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Blue Thunder v. United States Parole Commission

United States District Court, E.D. Kentucky, Central Division, Lexington

May 5, 2014



JOSEPH M. HOOD, Sr., District Judge.

James David Blue Thunder ("Blue Thunder") is an inmate confined by the Bureau of Prisons in the Federal Medical Center located in Lexington, Kentucky. Proceeding without counsel, Blue Thunder filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the decision of the United States Parole Commission ("USPC") dated June 22, 2012, continuing his case for a year and scheduling a parole Reconsideration Hearing in June of 2013.[1]

Blue Thunder claims that when the USPC originally revoked his parole in 1998, the USPC relied on hearsay evidence and otherwise improperly revoked his parole. He claims that in taking these actions, the USPC exceeded its rule making authority, acted in an arbitrary and capricious manner, and violated his right to due process of law guaranteed by the Fifth Amendment of the U.S. Constitution. Blue Thunder asserts that there was no rational basis for the USPC's action, and he seeks an order temporarily restraining the USPC from enforcing its decision to revoke his parole while this action is pending. He claims that he is in custody in violation of the U.S. Constitution and laws of the United States, and he seeks immediate release.

On initial review, by Memorandum Opinion and Order of November 18, 2013, the judge originally assigned to this case determined that Blue Thunder's § 2241 petition was an abuse of the writ, as well as successive, and denied same. [R. 23, 24] On December 20, 2013, Blue Thunder filed an ex parte "Motion To Alter or Amend Judgment, " which he characterized as a motion filed pursuant to Fed.R.Civ.P. 59(e).[2] [R. 25] For the reasons explained below, Blue Thunder's motion to alter or amend judgment will be granted in part and denied in part.


In 1978, Blue Thunder was convicted in the District of South Dakota of first-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153. Blue Thunder received a life sentence of imprisonment, and his conviction and sentence were affirmed on appeal. United States v. Blue Thunder, 604 F.2d 550 (8th Cir. 1979). On August 14, 1995, Blue Thunder was paroled. However, his parole was revoked on June 24, 1998, after the USPC found that he had violated numerous conditions of his parole.

Blue Thunder appealed the USPC's decision to revoke his parole to the National Appeals Board ("NAB"), contending that the USPC lacked jurisdiction to revoke his parole. On September 15, 1998, the NAB rejected his appeal and affirmed the USPC's decision.

Subsequently, prior to filing the present § 2241 petition, as detailed in the Memorandum Opinion and Order of November 18, 2013 [R. 23], in 2001, 2004, 2009, Blue Thunder filed three other petitions for writ of habeas corpus pursuant to § 2241. The 2001 petition was dismissed on the merits, with the court finding that the USPC had acted within its jurisdiction and did not deny him due process as there was a rational evidentiary basis for the parole revocation findings. See Blue Thunder v. Gallegos, No. 01-WM-1965 (D. Colo. May 17, 2002) (unpublished order). Blue Thunder did not appeal.

Blue Thunder filed his second § 2241 petition in June 2004. The district court dismissed the petition as an abusive writ pursuant to 28 U.S.C. § 2244(a), concluding that Blue Thunder had previously unsuccessfully raised the same issue concerning the revocation of his parole. Petitioner appealed, but on February 7, 2006, the Tenth Circuit affirmed the denial of Blue Thunder's second habeas petition as an abuse of the writ. See James David Blue Thunder v. U.S. Parole Commission, et al., F.Appx. 666 (10th Cir. 2006) [unpublished].

In 2009, Blue Thunder filed a third § 2241 habeas petition. See James Blue Thunder v. Brian J. Jett, Warden, et al., No. 09-2454-DSD/LIB (D. Minn. 2009), wherein he raised the following challenges to the Revocation Hearing: (1) that the Commission had no subject matter jurisdiction to consider the Tribal Code violations; (2) that USPO Janssen committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), by allegedly "suppressing" witnesses and medical evidence from the Hearing Officer; (3) that the Commission did not have jurisdiction to consider the fraud charge because the Veterans Administration had already made a "final and conclusive" decision that he was not at fault;(4) that the Tribal Courts, and not the Commission, had jurisdiction over the terms of his parole, as well as the criminal conduct charges; (5) that the Assistant United States Attorney failed to comply with Title 25 U.S.C. Section 2809(b); and (6) that the Warrant was improperly based upon criminal conduct for which he had not been arrested. The district court surmised that Blue Thunder was claiming that these alleged procedural errors violated his right to Due Process, under the Fifth Amendment, and under Title 25 U.S.C. § 1302, which extends many of the liberties guaranteed in the Constitution as against Tribal Governments and that he was claiming that, given the facts and the Court's purported lack of jurisdiction, the Commission's decision to revoke his parole was arbitrary and capricious, under the Administrative Procedures Act, Title 5 U.S.C. §701, et seq. ("APA"). Additionally, Blue Thunder also claimed that he is actually innocent of several of the Charges - specifically, the Charges of Fraud, the Violation of Special Conditions, and an assault charge. For all of those reasons, Blue Thunder sought reversal of his parole revocation.

On September 23, 2010, the district court denied Blue Thunder's petition as successive and as an abuse of the writ. James Blue Thunder v. Brian J. Jett, Warden, et al., No. 09-2454-DSD/LIB (D. Minn. 2009) [R. 35 therein] Blue Thunder moved for relief from that judgment, pursuant to Fed.R.Civ.P. 60(b)(6) [ Id., at R. 37]. On August 19, 2013, the district court denied that motion. [ Id., at R. 43] Blue Thunder did not appeal.

Blue Thunder's present § 2241 petition, filed in 2013, is his fourth such petition. As Judge Forester previously pointed out, three of the four claims raised herein hinge on the fact that he was never charged or convicted of any new criminal offenses in any court, tribal or federal, either before or after his parole was revoked in 1998. Based on that fact, Blue Thunder contends that (a) the USPC lacked authority to arrest and detain him for criminal conduct in the absence of the United States Attorney's Office initiating any criminal charges against him, (b) he is "actually innocent" of the criminal conduct for which the USPC found he had committed, and (c) he has newly discovered evidence that the USPC exceeded its statutory authority by charging him with violations of law for which he was never charged or convicted. For this fourth claim, he argued that the USPC violated his due process rights by exceeding the scope of its authority relating to the requirement that, pursuant to 18 U.S.C. § 4203(c)(2), it must "take sworn testimony" in parole revocation proceedings as established in 18 U.S.C. §§ 4209(b) and 4213(b).


In the Memorandum Opinion and Order of November 18, 2013, Judge Forester explained in great detail that Blue Thunder's present § 2241 petition was an abusive, successive petition and that, for those reasons, it would be denied and dismissed. [R. 23] Judge Forester also pointed out that, even if his petition were not successive and an abuse of the writ, the claims raised therein were without merit; however, it is clear that ...

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