Pena v. Aguirre

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50448
Summary Calendar
SAMUEL FIACRO PENA,
Petitioner-Appellant,
versus
J. AGUIRRE, Warden - El Paso Prison Camp;
JERRY MALDONADO, Warden - El Paso Prison Camp,
Respondents-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CV-65-DB
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January 2, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
The motion to strike the appellees’ brief is DENIED.
Samuel Fiacro Pena, former federal prisoner #50360-098, appeals
the district court’s denial of his 28 U.S.C. § 2241 application.
In his application, Pena asserted that he never was afforded his
rights as provided in 28 C.F.R. § 2.43(c)(1), which provides that
“[f]ive years after release on supervision, the [Parole]
Commission shall terminate supervision over [a] parolee unless it
is determined, after a hearing ... that such supervision should
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 00-50448
-2-
not be terminated because there is a likelihood that the parolee
will engage in conduct violating criminal law.” Pena requests
that his sentence be corrected and that all Parole Commission
charges be dropped.
This court does not have the authority to grant the remedy
requested by Pena. See Penix v. U.S. Parole Comm’n, 979 F.2d
386, 389 (5th Cir. 1992)(appropriate remedy for the Commission’s
failure to provide a hearing is a mandamus action to compel a
hearing, not termination of the term of probation). Accordingly,
the judgment of the district court is AFFIRMED.
AFFIRMED; MOTION DENIED.