Hertmut Graewe v. Warden Allenwood FCI
691 F. App'x 61
| 3rd Cir. | 2017Background
- In 1983 Graewe was convicted in the N.D. Ohio of, among other counts, operating a continuing criminal enterprise under 21 U.S.C. § 848 and received life imprisonment.
- The BOP determined Graewe was not eligible for federal parole based on the § 848 conviction.
- In 2012 Graewe filed a § 2241 habeas petition challenging BOP’s parole-eligibility determination; the N.D. W. Va. District Court denied it and the Fourth Circuit affirmed on appeal.
- In October 2015 Graewe filed a second § 2241 petition in the M.D. Pa., again challenging parole eligibility; the Magistrate Judge treated the petition as successive and recommended dismissal under the abuse-of-the-writ rule (28 U.S.C. § 2244(a)).
- The District Court adopted the Report & Recommendation and denied the petition; Graewe appealed to the Third Circuit, which exercised plenary review of legal issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Graewe’s 2015 § 2241 petition is barred as successive/abuse of the writ | Graewe renewed his challenge to BOP’s parole-eligibility determination and relied on a 2015 sentencing-court order to justify reconsideration | The claim was previously adjudicated in 2012–13; § 2244(a) bars successive habeas petitions absent showing that the ends of justice require reaching the merits | Petition is successive; Graewe failed to show the ends of justice, so dismissal affirmed |
| Whether § 2241 is a proper vehicle to challenge federal parole determinations | Graewe used § 2241 to attack BOP parole determination | Government conceded § 2241 can be used but argued procedural bars apply | Court reiterated § 2241 is proper for parole challenges but procedural limits apply |
| Whether Graewe’s reliance on a 2015 sentencing-court order supports a successive petition | Graewe asserted the new order changes his parole-eligibility status | Government argued the order did not provide new grounds warranting relief or excuse successive filing | Reliance on the 2015 order did not overcome successive-petition bar |
| Whether Graewe is entitled to parole based on pre-1987 § 848 conviction | Graewe implicitly argued for eligibility | Government pointed to precedent holding § 848 violations before Nov. 1, 1987 are non-parolable | Court cited binding precedent that § 848 pre-Nov. 1, 1987 convictions are non-parolable and affirmed denial |
Key Cases Cited
- Furnari v. U.S. Parole Comm’n, 531 F.3d 241 (3d Cir. 2008) (§ 2241 is appropriate to challenge federal parole decisions)
- Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001) (procedural law on habeas review and parole challenges)
- Queen v. Miner, 530 F.3d 253 (3d Cir. 2008) (applying § 2244(a) limits to § 2241 successive petitions)
- Gallardo v. Quinlan, 874 F.2d 186 (3d Cir. 1989) (holding § 848 violations committed before Nov. 1, 1987 are non-parolable)
- United States v. Bello, 767 F.2d 1065 (4th Cir. 1985) (noting continuing criminal enterprise is non-parolable)
- United States v. Valenzuela, 646 F.2d 352 (9th Cir. 1980) (concluding Congress intended parole be unavailable for § 848 violators)