Darouse v. United States Parole Commission

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 03-6861

JOHN P. DAROUSE, JR.,

Petitioner - Appellant,

versus

UNITED STATES PAROLE COMMISSION,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., District
Judge. (CA-01-137)

Submitted: November 21, 2003 Decided: February 17, 2004

Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished per
curiam opinion.

John P. Darouse, Jr., Appellant Pro Se. Kent Pendleton Porter,
OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

John P. Darouse, Jr., a federal prisoner, appeals the

district court’s order adopting the magistrate judge’s

recommendation and denying relief on his petition filed under 28

U.S.C. § 2241 (2000). We affirm in part, and vacate and remand in

part.

Darouse appeals the district court’s dismissal as moot

his claim that the Parole Commission, in violation of his due

process rights, held an untimely revocation hearing on November 11,

2000, a period more than ninety days after the parole warrant was

executed. 18 U.S.C. § 4214(c) (2000). The district court found

this claim moot because Darouse was released from incarceration on

December 21, 2000. A consequence of the parole revocation hearing,

however, was the continuation of Darouse’s parole until

February 17, 2009, beyond his original release date of November 28,

2000. Thus, we conclude that Darouse is still in custody for

purposes of this claim, and there is accordingly a live

controversy. See Spencer v. Kemna, 523 U.S. 1, 8 (1998); Jones v.

Cunningham, 371 U.S. 236, 243 (1963) (holding that parole amounts

to custody under habeas corpus statute). We vacate the district

court’s dismissal of this claim as moot and remand this claim to

the district court for further proceedings regarding the

significance, if any, to the alleged delay in holding Darouse’s

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revocation hearing. See Morrisey v. Brewer, 408 U.S. 471, 488

(1972); Gaddy v. Michael, 519 F.2d 669, 673 (4th Cir. 1975).

We have reviewed the record relating to Darouse’s other

claims and find no reversible error. Accordingly, we affirm as to

the remaining claims for the reasons stated by the district court.

See Darouse v. United States Parole Commission, No. CA-01-137 (E.D.

Va. Mar. 28, 2003). We grant Darouse’s motion to proceed in forma

pauperis. We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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