United States v. Tubwell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-60040
Summary Calendar
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

versus

ROBERT CLYDE TUBWELL, a/k/a
Robert Earl Tubwell, Defendant-Appellant.

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Appeal from the United States District Court for the
Southern District of Mississippi
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(October 24, 1994)

Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Pro se Defendant-Appellant Robert Clyde Tubwell ("Tubwell")

appeals the district court's denial of his petition for habeas

corpus. We affirm.

FACTS AND PROCEDURAL HISTORY

On May 13, 1976, Tubwell was charged with two counts of making

false statements in connection with the purchase of a firearm in

violation of 18 U.S.C. § 922(a)(6) and § 924(a). At the time he

was charged and taken into federal custody, Tubwell was in state

custody awaiting trial on unrelated state charges. He subsequently

pleaded guilty to the first count in federal court and was

sentenced to a five-year term of imprisonment. He was returned to

state custody in Mississippi where he was sentenced to ten years

for armed robbery. On February 10, 1986, Tubwell completed his
state prison sentence and was delivered to a federal prison in

Texas to complete his five-year term.

While in federal custody, Tubwell filed motions pursuant to

FED. R. CRIM. P. 35 and 28 U.S.C. § 2255, in which he argued that

his federal sentence should have run concurrently with his state

sentence. The district court denied both motions, and this Court

affirmed the denial of the motions on appeal. On December 9, 1986,

he was released on federal parole. While still on federal parole,

Tubwell was arrested by the State of Mississippi and subsequently

convicted of grand larceny and armed robbery. In August 1991 he

received a "Notice of Action" from the United States Parole

Commission notifying him of the scheduling of his federal parole

revocation hearing in July 1993.

In August 1992, Tubwell filed a Motion to Show Cause. He

contended that his state sentence was imposed to run concurrently

with his federal sentence and any sentence arising from his federal

parole violation. He requested that his federal parole revocation

proceedings be initiated so that he could complete his federal

sentence. Tubwell also argued that he was entitled to credit for

time served, and that his federal sentence should be declared

completely served because the federal authorities refused to

proceed with his parole revocation hearing. The district court

denied the motion, and this Court affirmed on appeal, concluding

that Tubwell was not entitled to an immediate parole revocation

hearing.

On September 21, 1993, Tubwell filed a "MOTION FOR ORDER TO

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SHOW CAUSE OR FOR RELIEF FROM SENTENCE," which is before this Court

on appeal. He contended that his intervening state sentence

expired on May 6, 1993, thereby requiring the Parole Commission to

execute its parole revocation warrant even though he remains in

state custody for a sentence imposed for another offense prior to

February 1986. However, the Commission took no action to execute

the warrant. Tubwell also argued that the Parole Commission denied

him due process by sending him notice that a dispositional

revocation hearing would be conducted in July 1993 and not acting

on it.

Addressing Tubwell's motion as a § 2255 motion, the district

court determined that Tubwell's argument concerning his entitlement

to a parole revocation hearing at the time of the expiration of the

intervening state sentence was previously addressed and ruled on in

response to a prior motion, and that the issue was barred under

Rule 9(b) of the Rules Governing 28 U.S.C. § 2255 Proceedings. The

court further determined that Tubwell had "cause" for failing to

raise the notice issue in his prior motion because the scheduled

hearing date had not matured at the time he filed the motion.

However, the court also found that the notice did not create a

liberty interest, and that the Parole Commission's failure to hold

a parole revocation hearing did not result in a denial of due

process.

DISCUSSION

The district court and the Government characterize Tubwell's

"MOTION FOR ORDER TO SHOW CAUSE OR FOR RELIEF FROM SENTENCE" as a

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§ 2255 motion. However, Tubwell's motion is more properly

construed as a petition for habeas corpus pursuant to 28 U.S.C. §

2241 because he is challenging the manner in which his sentence is

being executed rather than the validity of his conviction and

sentence. United States v. Brown, 753 F.2d 455, 456 (5th Cir.

1985). Therefore, we will address Tubwell's motion as a habeas

corpus petition under 28 U.S.C. § 2241.

Federal Custody

Tubwell argues that the issue of the Government's obligation

to take immediate custody upon the termination of his intervening

state sentence has not been previously addressed, and therefore

constitutes a "new ground" for habeas relief. In support of his

argument, Tubwell relies upon this Court's refusal to review the

issue during the appeal of his prior Motion to Show Cause filed in

August 1992. In that appeal, this Court declined to review the

issue because it was raised for the first time in Tubwell's reply

brief.

Tubwell's reliance on this Court's statement concerning the

issue raised in his reply brief in his August 1992 Motion to Show

Cause is in error because he has raised the same legal issue that

this Court addressed and resolved in the prior motion. Section

2244(a), which applies to a § 2241 habeas petition, provides:

No circuit or district judge shall be required to
entertain an application for a writ of habeas corpus to
inquire into the detention of a person pursuant to a
judgment of a court of the United Sates if it appears
that the legality of such detention has been determined
by a judge or court of the United States on a prior
application for a writ of habeas corpus and the petition
presents no new ground not heretofore presented and

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 determined, and the judge of the court is satisfied that
the ends of justice will not be served by such inquiry.

28 U.S.C. § 2244(a). In his August 1992 motion, Tubwell argued

that he was entitled to be taken into federal custody for parole

revocation proceedings at the time of his detention by state

authorities in May 1988 because his state sentence had been imposed

to run concurrently with the federal sentence. In his instant

motion, he argues that the federal authorities were required to

hold a revocation hearing at the time that his state sentence was

completed in 1993. However, he acknowledges that he remains in

state custody on another charge. Although Tubwell's argument is

based on an additional factual development, the termination of his

intervening state sentence, the legal issue remains the same as the

issue raised in his August 1992 motion, that is, whether the Parole

Commission is required to initiate parole revocation proceedings

while a defendant remains in state custody. This issue was

addressed in the resolution of Tubwell's prior appeal. See Moody v.

Daggett, 429 U.S. 78, 86-88, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976).

Therefore, we find that Tubwell has failed to raise a new ground

for habeas relief, thereby constituting an abuse of the writ under

§ 2244(a).

Parole Commission's Revocation Hearing Scheduling Notice

Tubwell contends that under federal regulations he was

entitled to a review of his federal parole violation warrant within

a specific time, and that the Parole Commission had the authority

following the dispositional review to issue the notice he received

scheduling a revocation hearing. He argues that the Commission's

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October 1993 memorandum letter stating that the scheduling notice

Tubwell received was erroneous is contrary to federal regulations,

and that the regulations and notice itself create a liberty

interest in having his parole revocation hearing in accord with the

notice.

We find that because Tubwell did not argue that he was

entitled to a revocation hearing based on his receipt of the

scheduling notice in his prior motion, he has raised a new ground

for habeas relief. The Supreme Court's decision in McCleskey v.

Zant1, guides our analysis. In McCleskey, the Court addressed the

"abuse of the writ" test in context of a § 2254 petition, holding

that although a second or subsequent habeas petition which raises

a claim for the first time is generally regarded as an abuse of the

writ, failure to raise the ground in an initial petition will be

excused if the petitioner can show cause for his failure to raise

the claim and prejudice from the errors which form the basis of his

complaint; or that refusal to hear the claim will result in a

fundamental miscarriage of justice. Id. at 1470. The Court also

noted that the language of § 2255 has been construed "to be the

'material equivalent' of the abuse standard in § 2244." Id. at 1465

(quoting Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 1076,

10 L.Ed.2d 148 (1963)). This Court has already extended the

McCleskey test to § 2255 motions. See United States v. Flores, 981

F.2d 231, 235 (5th Cir. 1993). We have not decided whether the

McCleskey "cause" and "prejudice" test applies to § 2244 motions,

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499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991)

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but we now hold that it does.

The district court properly determined that Tubwell

demonstrated "cause" for failing to raise the issue concerning the

Parole Commission's scheduling notice in his prior motion.

Although Tubwell received the notice in August 1991, prior to

filing his previous motion in August 1992, he could not argue that

he had been deprived of any rights arising under the notice until

the Commission failed to hold a hearing in July 1993.

However, Tubwell has failed to demonstrate prejudice. He

argues for the first time on appeal that federal regulations

further support his argument that the notice gave rise to a liberty

interest in a parole revocation hearing. A regulation may create

a protected liberty interest if it uses mandatory language to place

a substantive limit on official discretion. See Olim v. Wakinekona,

461 U.S. 238, 249, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). The

provision Tubwell relies upon provides:

If a prisoner is serving a new state...sentence, the
Regional Commissioner, following a dispositional record
may:...Order a revocation hearing to be conducted by a
hearing examiner or an official designated by the
Regional Commissioner at the institution in which the
parolee is confined.

28 C.F.R. § 2.47(c)(ii) (1993). The language of the regulation

reflects that the decision whether to conduct a revocation hearing

following a review is discretionary. Therefore, the regulation

does not create a liberty interest in receiving a parole revocation

hearing at any particular time in the review process.

Nor does the Parole Commission's notice contain language

creating a liberty interest in a hearing in July 1993. Dated

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August 1, 1991 and sent by the Commission to the state penitentiary

and Tubwell, the notice stated, "LET THE DETAINER STAND AND

SCHEDULE FOR A DISPOSITIONAL REVOCATIONAL HEARING 7/93." On its

face, the notice did not contain mandatory language placing limits

on the discretion of the Commission with respect to the scheduling

of the parole revocation hearing. Tubwell has not demonstrated

that the notice itself, or in conjunction with the regulations,

creates a liberty interest in an immediate revocation hearing.

Therefore, we find that the district court did not err in denying

Tubwell habeas relief based on this claim.

Evidentiary Hearing

Tubwell contends that the district court erred in failing to

hold an evidentiary hearing and in failing to appoint counsel. He

argues that a hearing is necessary to challenge the factual dispute

arising from the Parole Commission's October 1993 memorandum letter

stating that the scheduling notice Tubwell received was erroneous.

"To receive a federal evidentiary hearing, the burden is on

the habeas corpus petitioner to allege facts which, if proved,

would entitle him to relief." Ellis v. Lynaugh, 873 F.2d 830, 840

(5th Cir.), cert. denied, 493 U.S. 970, 110 S.Ct. 419, 107 L.Ed.2d

384 (1989). An evidentiary hearing is not required if the record

is complete or the petitioner raises only legal claims that can be

resolved without the presentation of additional evidence. Id.

Tubwell has not alleged any facts which, if proved at a

hearing, would entitled him to habeas relief. He has failed to

submit any evidence demonstrating that the Parole Commission's

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interpretation of its regulations is erroneous or that the

regulations have been interpreted to require a parole revocation

hearing upon the issuance of a scheduling notice. We find that

Tubwell has not demonstrated that he is entitled to an evidentiary

hearing. Nor has he demonstrated that the interests of justice

would be served by the appointment of counsel. See Schwander v.

Blackburn, 750 F.2d 494, 502 (5th Cir. 1985).

CONCLUSION

Based on the reasons articulated above, we AFFIRM the judgment

of the district court.

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