parolee could not show that 36-month delay was unreasonable or that it caused him prejudice, he
was entitled only to a writ of mandamus compelling the revocation hearing to be held “...a
remedy which is now moot because the required hearing has been held”).

Although petitioner now apparently intends to use this habeas proceeding to challenge the
penalty assessed against him by the Commission’s examiner at the revocation hearing, to do so
requires the filing of a new habeas corpus petition. Petitioner cannot do this yet, because the
Commission’s decision has just been issued, and petitioner is required to exhaust his
administrative remedies before seeking judicial review of the Commission’s revocation decision.
See Sanchez v. Miller, 792 F.2d 694, 697 (7" Cir. 1986). Moreover, the Court lacks jurisdiction
to review a challenge to the merits of the Commission’s decision, which must be upheld so long
as there is a “rational basis” for the Commission’s decision. See Hanahan v. Luther, supra, at
632. A denial of parole or reparole that merely requires an offender to complete an existing
sentence cannot be cruel and unusual punishment under the Eighth Amendment. See Jonas v.
Wainwright, 779 F.2d 1576. 1577 (11" Cir. 1986) (holding such a challenge to be frivolous).
Thus, not only must petitioner exhaust his administrative remedies to obtain judicial review of
the commission’s revocation decision, he must also state a cognizable claim, which his affidavit

fails to do.

CONCLUSION

For all of the above reasons, this habeas corpus petition is dismissed on the grounds of


This decision was accepted by the Commission and, on January 23, 2002, the
Commission issued a notice of action revoking petitioner’s parole and continuing him to the
expiration of his sentence, in accordance with the recommended decision of the examiner. The
decision states that “the above action is appealable to the National Appeals Board under 28
C.F.R. 2.26.”

DISCUSSION

The only remedy available to an arrested parolee who complains of a delayed revocation
hearing is that the hearing be held. Bryant v. Grinner, 563 F.2d. 871, 872 (7" Cir. 1977). Such a
delay does not violate due process of law, even if unreasonable, unless the parolee can also show
that he was prejudiced in his ability to defend himself at the revocation hearing once it was held.
Hanahan y. Luther, 629, 635 (7" Cir. 1982)(holding that delayed revocation hearing did not
warrant release from custody because it did not cause any prejudice to the parolee that “impaired
his defense”). In this case, although petitioner complains that the penalty assessed against him by
the Commission’s hearing examiner was unduly harsh, he makes no allegation that his hearing
was procedurally unfair, or that his ability to defend himself was prejudiced as a proximate result
of the delay. Petitioner had his opportunity to present his case and to confront and cross-examine
his accuser. More is not required. See Morrissey v. Brewer, 408 U.S. 471, 488 (1972). Thus,
the holding of the revocation hearing on December 27, 2001, fully remedied the delay that was
the subject of petitioner’s habeas corpus petition. Weaver v. Markley, 332 F.2d 34, 36 (7" Cir.
1964).

In other words, this case is moot because petitioner has received all of the relief to which

he is entitled. See Berg v. U.S. Parole Commission, 735 F.2d 378, 379 n.3 (9" Cir. 1984). (where


mootness.

SO ORDERED

ENTERED: 2/12 for

HON. RONALD A. GUZM.
United States Judge


a)

wimare’ CrileF Form (06/97)

\¥ United States District Court, Northern District of Illinois
Name of Assigned Judge Ronald A. Guzman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C 7574 DATE 2/12/2002
CASE THOMAS LITTLE vs. J.F. GRABER, Warden, MCC Chgo.
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.}
DOCKET ENTRY:
qd) o Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) oO Answer brief to motion due. . Reply to answer brief due.
(4) O Ruling/Hearing on set for at
(5) oOo Status hearing[held/continued to] [set for/re-set for] on set for at
(6) O Pretrial conference[held/continued to] [set for/re-set for] on _ set for at .
(7) im Trial[set for/re-set for] on at _-
(8) Oo [Bench/Jury trial] [Hearing] held/continued to ato.
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) General Rule21  O)FRCP41(a)(1) © FRCP41(a)(2).
qo) of [Other docket entry] | ENTER MEMORANDUM OPINION AND ORDER: this habeas corpus
petition is dismissed on the grounds of mootness.
(11) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court, Document
No notices required, umber of notices Nember
Notices mailed by judge’s staff.
Notified counsel by telephone. FEB 13,200
o | Docketing to mail notices.
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION 5
THOMAS LITTLE, FEB 73 zuuz
) No. 01 C 7574
Petitioner, ) Judge Ronald A. Guzman
)
)
v. )
)
) 3. orn
J.F. GRABER, Warden, MCC Chicago, ) FEB 18 022
)
)
)
)
Respondent. )

MEMORANDUM OPINION AND ORDER

On October 1, 2001, petitioner Thomas Little, a federal prisoner at MCC Chicago, filed
the instant petition for writ of habeas corpus complaining that he was a federal parolee who had
been arrested on a warrant issued by the U.S. Parole Commission on November 20, 2000, and
that he had not been given a parole revocation hearing in the time frame allocated by law.
Petitioner requested immediate release from custody.

In response, the respondent told the Court that a revocation hearing was scheduled for
December 27, 2001, that the delay was at least partly of petitioner’s own doing, that petitioner
had been offered a revocation hearing on October 1, 2001, but had requested a continuance, and

that petitioner had no right to be released from custody.

| <2


Petitioner has, since then, submitted an affidavit which blames the Commission for the
delay, but which also admits that, on December 27, 2001, petitioner did have the revocation
hearing as promised by the Commission. The affidavit alleges that the Commission’s hearing
examiner, at that hearing, found petitioner guilty of an assault charge which the State of Illinois
did not prosecute. Petitioner claims that he is not guilty of the assault offense found by the
examiner, and argues that the examiner’s recommended disposition (60 months in prison) is
cruel and unusual punishment. The affidavit concludes by asserting that petitioner does not
belong in prison.

At the hearing, the victim of the assault and battery charge (Charge No. 2) testified that
petitioner had attacked her in a sexual manner and terrified her by threatening her repeatedly with
scissors. (She and petitioner were co-workers and the episode occurred in their workplace.)
Petitioner, who was represented by a court-appointed attorney, gave his exculpatory version of
the episode, arguing that it had been consensual and was being blown out of proportion by the
victim, The examiner also heard testimony from the sheriff's deputy who arrested petitioner.
The examiner concluded, based upon the testimony received, that the victim's story was credible,
and found that petitioner had assaulted the victim to commit a sexual act. The examiner also
found that petitioner had threatened the victim by pointing scissors at her eyes, nose, mouth, and
behind her ear, causing great mental distress. With petitioner’s salient factor score of 4, this
finding produced a guideline range of 48-60 months on the Commission’s guidelines at 28
C.F.R. § 2.20. Because petitioner will be mandatorily released prior to his full term date of
November 7, 2007, which would be within that guideline range, the examiner recommended that

petitioner be continued to the expiration of his sentence.