UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HARTMUT GRAEWE, : CIVIL NO: 4:15-CV-02002

 : 

 Petitioner, :

 : (Judge Brann)

v. :

 : (Magistrate Judge Schwab)

WARDEN S. SPAULDING, :

 : 

 Respondent. :

REPORT AND RECOMMENDATION

I. Introduction.

Plaintiff Hartmut Graewe, an inmate presently incarcerated in the Federal 

Correctional Institution at Allenwood in White Deer, Pennsylvania 

(FCI-Allenwood) filed this pro se petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2241. Graewe alleges that the Federal Bureau of Prisons (BOP) 

erroneously determined that he is not eligible for parole. Respondent S. Spaulding 

is the warden at FCI-Allenwood. Because Graewe’s claim has already been 

addressed by the United States District Court for the Northern District of West 

Virginia and the United States Court of Appeals for the Fourth Circuit, we 

recommend that Graewe’s present petition be dismissed as successive. We also 

recommend that Graewe’s request for leave to file a supplemental pleading, his 

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motion for leave to present the sentencing transcript, and his motion to compel be 

denied.

II. Background and Procedural History.

In 1983, Graewe was sentenced in the United States District Court for the 

Northern District of Ohio for the following: 

 20 years for Count 1—“Conspiring with Others in 

Conducting an Enterprise of Racketeer Influenced and 

Corrupt Organizations, in violation of 18 U.S.C. § 1961 

and § 1962(d)”—to run concurrently with Count 2 and 

consecutively to all other counts;

 Life imprisonment for Count 2—“Operating a Continuing 

Criminal Enterprise, in violation of 21 U.S.C. § 848”;

 5 years each for Counts 3 through 21—“Interstate Travel 

in Aid of Racketeering, in violation of 18 U.S.C. § 1952(a) 

and § 2”—to run consecutively to each other, but 

concurrently with Count 2;

 15 years, with a three year special-parole term, for Count 

35—“Possessing and Aiding and Abetting in the 

Possession of, with Intent to Distribute, a Schedule II 

Controlled Substance, to-wit, Cocaine, in violation of 21 

U.S.C. § 841(a)(1) and 18 U.S.C. § 2”—to run 

concurrently with Count 2 and consecutively with all 

other counts; 

 4 years each for Counts 40 through 48, 50, 51, 53-55, 57 

and 58—“Use of a Telephone to Facilitate Distribution of

[a] Scheduled I Controlled Substance, to-wit, Marijuana, 

in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2”—to 

run consecutively to each other, but concurrently with 

Count 2. 

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Graewe v. O’Brien, No. 1:12-CV-103, 2013 WL 676273, at *1 (N.D. W.Va. Feb. 

25, 2013), aff’d, 538 F. App’x 324 (4th Cir. 2013). 

Graewe filed the present petition for a writ of habeas corpus on October 15, 

2015, alleging that the BOP incorrectly determined that his sentence was “life 

(without parole)” and thus erroneously denied him the right to see the Parole Board. 

Doc. 1 at 2. Graewe requests the Court to order his release from custody so he “can 

be deported to Germany” as he is claiming to be a “German National.” Id. at 8. We 

ordered the respondent to show cause why Graewe should not be granted habeas 

relief. The respondent submitted a response and Graewe subsequently filed a

traverse. With leave of Court, the respondent filed a sur-reply brief responding to 

new allegations raised in Graewe’s traverse. Also with leave of court, Graewe then 

filed a sur-traverse.

On May 24, 2016, raising the issue sua sponte, we ordered Graewe to show 

cause why his habeas petition should not be dismissed as barred by 28 U.S.C. 

§ 2244(a) because his claim was previously addressed by the United States District 

Court for the Northern District of West Virginia and the United States Court of 

Appeals for the Fourth Circuit. After Graewe filed a response to this order, we 

ordered the respondent to file a reply, which respondent did on June 27, 2016. On 

July 20, 2016, Graewe filed a request for leave to file a supplemental pleading and a 

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motion for leave to present the sentencing transcript. On August 25, 2016, he filed 

a motion to compel disposition of the petition, in which he repeats the arguments he 

makes in his petition. 

Because the United States District Court for the Northern District of West 

Virginia and the United States Court of Appeals for the Fourth Circuit previously 

addressed the claims that Graewe raises in this case, we recommend that his petition 

for a writ of habeas corpus be dismissed and that his pending motions be denied.

III. Discussion.

When a prisoner files a successive petition for habeas corpus relief, the abuse 

of the writ doctrine may bar his claim. Furnari v. U.S. Parole Comm’n, 531 F.3d 

241, 250 (3d Cir. 2008). “[T]he abuse of writ doctrine precludes inmates from 

relitigating the same issues in subsequent petitions or from raising new issues that 

could have been raised in an earlier petition.” Boardley v. Grondolsky, 343 Fed. 

App’x. 837, 839-40 (3d Cir. 2009) (emphasis in original) (citing McCleskey v. 

Zant, 499 U.S. 467, 489 (1991)). The doctrine is set forth in part in 28 U.S.C. 

§ 2244(a):

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 

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United States 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, except as provided 

in section 2255.

28 U.S.C. § 2244(a) is applicable to successive petitions brought under 28 U.S.C. 

§ 2241. Queen v. Miner, 530 F.3d 253, 255 (3d Cir. 2008). 

“[A] court may grant controlling weight to a denial of a prior application for 

habeas corpus when three criteria are met: (1) the same ground presented in the 

successive application was determined adversely to the applicant on the previous 

application; (2) the previous determination was made on the merits; and (3) ‘the 

ends of justice’ would not be served by reaching the merits of the subsequent 

application.” Furnari, 531 F.3d at 250 (citing Sanders v. United States, 373 U.S. 1, 

9 (1963)). Although the burden generally falls to the government to plead abuse of 

the writ, the court may raise the issue sua sponte as long as it “provides the petitioner 

with notice and an opportunity to respond.” McCarthy v. Warden, USP Lewisburg, 

No. 1:10–CV–1673, 2010 WL 5775089, at *2 (M.D. Pa. Dec. 8, 2010) (citing 

Stanko v. Davis, 617 F.3d 1262, 1271 (10th Cir. 2010) (internal citations omitted)). 

In the present action, we raised the abuse of the writ issue in our May 24, 

2016, Order and subsequently provided Graewe with an opportunity to show cause 

as to why his habeas petition is not barred by 28 U.S.C. § 2244(a). Graewe 

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responded, and the respondent later replied that Graewe’s habeas petition is indeed

barred by § 2244(a). 

“[O]nce the Government has made a claim of abuse of the writ, the burden 

shifts to the petitioner to show that ‘the ends of justice’ would be served by the court 

entertaining his petition, a showing that the petitioner satisfies by supplementing his 

claim by making a ‘colorable showing of factual innocence.’” Furnari, 531 F.3d at 

251 (quoting Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986)).

Graewe previously litigated the claims he sets forth in the present action in a 

§2241 habeas petition filed in 2012 in the United States District Court for the 

Northern District of West Virginia. Graewe, 2013 WL 676273, at *1. There, 

Graewe alleged that the BOP improperly determined that he was not eligible for 

parole. Id. The Northern District of West Virginia rejected Graewe’s claim on the 

merits:

At the time of Graewe’s conviction, 21 U.S.C. § 848(c) 

provided that “[i]n the case of any sentence imposed under this 

section . . . section 4202 of Title 18 . . . shall not apply.” When 

this statute was originally enacted in 1970, the cross-reference 

directed the reader to 18 U.S.C. § 4202, the general parole 

eligibility statute. Congress, however, repealed Section 4202 

on March 15, 1976, and replaced it with a provision that 

provided for the creation of parole commissions. See Parole 

Commission and Reorganization Act, Pub.L. 94–233, 90 Stat. 

219 (1976), codified at 18 U.S.C. §§ 4201–4218 (repealed Nov. 

1, 1987). At the same time, it recodified and incorporated 

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former Section 4202 into 18 U.S.C. § 4205. Id. Nevertheless, as 

Graewe points out, Congress did not enact a corresponding 

change to the cross-reference in 21 U.S.C. § 848(c).

Graewe contends that Section 848(c)’s cross-reference to 

Section 4202, as it was not updated subsequent to the statutory 

reshuffling in 1976, “had nothing whatsoever to do with parole 

eligibility” when he was convicted in 1983. (Dkt. No. 30 at 5). 

Every court to address this issue, however, has found that 

individuals who violated 21 U.S.C. § 848 prior to November 1, 

1987 committed a non-parolable offense. See United States v. 

Bello, 767 F.2d 1065, 1066–67 (4th Cir.1985) (citing the 

relevant version of Section 848(c) and noting that “[b]y statute, 

no parole is available on a sentence imposed for engaging in a 

continuing criminal enterprise”); see also Gallardo v. Quinlan,

874 F.2d 186, 187–88 (3d Cir.1989) (explaining that individuals 

who violated § 848 prior to November 1, 1987, committed a 

non-parolable offense); United States v. Valenzuela, 646 F.2d 

352, 354 (9th Cir.1980) (“Congress clearly intended to make 

parole unavailable to those who violated section 848. There is no 

indication that Congress intended to change this penalty when it 

re-enacted the parole statutes.”). Again, then, the petitioner’s 

arguments stand contrary to established law.

2013 WL 676273, at *2–3 (footnotes omitted). The court also rejected Greawe’s 

contention that 21 U.S.C. § 848(c) is inapplicable to him because that subsection 

was not cited in his indictment or judgment order, as well as his contention that the 

fact that his concurrent sentence for Count 35 included a special-parole term 

indicates that his sentence as a whole was meant to be parole eligible. Id. The 

Northern District of West Virginia denied Graewe’s habeas corpus petition and 

dismissed his case with prejudice. Id. at 3. The Fourth Circuit subsequently 

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affirmed the district court. Graewe v. O’Brien, 538 Fed.Appx. 324 (4th Cir. 2013). 

Thus, the first and second requirements for application of the abuse-of-the-writ 

doctrine are satisfied. 

The third requirement is also satisfied because Graewe has not shown that the 

ends of justice would be served by reaching the merits of his claim. Although 

Graewe contends that a June 19, 2015, Order of the sentencing court demonstrates 

his eligibility for parole, contrary to Graewe’s suggestion, that order does not show 

that Graewe is eligible for parole. Rather, the sentencing court entered its June 19, 

2015, Order in response to Graewe’s “Motion to Correct an Illegal Sentence,” in 

which Graewe alleged that the court had sentenced him to “life without the 

possibility of parole” and he requested that the court redact the “without possibility 

of parole” language from his sentence. See Doc. 6 in United States v. Graewe, 

1:82-cr-00119 (N.D. Ohio). The United States responded to that motion by 

asserting that the words “without the possibility of parole” do not appear on the 

judgment and, therefore, contrary to Graewe’s assertion, there is nothing to redact. 

Id. at Doc. 7. The June 19, 2015, Order denied Graewe’s motion:

Before the Court is Petitioner Harmut Graewe’s Motion to 

Correct Illegal Sentence (Doc. No. 6), asserting the trial court 

erred in sentencing him to life in prison “without possibility of 

parole.” The Response to Motion filed [by] Respondent United 

States demonstrates, however, that Graewe’s life sentence was 

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not imposed without the possibility of parole. The premise of 

his Motion is therefore erroneous. 

Id. at Doc. 8. The June 19, 2015, Order does not show that the court considered 

whether an individual, such as Graewe, who violated § 848 prior to November 1, 

1987, committed a non-parolable offense. The Order is not a material change to 

Graewe’s sentence. Therefore, to the extent that Graewe argues that the sentencing 

court’s Order impacts his present habeas petition, Graewe is wrong. Accordingly, 

Graewe has not met his burden to demonstrate that the “ends of justice” would be 

served if this court were to consider his habeas petition. We therefore recommend 

that Graewe’s present petition be dismissed as successive and that his request to file 

a supplemental pleading, his motion for leave to present the sentencing transcript, 

and his motion to compel be denied.

IV. Recommendation.

Accordingly, WE RECOMMEND that Graewe’s petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2241 be DISMISSED and that his pending 

motions (docs. 18, 19, & 20) be DENIED.

The Parties are further placed on notice that pursuant to Local Rule 72.3:

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 

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28 U.S.C. ' 636 (b)(1)(B) or making a recommendation for the 

disposition of a prisoner case or a habeas corpus petition within 

fourteen (14) days after being served with a copy thereof. Such party 

shall file with the clerk of court, and serve on the magistrate judge and 

all parties, written objections which shall specifically identify the 

portions of the proposed findings, recommendations or report to which 

objection is made and the basis for such objections. The briefing 

requirements set forth in Local Rule 72.2 shall apply. A judge shall 

make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which objection is 

made and may accept, reject, or modify, in whole or in part, the 

findings or recommendations made by the magistrate judge. The 

judge, however, need conduct a new hearing only in his or her 

discretion or where required by law, and may consider the record 

developed before the magistrate judge, making his or her own 

determination on the basis of that record. The judge may also receive 

further evidence, recall witnesses or recommit the matter to the 

magistrate judge with instructions.

Submitted this 7th day of September, 2016.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge

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