Clovis Carl Green, Jr. v. Joe Quintana, U.S. Probation Officer Richard Miklic, Named As Chief U.S. Probation Officer United States Parole Commission, 992 F.2d 1222, 10th Cir. (1993)
Clovis Carl Green, Jr. v. Joe Quintana, U.S. Probation Officer Richard Miklic, Named As Chief U.S. Probation Officer United States Parole Commission, 992 F.2d 1222, 10th Cir. (1993)
Clovis Carl Green, Jr. v. Joe Quintana, U.S. Probation Officer Richard Miklic, Named As Chief U.S. Probation Officer United States Parole Commission, 992 F.2d 1222, 10th Cir. (1993)
2d 1222
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
This matter is before us on appeal from the district court's dismissal of Mr.
Green's petition for writ of habeas corpus in which he sought to challenge
certain conditions attached to his mandatory release supervision. Petitioner is
no longer on release, having been subsequently convicted on state charges of
sexual assault, criminal extortion, and being an habitual offender.
We AFFIRM the district court's dismissal of the petition for substantially the
reasons set forth in the recommendation of the magistrate judge, a copy of
which is attached to this order and judgment.
ATTACHMENT
5 THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
IN
COLORADO
6CLOVIS CARL GREEN, Petitioner,
7v.
8JOE QUINTANA, U.S. Probation Officer, CHIEF U.S. PROBATION
9OFFICER and U.S. PAROLE COMMISSION, Respondents.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
10
11
12
13
Pursuant to Rule 605 of the Local Rules of Practice of the United States District
Court of the District of Colorado, this matter has been referred to Magistrate
Judge Richard M. Borchers. Upon a review of the petition and the applicable
law, a recommendation is made that the petition be dismissed.
14
15
Since Petitioner filed this petition, he was arrested in Denver on new state
criminal charges, and the Parole Commission issued a violator warrant. The
petition challenges the specific conditions that had been placed on Petitioner's
mandatory release and requests this Court to remove those restrictions. Because
Petitioner has now been reincarcerated, there does not appear to be a live case
or controversy at this time. A favorable determination on this petition would
not entitle Petitioner to any benefits at this point, and Petitioner no longer has a
personal stake in the outcome of this case. Thus, the petition should be
dismissed as moot. See Weinstein v. Bradford, 423 U.S. 147 (1975); O'Shea v.
Littleton, 414 U.S. 488 (1974); United States ex rel. Graham v. U.S. Parole
Commission, 732 F.2d 849 (11th Cir.1984).
16
In any event, the terms and conditions placed on Petitioner's mandatory release
did not violate Petitioner's constitutional rights. Parole conditions must be
sustained if there is a rational basis in the record for them. Bagley v. Harvey,
718 F.2d 921, 925 (9th Cir.1983). Because parole is an extension of
confinement, limitations resulting in diminished income or restricted living or
travel arrangements during the time of parole or mandatory release supervision
do not result in a constitutional violation. Bricker v. Michigan Parole Board,
405 F.Supp. 1340, 1343-44 (E.D.Mich.1975). The purpose of parole or
mandatory release supervision is to assist an individual in an effort to reintegrate himself into society. Therefore, legitimate state interests warrant
placing some conditions on the individual's behavior. Morrissey v. Brewer, 408
U.S. 471, 477-80 (1972). Such restrictions do not rise to the level of violating
Petitioner's rights under the First Amendment.
17
[W]hen
a convict is conditionally released on parole, the government retains a
substantial interest in ensuring that its rehabilitative goal is not frustrated and that the
public is protected by further criminal acts by the parolee.
18
19
The U.S. Parole Commission has spent substantial time evaluating Petitioner.
He has received three parole hearings prior to being mandatorily released.
Numerous assessments and evaluations have been prepared regarding
Petitioner. (See Exhibits B, C, D, I and M to Government's Response). The
conditions attached to Petitioner's mandatory release were not arbitrary,
capricious or an abuse of discretion. Rather, the conditions were carefully
considered decisions on how best to facilitate Petitioner's rehabilitation.
20
petition be dismissed.
21
22
23
25
B. When presented for filing, pro se petitions under 28 U.S.C. 2241, 2254,
and pro se complaint under 42 U.S.C. 1983 shall be delivered to a magistrate
who shall review the motion and affidavit to proceed in forma pauperis and rule
thereon in accordance with 28 U.S.C. 1915. If the motion is granted, the
magistrate shall promptly review the file and, if there is any basis for
jurisdiction and possible merit, the magistrate shall direct the clerk to make
service of process.
26
27
28
29
30
31
I certify that I mailed a copy of the attached to the person listed above on April
8, 1992.
35
43
THIS MATTER comes before the Court on Petitioner's April 17, 1992 filing of
a motion for immediate evidentiary hearing. On April 15, 1992, the Court
recommended that Petitioner's petition be dismissed.
44
There is nothing in the motion which would indicate that dismissal of the
petition is inappropriate.
45
46
It is further ORDERED that the clerk of the United States District Court shall
attach to a copy of this recommendation for Petitioner a copy of Rule 605 of the
Local Rules of Practice of the United States District Court for the District of
Colorado.
48
51
I certify that I mailed a copy of the attached to the person listed above on April
22, 1992.
52
Secretary/Deputy Clerk
This order and judgment has no precedential value and shall not be cited, or
used by any court within the Tenth Circuit, except for purposes of establishing
the doctrines of the law of the case, res judicata, or collateral estoppel. 10th
Cir.R. 36.3