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Ricardo K. Gonzales v. Commandant

April 5, 2013



This matter is before the Court on Ricardo Gonzales's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [D.E. 1].*fn1 The United States has responded [D.E. 16], and the time has passed for Petitioner's reply. Thus, this matter is now ripe for review. For the reasons which follow, the petition will be denied.


In August 2003, Petitioner, a former captain in the United States Army, was found guilty of several offenses including sodomy with a child under the age of sixteen, unlawful damage of military and non-military property, and making false official statements, among other charges. [D.E. 16-1 at 6-9]. He was originally sentenced to fifteen years of confinement and dismissal from the army. [D.E. 16-1 at 9]. Ultimately, the convening authority only approved a sentence of eleven years and nine months with a sixty-one day confinement credit and dismissal from service. [D.E. 1-1 at 7].

On April 20, 2010, the Army Clemency and Parole Board ("ACPB") informed Petitioner that he would be placed on mandatory supervised release ("MSR") on his minimum release date. [D.E. 16-1 at 14, 26]. As conditions of his MSR, Petitioner was required to enroll in and successfully complete an appropriate child sex offender aftercare program. [D.E. 16-1 at 18-19]. Further, he was told that, if state law so required, he would have to register as a sex offender. [D.E. 16-1 at 19]. Petitioner was instructed to submit an acceptable supervision plan for his MSR, as required by Department of Defense Instruction 1325.7. [D.E. 16-1 at 13-24]; [D.E. 16-10, Instruction 1325.7, at 26 ("The prisoner shall be required to submit a parole plan and agree in writing to abide by that plan.")]. However, Petitioner's submitted plans to live with his wife or sister were denied because his wife was unwilling to accept him into her home, and his sister resided in a one-room studio apartment that inspectors determined was inappropriate living space for two adults. [D.E. 16-1 at 24-25].

After these MSR plans were rejected, Petitioner failed to provide acceptable plans at the ACPB's request. [D.E. 16-4 at 10-11]. Accordingly, Petitioner's case was forwarded to a Discipline and Adjustment Board ("DAB") in August 2010, where he was afforded the opportunity to submit evidence and arguments on his behalf. [D.E. 16-4 at 5-16]. The DAB found him guilty of violating a lawful order, and held that he forfeited ninety days of abatement credit as a result; however, Petitioner was informed that if he submitted a valid MSR plan, his credits would be restored. [D.E. 16-4 at 12]. When Petitioner again failed to submit a valid MSR plan, he was brought back before the DAB in November 2010. [D.E. 16-3 at 24-33]. This time, the DAB held that Petitioner forfeited all remaining abatement credits by failing to abide by lawful orders, but was again instructed that the credits would be restored if he submitted a valid plan. [D.E. 16-3 at 25].

Instead of submitting a valid MSR plan, Petitioner remained in confinement and submitted two extraordinary writ appeals to the U.S. Army Criminal Court of Appeals ("ACCA"). [D.E. 16-5 at 1-3]; [D.E. 16-8 at 18-28]; [D.E. 16-9 at 1-13]. The ACCA denied the petitions on June 29, 2010, and July 16, 2010, and, although he appealed both denials to the Court of Appeals for the Armed Forces, they were denied. [D.E. 16-5 at 22-41]; [D.E. 16-8 at 24]. After exhausting his appeals, Petitioner filed a habeas petition in the United States District Court for District of Kansas on July 22, 2010, but he voluntarily withdrew it after the court ordered him to show cause why it should not be dismissed.*fn2 [D.E. 16-5 at 10-15]; [D.E. 16 at 6].

Petitioner was transferred to the Federal Medical Center in Lexington, Kentucky, ("FMC Lexington") on September 13, 2011. [D.E. 16-3 at 20]. When transferred, Petitioner's minimum release date was August 28, 2013, and his maximum release date was March 20, 2015; however, due to newly earned abatement credits, his current minimum release date rests at May 27, 2013. [D.E. 16-3 at 18-19; 6]. Petitioner filed his second habeas petition in this Court on May 7, 2012. [D.E. 1].


Habeas corpus relief may be granted under 28 U.S.C. § 2241 to a federal prisoner who demonstrates he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). "At this stage the Court accepts the petitioner's factual allegations as true and his legal claims are liberally construed in his favor." Jessiah v. Holland, No. 12-144-GFVT, 2013 WL 460624, at *1 n.1 (E.D. Ky. Feb. 6, 2013) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-- 56 (2007)). "The court must deny the petition 'if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief.'" Wilkes v. Quintana, 12-CV-228-JBC, 2013 WL 84931, at *1 (E.D. Ky. Jan. 7, 2013) (citing Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b))).

Further, in a military case, "[w]here there is no colorable jurisdictional question, a finding of full and fair consideration ends our habeas corpus inquiry." Witham v. United States, 355 F.3d 501, 505 (6th Cir. 2004) (citing Burns v. Wilson, 346 U.S. 137, 142 (1953)); see also Lips v. Commandant, United States Disciplinary Barracks, 997 F.2d 808, 811 (10th Cir. 1993) ("[I]f the military gave full and fair consideration to claims asserted in a federal habeas corpus petition, the petition should be denied.").


As an initial matter, Respondent has argued that the Commandant of the United States Disciplinary Barracks ("USDB") in Fort Leavenworth, Kansas, is not a proper respondent in this action. [D.E. 16 at 8]. The Court agrees. "The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is 'the person who has custody over [the petitioner].'" Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004) (quoting 28 U.S.C. § 2242). Therefore, when a petitioner is in physical confinement, "the proper respondent is the warden of the facility where the prisoner is being held . . . ." Id. at 435. Because Petitioner is no longer imprisoned in Kansas, but, rather, is imprisoned at FMC Lexington, the Commandant USDB in Kansas no longer has custody over Petitioner; thus, it is not a proper respondent, and the petition against the Commandant USDB in Kansas is dismissed.

Moving on to the substance of Petitioner's claim, he argues that his placement in the MSR program and subjection to MSR conditions are unlawful violations of his due process rights because 1) he has already served his full sentence, and 2) his original sentence did not include supervised release nor required him to register as a sex offender. [D.E. 1 at 3, 7]. Therefore, Petitioner argues that the ACPB's imposition of these punishments operates as an unlawful increase of his sentence. [D.E. 1 at 3].

First, however, Petitioner's assertion that he finished serving his full sentence on August 27, 2010, his former minimum release date, is flawed. Serving until one's minimum release date does not mean that one has served a full sentence, because the two dates are inherently different. Specifically, serving one's full sentence means that one has served the entirety of the sentence imposed by the sentencing authority, whereas the minimum release date is the adjusted date for a prisoner's release once deductions or forfeitures of good conduct time and other abatements have taken place. [D.E. 16-9, Army Regulation 633-30, at 31-33]; see also Miller v. Air Force Clemency & Parole Bd., No. JFM-10-2621, 2011 WL 4402497, at ...

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