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UNPUBLISHED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Affirmed in part; vacated and remanded in part by unpublished per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Unpublished opinions are not binding precedent in this circuit.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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