Jose Matamoros v. Greg Grams , 706 F.3d 783 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2045
JOSE M ATAMOROS,
Petitioner-Appellant,
v.
G REGORY G RAMS, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cv-00704-CNC—Charles N. Clevert, Jr., Judge.
A RGUED O CTOBER 30, 2012—D ECIDED JANUARY 29, 2013
Before B AUER, FLAUM, and W OOD , Circuit Judges.
B AUER, Circuit Judge. In 1983, Jose Matamoros was
sentenced to ten years in prison, with a three-year
special parole term to follow. When the ordinary parole
term for his prison sentence finally expired in 2005,
Matamoros’ parole officer wrote him a letter and
issued a Notice of Discharge which explained that
Matamoros’ parole term had expired and that he was
no longer subject to supervision by the U.S. Parole Com-
2 No. 12-2045
mission. Neither the Commission nor Matamoros’ parole
officer noticed that Matamoros still had the special
parole term left to serve until roughly one month
later, when the Commission issued a Certificate of
Special Parole, nunc pro tunc. About six hours after the
Commission issued the Certificate and a month after
Matamoros received the Notice of Discharge, Matamoros
participated in an armed robbery, for which he was
later sentenced to jail. (Matamoros remains incarcerated
in a Wisconsin state prison as a result of the conviction
and sentence.) Because Matamoros was subject to the
special parole term when he committed the robbery,
the Commission issued a warrant for Matamoros’ arrest
for violating the conditions of his special parole term
release. The arrest warrant was later lodged as a
detainer, and that detainer remains in effect today.
Matamoros petitioned for a writ of habeas corpus in
the U.S. District Court for the Eastern District of Wis-
consin, challenging the legality of the special parole
term imposition, the subsequent lodging of the detainer,
and the Commission’s delayed dispositional review of
the detainer. Matamoros also argued that the govern-
ment should be estopped from enforcing the detainer
because he was mistakenly told he was no longer sub-
ject to the Commission’s supervision. The district court
rejected all of Matamoros’ arguments, and he appealed.
We agree with the district court’s conclusions and affirm.
I. BACKGROUND
A brief description of ordinary parole and special
parole is necessary to understand the issues in this
No. 12-2045 3
case. Before the Sentencing Reform Act of 1984 abolished
parole in federal cases, ordinary parole was the super-
vised release of a prisoner before he had completed
his entire prison sentence. See United States v. Fazzini,
414 F.3d 695, 699 (7th Cir. 2005). The “parolee” was re-
leased from federal custody for good behavior and
served the remainder of his prescribed prison sentence
while out on parole, provided he abided by all the condi-
tions of his release. See 18 U.S.C. §§ 4161 et seq. (1982)
(repealed by the Sentencing Reform Act of 1984, Pub. L.
No. 98-473, 98 Stat. 2027, but remaining in effect for
those sentenced prior to the Act). Special parole, on the
other hand, was a “short-lived instrument of federal
justice” that was statutorily required to be included in
the sentence for certain defendants; it has since been
replaced with “supervised release.” Evans v. U.S. Parole
Comm’n, 78 F.3d 262, 264 (7th Cir. 1996); see 28 C.F.R. § 2.57.
Courts have described special parole as being entirely
different from and in addition to ordinary parole, as it
follows the completion of ordinary parole and subjects
the defendant to reincarceration during the entire
special parole term if its conditions are violated. See
United States v. Bridges, 760 F.2d 151, 155 (7th Cir. 1985).
Keeping that in mind, the foundation of this case can
be traced to 1982 when Matamoros first entered the
federal criminal justice system. That year, he was
indicted and convicted on two counts of criminal drug
activity involving cocaine hydrochloride for conduct
violating 21 U.S.C. §§ 841(a) and 846, and 18 U.S.C. § 2
(1982). On January 12, 1983, the U.S. District Court for
4 No. 12-2045
the Eastern District of Louisiana sentenced Matamoros
to two consecutive five-year terms of imprisonment,
followed by a three-year term of “special parole.”
What followed was a long, complicated series of events;
most of which have no direct bearing on the issues before
us today.1 In short, a pattern of events would be repeated
in which Matamoros would be released from prison
on ordinary parole, violate the conditions of his parole,
and then be taken back into custody and incarcerated.
Violations included being a felon in possession of a
firearm and a dangerous weapon, as well as possession
of illegal substances. This cycle repeated numerous
times until August 3, 2005, when Matamoros’ ordinary
parole term from the two consecutive five-year prison
terms finally expired—over twenty years later.
On August 3, 2005, Matamoros’ parole officer, Daniel
Savasta, prepared a letter to Matamoros titled “Parole
Termination.” In the letter, Savasta said that Matamoros’
federal parole supervision term expired on August 3,
2005. He also asked Matamoros to complete an exit
survey and told him, “Congratulations and good luck!”
Savasta similarly prepared a document titled “Notice
of Discharge,” which he signed and dated on August 4,
2005. In the Notice of Discharge he wrote, “Inasmuch
as you have completed the terms and conditions of your
1
The district court opinion fully explains the timeline between
January 12, 1983, and August 3, 2005. See Matamoros v. Grams,
No. 08-C-0704, 2012 U.S. Dist. LEXIS 45916, at *2-6 (E.D.
Wis. Mar. 31, 2012).
No. 12-2045 5
parole on the date shown above, you are hereby dis-
charged from supervision of this office.” 2
In accordance with Matamoros’ original sentence on
January 12, 1983, Matamoros was to be placed on
special parole for three years following his ten-year
prison term. This additional requirement, however, was
somehow missed by both Savasta and the Commission.
At the time, no one communicated to Matamoros that
he was still subject to special parole even though his
ordinary parole term had expired. Savasta explained
his oversight in an affidavit to the district court:
The special parole term had escaped my attention
(and that of the Commission) earlier. I believe this
is because, while special parole is clearly referenced
in the 1983 judgment of conviction in CR82-356-I, it
is not mentioned in the more recent documents in
Matamoros’s file. I relied upon these more recent
documents when drafting my letter of August 3, 2005.
The Commission became aware of the mistake a short
time later. On September 9, 2005, the Commission issued
a document titled “Certificate of Special Parole, nunc pro
tunc.” 3 The relevant portion of the document provides:
2
The words in the copy of the letter provided to us have
been blacked out. Accordingly, the exact words used here
are taken from the district court opinion.
3
Nunc pro tunc is a Latin phrase meaning “now for then,” and
its use allows a court to treat something done now as having
(continued...)
6 No. 12-2045
It having been made to appear to the United States
Parole Commission that Matamoros, Jose, Register
No. 17373-034, is subject to a special parole term
commencing August 4, 2005, in accordance with the
Drug Abuse Prevention and Control Act, 21 U.S.C.
§ 801, et. seq. with a total of 3 years to be served.
Upon release, the above-named person is to remain
under the jurisdiction of the United States Parole
Commission and will be under the conditions set
forth on the attached Conditions of Release form
until midnight August 3, 2008, and that said releasee
is to remain within the limits of the Eastern District
of Wisconsin.
A notation at the bottom states, “Queued: 09-09-2005
14:34:38 USPO-Eastern District of Wisconsin | BOP-
Oklahoma FTC.” This notation indicates the date and
time of issuance, and the probation office and bureau
of prisons involved.
The record indicates that Savasta placed a call to the
Commission at 2:37 p.m., almost immediately after
the Certificate of Special Parole was issued. A case
analyst at the Commission, Lynne E. Jenkins, wrote the
following report:
USPO called and left message inquiring if there is
a SPT in this case.
3
(...continued)
an earlier effective date. Siddiqui v. Holder, 670 F.3d 736, 749
n.5 (7th Cir. 2012).
No. 12-2045 7
I reviewed file and determined there was a 3 yr SPT
for this case. It does appear to be associated with
the 841 conviction, not the 846, conspiracy.
Prepared and faxed SPT cert, began 8-4-05, ends 8-3-08.
Although no information in the record supports his
assertion, Savasta stated in his affidavit that he also
called Matamoros and informed him about the
additional special parole term:
[W]hile my log of contacts with Matamoros does
not reflect this, I distinctly recall speaking with
Matamoros by telephone (at a cellular telephone
number provided on his business card) during
business hours on September 9, 2005 to inform him of
the special parole term and to request that he come
in to the office. He acknowledged understanding
that he was subject to a special parole term.
Matamoros contends he never received a phone call
from Savasta informing him of the special parole term.
The importance of the special parole term comes to
light as a result of the events that transpired later that
night. At approximately 9:00 p.m. on September 9, 2005,
Matamoros participated in an armed robbery. Officers of
the Milwaukee Police Department responding to the
crime arrested Matamoros on the scene. Matamoros was
in possession of the victims’ jewelry and cash and, at
some point, confessed his involvement to the police.
The Commission became aware of Matamoros’ Septem-
ber 9, 2005 conduct, and on September 19, 2005, issued a
8 No. 12-2045
warrant for Matamoros’ arrest for violating the condi-
tions of his special parole term release.4
On April 24, 2006, a jury convicted Matamoros on four
separate felony counts for his conduct on September 9,
2005: armed robbery, false imprisonment, and two
counts of substantial battery-intended bodily harm.
Matamoros received a fifteen-year prison sentence, to
be followed by five years of extended supervision. He
was sent to the Columbia Correctional Institution
in Portage, Wisconsin, where he remains today.
On October 5, 2006, the U.S. Marshal for the Eastern
District of Wisconsin issued a detainer based on the
federal parole violation warrant issued on September 19,
2005. The purpose of the detainer is to make sure the
U.S. Marshal is notified when Matamoros is discharged
from his state prison sentence so he can be immediately
taken into federal custody for a revocation of parole
hearing. See Moody v. Daggett, 429 U.S. 78, 81 n.2
(1976). Matamoros received a copy of the detainer on
October 10, 2006.
Both parties agree that the detainer affects Matamoros’
incarceration in a number of ways. Matamoros con-
tends the detainer negatively affects him because he
4
As noted in the district court opinion, the record does not
contain the conditions attached to Matamoros’ special parole
term. We presume, and the parties do not dispute, that
they included a provision that Matamoros abide by all
local, state, and federal laws and regulations. See 18 U.S.C.
§ 4209(a) (1982).
No. 12-2045 9
(1) cannot be moved to a lower security-level facility;
(2) is excluded from prison programming; (3) is viewed
as a “more dangerous inmate”; and (4) received a harsher
sentence in his state case. Although, the government
asserts that much of what Matamoros complains of is
the result of his “lengthy and violent criminal history.”
Pursuant to the statutes governing Matamoros’ parole
in effect at the time of his crime and sentence, the Com-
mission was to review the detainer within 180 days
of receiving notice of Matamoros’ incarceration place-
ment. See 18 U.S.C. §§ 4213-14 (1982). The purpose of this
“dispositional review” is to provide the Commission
with an opportunity to determine if the detainer should
stand or be withdrawn. See § 4214(b)(2).
On May 18, 2009, three years after the date on which
the dispositional review was to occur, the Commission
released its decision. Despite Matamoros’ contention
that the detainer should be withdrawn, the Commission
concluded that the detainer should stand and in-
formed Matamoros that the decision was not appealable.
Matamoros initiated this habeas action in an attempt
to have the detainer removed.5 In the district court, he
5
The Commission had not yet conducted a dispositional
review of the detainer at the time Matamoros filed his Petition
for Writ of Habeas Corpus on August 20, 2008. Accordingly,
one of Matamoros’ contentions was that the Commission was
in error for having failed to either conduct a dispositional
review of the detainer or hold a final hearing regarding the
(continued...)
10 No. 12-2045
contended that the reinstatement of parole, the issuance
of the parole violation warrant, and the lodging of the
detainer were illegal. He also argued that the Commis-
sion’s delay in conducting a dispositional review of the
detainer violated the governing statutes, which entitled
him to relief. The district court rejected all of these argu-
ments. As a last-ditch effort, Matamoros argued that
the Commission should be estopped from acting on
the warrant because of Savasta’s issuance of the Notice
of Discharge and his alleged lack of actual notice of the
special parole term before he committed the crimes on
September 9, 2005. The district court dismissed this
contention as well, concluding that Matamoros could
not satisfy all of the elements for estoppel—namely, that
he was ignorant of the fact that he still had a special
parole term to serve after the ordinary parole discharge
on August 3, 2005, and that he reasonably relied on
Savasta’s Notice of Discharge when he engaged in
illegal conduct on September 9, 2005.
Matamoros appealed, and his petition is now before us.
II. DISCUSSION
A district court’s denial of a habeas petition is re-
viewed de novo and its findings of fact for clear error.
5
(...continued)
parole violation. On May 18, 2009, the Commission issued
the decision for its dispositional review, so whether the Com-
mission was in error for having failed to conduct a disposi-
tional review at all is no longer an issue in this case.
No. 12-2045 11
Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005).
Matamoros’ appeal as to why the detainer should be
lifted is based on two contentions: first, that the Com-
mission violated his due process rights, and second,
that we should apply the doctrine of equitable estoppel
and prohibit the Commission from enforcing the
detainer. We address each contention in turn.
A. Due Process Rights
The Due Process Clause of the Fifth and Fourteenth
Amendments prohibits deprivation of life, liberty, and
property without due process of law. U.S. C ONST. amends.
V, XIV. “Due process requires government to follow
reasonable procedures for minimizing mistaken depriva-
tions of liberty. In determining what is reasonable ‘the
court must consider the weight of the interest at stake,
the risk of error, and the costs of additional process.’ ”
Atkins v. City of Chi., 631 F.3d 823, 827 (7th Cir. 2011)
(quoting Hernandez v. Sheahan, 455 F.3d 772, 777 (7th
Cir. 2006)). Matamoros contends his due process rights
were violated because (1) he did not receive adequate
notice of the special parole term, and (2) the Commis-
sion failed to conduct a dispositional review of the
detainer within 180 days, as required by 18 U.S.C.
§ 4214(b)(1) (1982).
1. Adequate Notice
The purpose of notice under the Due Process Clause is
to allow an interested party to challenge the deprivation
12 No. 12-2045
of a protected liberty interest before it occurs. See Gates
v. City of Chi., 623 F.3d 389, 402 (7th Cir. 2010). The case
law involving what type of notice is required under the
Due Process Clause is numerous, and its applicability
wide-spread. See, e.g., Westefer v. Neil, 682 F.3d 679, 684
(7th Cir. 2012) (an inmate requires “some notice” of
the reasons for a particular prison placement before an
administrative review (quoting Hewitt v. Helms, 459
U.S. 460, 476 (1983)); Jones v. Cross, 637 F.3d 841, 845
(7th Cir. 2011) (federal inmates are entitled to written
notice at least twenty-four hours before a hearing
involving revocation of good time credits is held); Garcia
v. Meza, 235 F.3d 287, 290 (7th Cir. 2000) (“Written notice
of forfeiture by certified mail to the claimant’s residence
generally satisfies due process even if the claimant does
not receive actual notice.”). Our sole interest here is on
whether Matamoros was adequately notified of the
special parole term before the Commission issued the
arrest warrant and subsequently lodged a detainer
against him.6 We must look to the particular facts of the
6
If the district court had made a factual determination
that the call between Savasta and Matamoros took place on
September 15, 2005, we would have no problem affirming
the district court’s rejection of Matamoros’ argument on
that basis alone. The district court, however, did not conduct
an evidentiary hearing, so we are unable to rely on
Savasta’s undocumented call. See United States v. Rutledge,
648 F.3d 555, 560 (7th Cir. 2011) (explaining why we defer
to a trial court’s credibility determinations and how we
(continued...)
No. 12-2045 13
case to answer this question. See Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314-15 (1950).
From the outset, a sentencing judge is required to
explain to a defendant the conditions of his criminal
sentence. See United States v. Curby, 595 F.3d 794, 796
(7th Cir. 2010) (“The district court ‘must adequately
explain the chosen sentence to allow for meaningful
appellate review and to promote the perception of fair
sentencing.’ ” (quoting Gall v. United States, 552 U.S.
38, 50 (2007))). A failure to do so may be grounds for
invalidation of the sentence or conviction. United States
v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005) (“A
judge who fails to mention a ground of recognized legal
merit (provided it has a factual basis) is likely to have
committed an error or oversight.”). Matamoros has not
asserted that he was not informed of the special parole
term at his original sentencing in January 1983, and
thus, we assume that he was in fact so notified.
Moreover, Matamoros had additional notice of the
special parole term from many of the documents
associated with his case. Documents that explicitly refer
to a special parole term (or SPT) include the original
judgment of conviction from January 12, 1983; the sup-
plements to the July 13, 1990 warrant application,
dated August 23, 1990, and June 10, 1991; the warrant
application dated April 13, 2000; and the actual April 13,
2000 arrest warrant. A plain reading of the documents
6
(...continued)
cannot defer to anything if the trial court has not made
a decision).
14 No. 12-2045
demonstrates that Matamoros had a special parole
term left to serve after being released from ordinary
parole. If Matamoros turned a blind eye towards the
documents, that is insufficient to negate the adequate
notice we believe they provided.
Our conclusion that Matamoros received adequate
notice of the special parole term is further bolstered by
the statutes governing Matamoros’ drug convictions.
Matamoros was convicted under 21 U.S.C. § 841(a)(1)
(1982). The statute required a sentence including a
term of imprisonment, a fine, or both. § 841(b)(1)(A).
Section 841(b)(1)(A) also stated, “Any sentence imposing
a term of imprisonment under this paragraph shall, in
the absence of such a prior conviction, impose a special
parole of at least 3 years in addition to such term of
imprisonment . . . .” Id. The sentencing judge in 1983
sentenced Matamoros to prison, so Matamoros was
required to also serve a special parole term. The use of
the word “shall” prohibited any flexibility regarding
whether to impose a special parole term beginning after
a term of imprisonment.
Nonetheless, § 841(c) is the provision most damaging
to Matamoros’ contention that he “had every reason to
believe that he was no longer a parolee subject to super-
vision by the Commission” when he committed the
armed robbery on September 9, 2005: “A special parole
term provided for in this section . . . of this title shall be
in addition to, and not in lieu of, any other parole provided
for by law.” § 841(c) (emphasis added). The statute
is clear; Matamoros was required to serve a special
parole term, regardless of how many ordinary parole
No. 12-2045 15
terms he served or when he was finally discharged
from his original prison sentence. Such a situation does
not require our intervention. See United States v.
Batchelder, 442 U.S. 114, 123 (1979) (“So long as over-
lapping criminal provisions clearly define the conduct
prohibited and the punishment authorized, the notice
requirements of the Due Process Clause are satisfied.”); cf.
Bell v. Keating, 697 F.3d 445, 455 (7th Cir. 2012) (describing
why a vague statute may be challenged on the ground
that it violates due process by failing to “provide
definite notice”).
Insofar as Matamoros contends that adequate notice
required him to sign or review a “Special Parole Term
Certificate” before its imposition, he does not direct us
to any case, statute, or regulation that requires this. The
sole authority Matamoros relies on, Chilcote v. Bureau of
Prisons, 874 F. Supp. 229 (N.D. Ind. 1994), does not
support his contention. The case involved a parolee who
was paroled on special parole for the second time. Id. at
230. Instead of being paroled pursuant to a “Certificate
of Special Parole,” the petitioner received a “Certificate
of Parole.” Id. at 231. After the petitioner was taken
into custody on a subsequent (special) parole violation
warrant, he contended, among other things, that his due
process rights were violated because he was not issued
a “Certificate of Special Parole” pursuant to 18 U.S.C.
§ 4209(b) (1982) that set forth the possible ramifications
if his special parole term was revoked. Id. Section 4209(b)
provides:
The conditions of parole should be sufficiently specific
to serve as a guide to supervision and conduct, and
16 No. 12-2045
upon release on parole the parolee shall be given a
certificate setting forth the conditions of his parole.
An effort shall be made to make certain that the pa-
rolee understands the conditions of his parole.
The district court said that § 4209(b) only requires a
parolee to be given a certificate indicating the conditions
of parole, not the ramifications of violating parole.
Chilcote, 874 F. Supp. at 231. Accordingly, because the
certificate the petitioner received contained the condi-
tions of his special parole term, the petitioner was
properly notified of the conditions, regardless of how
the certificate was titled. Id. The case did not address
Matamoros’ contention that adequate notice required
him to sign or review a certificate.
The Commission in this case issued the “Certificate of
Special Parole, nunc pro tunc” before Matamoros
violated its terms. Notwithstanding that Chilcote is not
binding on this Court, we do not read Chilcote or
§ 4209(b) to mean that a parolee automatically lacks
sufficient notice, for due process purposes, if he does
not sign or review a given special parole certificate
before it takes effect. In fact, the Sixth Circuit in Durham
v. U.S. Parole Commission, 306 Fed. Appx. 225 (6th
Cir. 2009) (unpublished), declined to find error in a
nunc pro tunc certificate that was meant to benefit
the petitioner, even though it was not delivered until
approximately seventeen months after its effective date,
because it expedited service and allowed the petitioner
to serve his new federal sentence as soon as possible.
Id. at 231-32. That reasoning is applicable here.
No. 12-2045 17
Had Matamoros stayed out of trouble, the nunc pro tunc
certificate would have allowed him to be released from
special parole at least one month earlier than if his
special parole term began upon its delivery and
Matamoros’ signature, which he contends was neces-
sary. Because the special parole term was required to
begin on August 4, 2005—immediately after his ordinary
parole ended, see 21 U.S.C. § 841(b)-(c) (1982); 28 C.F.R.
§ 2.57(a)-(b)—Matamoros would be raising the exact
opposite challenge if the special parole term was
supposed to end on August 4, 2008, and he violated its
terms on September 1, 2008. (For example, he would
argue that the special parole term should have been in
full effect on August 4, 2005, and terminated on August 4,
2008.) It is undeniable that the Commission made
an initial mistake, but it could not have predicted
Matamoros would commit a forcible felony later that
night on September 9, 2005. For all intents and purposes,
it was acting in accordance with 21 U.S.C. § 841, and
everyone’s best interests, by rectifying Savasta’s over-
sight in the most effective way possible: issuing a
nunc pro tunc certificate. We do not believe that such
an act is the basis for a due process violation.
Because Matamoros had adequate notice of his special
parole term, we find no errors in the Commission’s im-
position of the special parole term, filing of the violator
warrant, or subsequent lodging of the detainer.
2. Delayed Dispositional Review
Matamoros also contends his due process rights were
violated because the Commission did not conduct a
18 No. 12-2045
dispositional review within 180 days of the lodging of
the detainer, pursuant to 18 U.S.C. § 4214(b)(1) (1982).
Section 4214(b)(1) provides in part,
Such detainer shall be reviewed by the Commission
within one hundred and eighty days of notification
to the Commission of placement. The parolee shall
receive notice of the pending review, have an op-
portunity to submit a written application con-
taining information relative to the disposition of
the detainer, and, unless waived, shall have counsel . . .
to assist him in the preparation of such application.
The statute, however, provides no remedy for delayed
action by the Commission, and we do not view a
delayed dispositional review as a constitutional violation
in and of itself (even if the delay is three years, as in this
case). Matamoros must show that he was somehow
prejudiced by the delay. See United States v. Williams, 787
F.2d 1182, 1184 (7th Cir. 1986) (“Absent some showing
that delay of the parole procedures actually caused the
defendant some particular prejudice, the Supreme
Court held the Constitution did not require immediate
hearing.” (citing Moody, 429 U.S. at 86-89)). But we are
hard-pressed to find anything in his brief concerning
how the delayed review affected him, rather than how the
detainer currently affects him. Like the district court,
we glean from the record no prejudice resulting from
the delay that would justify invalidation of the warrant
and detainer.
Finally, to the extent Matamoros contends that he has
no avenue to challenge the detainer until the Commis-
No. 12-2045 19
sion holds a revocation hearing when he is released
from state custody in 2020, the Supreme Court has held
that this alone does not implicate any constitutional
concerns. See Moody, 429 U.S. at 89 (“The Commission . . .
has no constitutional duty to provide petitioner an adver-
sary parole hearing until he is taken into custody as a
parole violator by execution of the warrant.”). The Com-
mission is not obligated to do anything regarding the
detainer until Matamoros is released from state custody
and retaken into federal custody; at that time, a full
revocation hearing should take place.
B. Doctrine of Equitable Estoppel
Matamoros’ last argument is that the Commission
should be equitably estopped from enforcing the
detainer. The doctrine of equitable estoppel is based on
the principle of fairness and is used to prevent a party
from being harmed as a result of actions taken in rea-
sonable reliance of another’s assertions. See Jackson v.
Rockford Hous. Auth., 213 F.3d 389, 394 (7th Cir. 2000); Fred
Ansell, Unauthorized Conduct of Government Agents: A
Restrictive Rule of Equitable Estoppel Against the Government,
53 U. C HI. L. R EV. 1026, 1026-27 (1986). Although often
phrased differently, a petitioner must satisfy four
elements to demonstrate why equitable estoppel should
be applied against a party: (1) the party to be estopped
knows the facts; (2) that party intended for his conduct to
be acted upon or acted in such a manner that the party
asserting estoppel had a right to believe he intended as
such; (3) the party asserting estoppel was ignorant of the
20 No. 12-2045
facts; and (4) the party asserting estoppel reasonably
relied on the other’s conduct to his substantial injury.
Portmann v. United States, 674 F.2d 1155, 1167 (7th Cir.
1982) (quoting TRW, Inc. v. Federal Trade Comm’n, 647
F.2d 942, 950-51 (9th Cir. 1981)). We have also stated that
the party advancing an argument involving estoppel
against the government must additionally demonstrate
some “affirmative misconduct.” Solis-Chavez v. Holder,
662 F.3d 462, 471-72 (7th Cir. 2011).
As an initial matter, both parties acknowledge that
we have not yet evaluated whether equitable estoppel
may be applied in the parole context, and “[i]t is an open
question whether equitable estoppel is [even] available
against the government.” Id. at 471 (citing Office of
Pers. Mgmt. v. Richmond, 496 U.S. 414, 422-23 (1990)). We
previously described the current state of affairs in an im-
migration appeal: “The Supreme Court has never
affirmed a finding of estoppel against the government.
And that is not for lack of review. The Court, in fact, has
‘reversed every finding of estoppel that [it has] re-
viewed.’ ” Gutierrez v. Gonzales, 458 F.3d 688, 691 (7th Cir.
2006) (quoting Office of Pers. Mgmt., 496 U.S. at 422).
But either way, this is not the case to decide whether
equitable estoppel is available against the government
because the record is devoid of any affirmative miscon-
duct on the part of the Commission or Parole Officer
Savasta.
Faced with similar circumstances, the Fifth Circuit said
that “[a] notice of discharge issued by mistake does not
estop the [Commission] from acting on a violator’s
No. 12-2045 21
warrant absent a showing of affirmative misconduct by
the government and a showing that the parolee was
prejudiced.” Ward v. U.S. Parole Comm’n, 233 Fed. Appx.
360, 361 (5th Cir. 2007) (unpublished). Affirmative miscon-
duct requires an affirmative act to misrepresent or
mislead; mere negligence is not enough. LaBonte v.
United States, 233 F.3d 1049, 1053 (7th Cir. 2000).
Here, the Notice of Discharge incorrectly stated that
Matamoros was no longer subject to the Commission’s
supervision. Matamoros, however, is unable to demon-
strate that the notice and letter, although the product of
affirmative acts—to be distinguished from a failure to
discharge an affirmative obligation, which never
amounts to affirmative misconduct, see Lewis v.
Washington, 300 F.3d 829, 834-35 (7th Cir. 2002);
Edgewater Hosp., Inc. v. Bowen, 857 F.2d 1123, 1138 n.8
(7th Cir. 1988), amended by 866 F.2d 228 (1989)—
were anything more than the result of mere negligence.
Savasta provided a plausible explanation for why
he prepared the notice and letter: he looked at the
most recent documents for a case that was over twenty
years old and that had a fairly lengthy procedural pos-
ture. This explanation, coupled with the fact the Com-
mission issued the Certificate of Special Parole prior
to Matamoros’ criminal conduct on September 9, 2005,
indicates that what transpired was more than likely
the result of an inadvertent oversight. We do not view
the record as demonstrating a situation in which Savasta
or the Commission affirmatively concealed a material
fact or engaged in “ongoing active misrepresentations.”
Cf. Watkins v. United States Army, 875 F.2d 699, 707-09
22 No. 12-2045
(9th Cir. 1989). Matamoros urges us to consider that
“it was clearly noted in the Commission’s file that
Matamoros had an additional three-year [special parole]
term to serve,” but we do not see how this conclusory
statement in any way undermines Savasta’s explanation.
Estoppel will only be applied “where justice and fair
play require it.” See Johnson v. Williford, 682 F.2d 868, 871
(9th Cir. 1982). This case is not one of those situations.
Ultimately, Matamoros’ own criminal conduct is the
basis for his continued incarceration and the detainer.
We find nothing unfair about this case that would
justify the extreme remedy of applying the doctrine of
equitable estoppel against the government.
III. CONCLUSION
For the reasons explained above, we A FFIRM the
denial of Matamoros’ habeas petition.
1-29-13