Von Kahl v. Kallis

YORIE VON KAHL, Petitioner, v. STEVE KALLIS, Warden Respondent.

Case No. 18-cv-1245-JES

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

August 21, 2019

ORDER AND OPINION

Now before the Court is Petitioner Yorie Von Kahl's pro se Motion to Amend or Alter Judgment Pursuant to Federal Rule of Civil Procedure 59(e) (Doc. 17). After filing his pro se Rule 59(e) Motion, Petitioner retained counsel, who has filed a Memorandum in Support of Petitioner's pro se Motion (Doc. 21). For the reasons set forth below, Petitioner Yorie Von Kahl's Rule 59(e) Motion (Doc. 17) is GRANTED IN PART on the ground that the additional arguments presented in his pro se Reply should have been construed as a motion to amend and the denial of these claims more thoroughly addressed. The remaining grounds in his Rule 59(e) Motion are DENIED. The Court finds that Petitioner is still not entitled to relief on the additional claims raised in his Reply. Accordingly, the Judgment is VACATED, and the Clerk is DIRECTED to enter an Amended Judgment DENYING both Petitioner's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 (Doc. 1) and what the Court now construes as Petitioner's Motion to Amend contained within his Reply (Doc. 14-1).

BACKGROUND

In July 2018, Petitioner filed a Petition under 28 U.S.C. § 2241 (Doc. 1), arguing that the Bureau of Prisons ("BOP") had illegally altered his mandatory parole release date by adding ten years, and that he was entitled to immediate release. While the relevant background was included in the Court's January 2019 Order (Doc. 15) denying the Petition, for convenience, the Court will restate it here. Petitioner is currently serving his sentence imposed on June 2, 1983, in Case No. C3-83-16-03 in the United States District Court for the District of North Dakota. The Judgment ordered:

LIFE on Counts 1 & 2 to run CONCURRENTLY; TEN (10) YEARS on Counts 5,6,7 and 8 to run CONCURRENTLY but to run CONSECUTIVELY to the life sentence on Counts 1 and 2; FIVE (5) YEARS on Count 9 to run CONSECUTIVELY to the life sentence imposed on Counts 1 and 2 and the ten year sentence imposed on Counts 5,6,7 and 8; FIVE (5) YEARS on Count 11 to run CONCURRENTLY with the sentence imposed on Counts 1, 2, 5, 6, 7, 8, and 9.

See Judgment and Probation/ Commitment Order, Resp. App., 33 (Doc 9-2), Pet. at 13 (Doc. 1)). Petitioner was sentenced pursuant to 18 U.S.C. § 4205(b)(2), which provides for release on parole "... at such time as the Commission may determine." Id.

Petitioner's initial parole hearing was on June 19, 1984. See, Pet. at 45 (Doc. 1); Resp. App. 7-9 (Doc. 9-2). A Notice of Action ("NOA"), dated July 20, 1984, continued him to a 10-year reconsideration hearing in June 1995. Id. The NOA further explained that Petitioner had only been in custody for 17 months, that his offense behavior was rated Category 8 because it involved murder, and that his parole guideline was 100+ months' imprisonment. Id.

On June 18, 1986, Petitioner received a statutory interim hearing. See Pet. at 49-50 (Doc. 1); Resp. App. 10-13 (Doc. 9-2). At that time, the BOP had calculated his two-thirds or mandatory parole release date under 18 U.S.C. § 4206(d) to be February 12, 2013. Id. ("On his life plus 15 year sentence, Petitioner can serve at most 30 years which the Bureau calculates to be the two-thirds point of his aggregate term."). The hearing panel recommended that he be continued to a 15-year reconsideration hearing in June 2001; the Parole Commission adopted therecommendation, and Petitioner was advised of the decision by a Notice of Action dated July 17, 1986. Id.

Petitioner also received statutory interim hearings in 1988, 1990, and 1992. See Resp. App. 15-26 (Doc. 9-2). Following each hearing, the Parole Commission made no change in its decision to continue Petitioner to the 15-year reconsideration hearing in June 2001 and no change in its calculation of the two-thirds or statutory mandatory release date under 18 U.S.C. § 4206(d). Id. In 1993, Petitioner appealed the Parole Commission's decision. Resp. App. 27-29 (Doc. 9-2). By Notice of Action dated July 28, 1993, the Parole Commission affirmed the previous decision. Id. On April 17, 1995, Petitioner received another statutory interim hearing, after which the Parole Commission made no change to the previous decision. Resp. App. 30-31 (Doc. 9-2). Respondent states that beginning in 1997, Petitioner waived his statutory interim hearing, and he has continued to waive those hearings through the present. Resp. at 3 (Doc. 9). In Reply, Petitioner disputes that his hearings have been voluntarily waived, but argues that he has been "forced" to waive them after the Parole Commission has "refused" to provide him with needed records. Reply at 32 (Doc. 14-1).

On July 7, 1994, Petitioner became aware that the BOP had recalculated his mandatory release date pursuant to 18 U.S.C. § 4206(d) as February 13, 2023. Pet. at. 4-5 (Doc. 1). Petitioner has repeatedly appealed this action within the BOP. Id. Despite this recalculation by the BOP, a "Federal 15 year Reconsideration Hearing Prehearing Assessment," created on May 4, 2002, by a reviewer in the Parole Commission, again stated that the two-thirds or mandatory release date was February 12, 2013. See Pet. at 22 (Doc. 1).

Petitioner filed this petition under 28 U.S.C. § 2241 (Doc. 1), arguing that the BOP illegally altered his mandatory parole release date in 1994, adding ten years to his mandatoryrelease date. Petitioner argues that this calculation is incorrect, that the BOP had no statutory authority to change this date, and that the BOP effectively usurped the powers of the Parole Commission. Respondent filed a response (Doc. 9). Petitioner filed a timey Reply (Doc. 14-1), which raised four additional grounds of relief: (1) "the BOP's 7/19/2018 Sentencing Monitoring Independent Computation Monitoring Data Printout shows Petitioner's Statutory Release Date as December 22, 2009 and his imprisonment is unlawful," Id. 36-41; (2) the Parole Commission's "August 1984 Amendments to 28 C.F.R. §§ 2.12 and 2.14 violate the Constitution's Ex Post Facto Clause as applied to Petitioner on and since July 17, 1986, and all [Parole Commission Notice of Actions] since then are void and Petitioner's imprisonment unlawful," Id at 41-49; (3) the BOP's retroactive application of 18 U.S.C. § 3585(b) and [Program Statement] 5880.30 to add ten years to Petitioner's Mandatory Release Date" violates due process and does not justify Petitioner's imprisonment, Id. at 50-55; and (4) the BOP's retroactive application of § 3585(b) and Program Statement 5880.30 to recalculate his mandatory release date was an ex post facto violation, Id. at 55-57. His reply brief also included an explanation of why he believes his criminal judgment was obtained by fraud and collusion. Id. at 5-7.

In January 2019, the Court denied Petitioner's Petition, finding that the BOP's calculation of the mandatory release date under§ 4206(d) was correct, and that it was permissible to correct the mandatory release date. Order (Doc. 15). Moreover, the Court found that despite the term "mandatory release date," Petitioner was not entitled to release under § 4206(d) until the Parole Commission conducts a hearing and determines that Petitioner is eligible for release. Id. Accordingly, the Court denied relief.

Petitioner promptly filed a pro se Motion pursuant to Fed. R. Civ. P. 59(e) (Doc. 17), listing the following six errors that he alleges the Court made in its ruling:

1. The judgment has been obtained by collusion with a biased judge and a fraud on the Court

2. The Court grossly misapprehended Petitioner's core claim

3. The court misconstrued and misapplied 18 U.S.C. § 4206(d) which governs petitioner's mandatory parole release date

4. The court misconstrued and misapplied 18 U.S.C. § 4163 which governs petitioner's mandatory good time credit release date

5. The court manifestly erred by summarily rejecting amended grounds advanced by petitioner in his traverse compelled by issues first raised in respondent's response

6. The court manifestly erred by the wholesale disregard, misapplication and failure to recognize and apply controlling supreme court and circuit court precedent to a decisive issue

Rule 59(e) Mot. at 1-2 (Doc. 17).

After filing his Rule 59(e) Motion, Petitioner obtained counsel. Counsel filed a Memorandum in Support of the Rule 59(e) Motion (Doc. 21), intended to "crystallize" but not "displace" Petitioner's pro se Rule 59(e) Motion. In this Memorandum, Petitioner's counsel argues that Petitioner is entitled to immediate release because his statutory release date was listed as "12-22-2009" on BOP's Sentencing Computation document, because his two-thirds release date was listed as "10-15-2009" on BOP's Sentencing Computation document, and/or because his two-thirds sentence should be calculated as 30 years. The Memorandum also argues that while these issues were not brought up until his reply, the Court should address these issues now because Petitioner was proceeding pro se and his pleadings should be construed liberally. Pet. Memo. at 3, n.2 (Doc. 21). Respondent has filed his response (Doc. 22). This Order follows.

DISCUSSION

Petitioner has timely filed a Motion to Alter or Amend Judgment Pursuant to Fed. R. Civ. P. 59(e). "Courts may grant Rule 59(e) motions to alter or amend the judgment if the movantpresents newly discovered evidence that was not available at the time of [the decision] or if the movant points to evidence in the record that clearly establishes a manifest error of law or fact." Miller v. Safeco Ins. Co. of Am., 683 F.3d 805, 813 (7th Cir. 2012) (internal citation omitted). This enables courts to correct their own errors an avoid unnecessary appeals. Id. However, Rule 59(e) motions should not be used "to 'rehash' previously rejected arguments." Vesely v. Armslist LLC, 762 F.3d 661, 666 (7th Cir. 2014).

Here, the Court finds that most of Petitioner's...