankruptcy petition. See 11 U.S.C. Section 303.
28. Petitioner offered to pay $1,000 per month if he could take out a $20,000 home equity loan.
29. Id., Exhibit U.
30. The letter indicated that petitioner had ample time to apply for appointed counsel, and had been provided with a CJA-22 Form at his hearing a month earlier. Id., Exhibit V, letter dated May 19, 1997 and Declaration of Catherine Kirby.
31. Petitioner had requested no adverse witnesses on a Form F-2.
32. In his "Traverse" (Paper No. 19), petitioner claims that the Commission used the wrong guidelines regarding the mortgage application. The Court finds that the guidelines used with regard to mortgage applications, set forth at 28 C.F.R. Section 2.20, were correctly applied here. Chapter 3, Subchapter B, Section 333 of those provisions deals specifically with fraudulent loan applications, which by regulations are quantified "according to the amount of the loan," and not the amount of the loss or expected loss.
33. The Commission found that "[a] substantial period of incarceration is appropriate because your administrative violation was an on-going series of false statements and actions intended to prevent the just compensation of the surviving victim of the extremely violent crime you committed. The purpose of parole is to achieve the rehabilitation of the offender, and you have demonstrated your fundamental unreadiness to work toward this goal." Id., Exhibit X.
34. The details of the scheme can be found in United States v. Dugan,902 F.2d 585 (7th Cir. 1990). 35. As respondent points out in its motion, even the statement by Kimberlin's former attorney is nothing more than an unverified handwritten statement which has never been authenticated by anyone other than petitioner. See Paper No. 12 at 19, n. 7.
36. In Kimberlin v. United States, 978 F.2d 1261 (7th Cir.1992), the Seventh Circuit held that because the Indiana civil case was still on appeal, the status of petitioner's rights in the matter had to be resolved by the Indiana courts. Five years has passed, and petitioner has yet to present his claim to the Indiana state courts. The doctrine of laches does not permit petitioner to withhold his claim from adjudication in the proper forum, and then demand that the Commission and this Court simply accept his claim of judicial corruption as true. See White v. Daniel,909 F.2d 99 (4th Cir.1990), cert. denied, 501 U.S. 1260, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991) (defense of laches available when party can show both lack of diligence in bring a timely claim and prejudice to the defendant). 37. The Indiana civil judgment does not amount to an "unrelated debt" exempt from the purpose of parole supervision. See United States v. Abrar,58 F.3d 43 (2d Cir.1995) (disapproving a special condition of supervised release to pay all debts, whether related to the crime or not). 39. See Paper No. 12, Exhibit I at 2, in which petitioner warns his probation officer not to attempt enforcement of the Indiana judgment, and announcing his intent to continue appellate litigation.
40. Given the nature of litigation in the Indiana courts and beyond, it is hard to see where petitioner has been required to pay the Indiana judgment without the benefits of normal judicial process to contest Mrs. DeLong's right to collect.
41. This "carrot and stick" approach has been upheld even where constitutional interests, such as the right to refuse psychotropic medication, were involved. See Rauschenberg v. Williamson,785 F.2d 985, 987 (11th Cir.1986). 42. See, i.e., United States v. Pastore,537 F.2d 675, 683 (2d Cir.1976). 43. See (Paper No. 12, Exhibit Y at 1).
44. See Bloodgood v. Garraghty,783 F.2d 470, 475 (4th Cir.1986) (where valid reasons given for decision, federal court cannot assume parole board relied on possibly invalid factors). 45. Petitioner's claim that Ms. Kirby described herself as "a puppet" is not supported by the record.
46. See Morrissey v. Brewer, 408 U.S. at 489, 92 S.Ct. 2593; 18 U.S.C. Section 4214(a)(2)(D) (1976).
47. Indeed, much of the evidence used against petitioner was based on his own submissions to parole officials. He thus cannot complaint that his own voluntary submissions provided evidence that he violated parole. See Hanahan v. Luther,693 F.2d 629 (7th Cir.1982), cert. denied, 459 U.S. 1170, 103 S.Ct. 815, 74 L.Ed.2d 1013 (1983). 48. The rules of the Commission permit issuance of a subpoena to secure the presence of even favorable witnesses who might otherwise not appear. See 28 C.F.R. Section 2.51(a)(2).
49. In Belk, a case involving parole revocation by the Missouri State Parole Board, the Eighth Circuit Court of Appeals held that adverse witnesses must be produced unless "good cause" is found for not allowing cross-examination. In Belk, there is no indication that the state parole board ever gave an accused parole violator a formal opportunity to request or waive the appearance of adverse witnesses. Such an opportunity is provided to federal parole violators.
50. In In re Barboza,211 B.R. 450 (Bankr.D.R.I. 1997), the bankruptcy court held that a violation of the automatic stay may be found, if the sole objective of the debtor's post-bankruptcy petition probation hearing is to collect restitution. As noted herein, the facts of Barboza are not present here.