# Griffin v. Fleischman

> District Court, E.D. Louisiana · May 5, 2023

URL: https://www.frixlaw.com/law-library/cases/10189349

## Case

- **Court:** District Court, E.D. Louisiana
- **Decided:** May 5, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JASON LEON GRIFFIN CIVIL ACTION

VERSUS NO. 21-2259

DANIEL FLEISCHMAN SECTION “B”(1)

ORDER AND REASONS

Before the Court are Jason Leon Griffin’s petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241 (Rec. Doc. 3), Daniel
Fleischman’s answer to petition (Rec. Doc. 9), petitioner’s reply
in support of his petition and an objection (Rec. Docs. 10 and
11). After careful consideration,
IT IS ORDERED that Jason Leon Griffin’s petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (Rec. Doc. 3) is
dismissed. The petition challenges the constitutionality of a
parole detainee based of petitioner’s arrest on new law violations
while on parole and failing to maintain contact with his parole
officer.1
FACTS AND PROCEDURAL HISTORY
On October 17, 2017, petitioner Jason Leon Griffin was

1 Subsequent to one of the new arrests, and after the instant petition was
filed, Griffin was reportedly convicted after jury trial and eventually
sentenced on September 22, 2022 to a 40 year imprisonment term for possession
with intent to distribute heroin and a concurrent 20 year sentence for
possession with intent to distribute methamphetamine. See
https://www.an17.com/crime/courts/slidell-man-sentenced-to-40-years-for-
possession-with-intent-to-distribute-heroin-meth/article_7cb8f4b0-41bd-11ed-
86db-4bfc8552f4cd.html
sentenced to ten years of hard labor for introducing contraband
into a penal facility in violation of Louisiana Revised Statute
section 14:402. Rec. Doc. 9 at 1, 4; Rec. Doc. 9-1 at 36. On May

17, 2020, petitioner was released from the Louisiana Department
of Public Safety and Corrections and ordered to “remain within
the limits of Covington District Probation and Parole Office until
May 13, 2027. Rec. Doc 9-1 at 20. The petitioner was then arrested
for possession with intent to distribute heroin and possession
with intent to distribute methamphetamine on September 9, 2020.
Rec. Doc. 9 at 4; Rec. Doc. 9-1 at 17. Petitioner was allowed to
post bail for this offense, which he did on November 10, 2020.
Rec. Doc. 9 at 4. While the district attorney was in process of
prosecuting petitioner’s charges, petitioner ceased contacting
his parole officer on or about March 4, 2021. Rec. Doc. 9-1 at
17.

On August 10, 2021, petitioner was arrested for criminal
conspiracy. Id. at 11. Two days later, the Louisiana Committee on
Parole, issued a warrant ordering that petitioner “should be
retaken and reimprisoned within the Department of Public Safety
and Corrections.” Id. at 16. Petitioner was not served until
October 18, 2021 with “Notice of Preliminary Hearing” paperwork.
See id. at 11-12. An activity report dated August 26, 2021, states
that petitioner “has not been able to be served with Notice of
Preliminary Hearing paperwork due to COVID restrictions at the
St. Tammany Parish Jail.” Id. at 2. It notes that petitioner would
be served “as soon as the COVID restrictions have been lifted.”
Id.

This Notice of Preliminary Hearing explained that “an alleged
violator shall be afforded a preliminary hearing conducted by an
independent hearing officer, to determine if there is probable
cause to believe there has been a violation of the conditions of
his parole.” Id. at 10. Moreover, the alleged violator is entitled
to “written notice as to the time and place of the preliminary
hearing and the specific violation(s) he/she is alleged to have
committed.” Id. After the preliminary hearing, the hearing officer
then determines “if there is probable cause to hold the offender
for the final decision of the Parole Board on a revocation.” Id.

Any alleged violator “has a right to a revocation hearing before
the Parole Board on his written request,” if held more than sixty
days. Id.
The parole officer allegedly explained these rights to
petitioner, but petitioner elected to defer the preliminary
hearing. Id. at 11. Petitioner initialed and dated a provision
stating, “I hereby defer my preliminary hearing and agree to
remain in custody (jail) until the felony charge(s) pending
against me are disposed of. I further agree to postpone my final
parole revocation hearing before the Parole Board until the felony
charge(s) pending against me are disposed of.” Id. On November 5,
2021, the Louisiana Board of Pardons and Parole sent petitioner
a letter stating that the Parole Board would “not order your
return for a revocation hearing until the disposition of your

pending charges.” Id. at 6. It continued that if petitioner
desired “to be returned for a revocation hearing at any time,
[petitioner is] instructed to write to the Parole Board at the
above address.”2 Id. Upon receiving this request, the Parole Board
stated that an officer would contact petitioner “regarding waiving
or conducting the preliminary hearing deferred at your request.”
Id. Neither party provided any evidence that petitioner requested
a preliminary hearing or to be returned for a revocation hearing.
See Rec. Docs. 3, 9-1, 10. Currently, petitioner is in custody at
St. Tammany Parish Jail. Rec. Doc. 9 at 6.
On December 3, 2021, petitioner filed the instant petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241, arguing

that his parole detainer violated the Constitution. Rec. Doc. 3.
The District Attorney’s Office for the 22nd Judicial District for
the Parish of St. Tammany answered the petition on February 25,
2022. Rec. Doc. 9. Petitioner then filed a reply on March 18,
2022. Rec. Doc. 10.3

2 Notably, the letter provided in the record does not seem to include an address.
See Rec. Doc. 9-1 at 6.

3 On February 17, 2022 and April 18, 2022, petitioner submitted two responses,
respectively, requesting that the Court “deny respondent’s motion for extension
of time” to answer. See Rec. Docs. 8, 11. However, these responses were filed
after the Court granted respondent’s motion. See Rec. Docs. 8, 11. Accordingly,
the Court finds petitioner’s response to respondent’s motion for extension of
I. LAW AND ANALYSIS
A. § 2241 Standard

28 U.S.C. § 2241 applies where a defendant challenges “the
manner in which a sentence is being executed.” Foster v. NFN
Warden, Fed. Det. Ctr., Seagoville, 31 F.4th 351, 353 n.1 (5th
Cir. 2022). It is not the appropriate vehicle for challenging the
legality of the petitioner’s conviction or the validity of the
petitioner’s sentence. United States v. Avila, 721 F. App’x 406,
406 (5th Cir. 2018) (citing Leal v. Tombone, 341 F.3d 427, 427-30
(5th Cir. 2003)).
Nevertheless, a petitioner seeking relief under § 2241 “must
first pursue all available administrative remedies.” Gallegos-
Hernandez v. United States, 688 F.3d 190, 194 (5th Cir. 2012).
Additionally, “[i]f the petitioner did not fairly present the

substance of his claims to the state courts, the petition must be
dismissed so that the state courts may have a fair opportunity to
determine the claims.” Avila v. Reynolds, No. A-22-CV-00046-RP,
2022 WL 299685, at *3 (W.D. Tex. Feb. 1, 2022) (quoting Dispensa
v. Lynaugh, 847 F.2d 211, 217-18 (5th Cir. 1988)) (cleaned up).
This doctrine compels a habeas petitioner to “fairly appraise the

time to answer moot. Even so, the Court’s decision to grant respondent a short
extension of time to answer did not seem to have prejudiced petitioner. See
Rec. Doc. 9 (filing an answer to the instant petition only two weeks after the
initial deadline); Rec. Docs. 8, 11 (presenting no evidence of prejudice).
highest court of his state of the federal rights which were
allegedly violated and to do so in a procedurally correct manner.”
Vallejo v. Whittington, No. 5:22-CV-00149, 2022 WL 1819046, at *2
(W.D. La. Mar. 14, 2022) (quoting Deters v. Collins, 985 F.2d 789,

795 (5th Cir. 1993)) (internal quotation marks omitted).
“Exceptions to the exhaustion requirement are appropriate
where the available administrative remedies either are unavailable
or wholly inappropriate to the relief sought, or where the attempt
to exhaust such remedies would itself be a patently futile course
of action.” Id. (quoting Fuller v. Rich, 11 F.3d 61, 62 (5th Cir.
2012)). These exceptions, however, only apply in “extraordinary
circumstances.” Fillingham v. United States, 867 F.3d 531, 535
(5th Cir. 2017). “The burden of proof for demonstrating the
futility of administrative review rests with the petitioner.” Id.
B. Petitioner Failed to Exhaust Administrative and State Court
Remedies

Here, there is no record showing that 6petitioner has
exhausted administrative or state court remedies before seeking
relief under § 2241. See generally Rec. Docs. 3, 10. Petitioner
claims that he was detained as a pretrial detainee, not yet found
guilty of any alleged crimes, and that he is prohibited from
release on bond due to a parole detainer. Rec. Doc. 3 at 7. Indeed,
it appears petitioner is being held pursuant to a parole detainer,
but this detention does not warrant habeas relief at this time.
See Rec. Doc. 9-1 at 6, 11.
When a parolee is charged with violating parole, the parolee

is entitled to a preliminary hearing. La. Admin. Code tit. 22, Pt
XI, § 1105. “The purpose of the preliminary hearing is to determine
if there is probable cause that the parolee has violated the
conditions of his parole.” Id. This hearing must “be conducted
within a reasonable time following detention.” Id. Moreover, prior
to the hearing, “written notification will be furnished to the
parolee advising him of,” inter alia, “his rights at the hearing.”
Id. The parolee may also “request deferral of the preliminary
hearing pending disposition of new felony charges.” Id.
Although it appears that petitioner was served a notice of
preliminary hearing over two months after he was arrested, when he
was served with this notice on October 18, 2021, petitioner very

clearly selected the option to “defer preliminary hearing.” Rec.
Doc. 9-1 at 11. Within this selection it states: “I hereby defer
my preliminary hearing and agree to remain in custody (jail) until
the felony charge(s) pending against me are disposed of. I further
agree to postpone my final parole revocation hearing before the
Parole Board until the felony charge(s) against me are disposed
of.” Id. Petitioner initialed and dated this choice, as well as
signed at the end of the form. Id. at 11-12. Petitioner never
disputes the validity of this deferral. See generally Rec. Docs.
3, 10.4
After deferring his preliminary hearing, the Board of Pardons

and Parole, sent petitioner a letter on November 5, 2021 detailing
the process for requesting a revocation hearing. See id. at 6. The
letter states “the Parole Board will not order your return for a
revocation hearing until the disposition of your pending charges.”
Id. It continues, “[i]f you desire to be returned for a revocation
hearing at any time, you are instructed to write to the Parole
Board at the above address. Upon receipt of your request, the
Parole Officer will contact you regarding waiving or conducting

4 In petitioner’s reply, he seems to argue that he was not given notice of a
preliminary interview/hearing within thirty days of arrest as allegedly
required, and that this delay presents a due process violation. See Rec. Doc.
10 at 2-6. In support of this assertion, petitioner cites three out-of-circuit
cases. See id. The Court is not required to reach this issue because it finds
that petitioner has not exhausted his administrative or state remedies. See,
e.g., Johnson v. Cain, No. 15-310, 2015 WL 10438640, at *6 (E.D. La. June 4,
2015). Regardless, the cases petitioner cites are inapposite. Meador v. Knowles
does acknowledge that a parole board’s commits a due process violation when a
“delay in holding a revocation hearing is both unreasonable and prejudicial.”
990 F.2d 503, 506 (9th Cir. 1993). Nevertheless, it does not state that any
failure to serve the parolee with a notice of preliminary hearing after thirty
days is a due process violation. See id. Covington v. State relies on an Alaska
state statute requiring that the parole board “hold a final revocation hearing
no later than 120 days after a parolee’s arrest.” 938 P.2d 1085, 1088 (Alaska
1997). However, this statute is not applicable here and petitioner does not
present any comparable Louisiana statute or regulation. See id.; see also Rec.
Doc. 10. Finally, Ellis v. District of Columbia states that “final revocation
hearings must be held within 30 days of execution of parole violator warrants.”
84 F.3d 1413, 1424 (D.C. Cir. 1996). But like with Covington, the applicable
statute in Ellis is a District of Columbia Code, not a Louisiana regulation,
which means the thirty-day restriction does not apply here. See id. In this
case, Louisiana law only seems to require a preliminary hearing “be conducted
within a reasonable time following detention.” La. Admin. Code tit. 22, Pt XI,
§ 1105. However, whether serving petitioner with a notice of preliminary hearing
over two months after arrest was reasonable is a question to be answered if
petitioner exhausts administrative and state court remedies. See Gallegos-
Hernandez, 688 F.3d at 194.
the preliminary hearing deferred at your request.” Id. Curiously,
the letter provided to the Court does not include an address in
which petitioner could have sent a letter. See id. However,

petitioner never asserts that he lacked the appropriate address
for requesting a revocation hearing. See generally Rec. Docs. 3,
10. Additionally, there is no reliable record that petitioner ever
requested a revocation hearing to the Board of Pardons and Parole
or to a Parole officer. See generally Rec. Doc. 9-1. Accordingly,
petitioner has not exhausted administrative remedies for attaining
a revocation hearing and reviewing the status of his custody with
the Louisiana Department of Public Safety and Corrections. See
Rec. Docs. 3, 10.
Moreover, petitioner has also failed to exhaust state court
remedies. See Vallejo, 2022 WL 1819046, at *2. Under Louisiana
law, a parolee may seek judicial review “for the denial of a

revocation hearing under R.S. 15:574.9.” La. Stat. Ann.
§ 15:574.11 (2022) (“No prisoner or parolee shall have a right of
appeal from a decision of the committee [on parole] . . . except
for the denial of a revocation hearing under R.S. 15:574.9.”).
Petitioner claims he is being held in violation of the Fourteenth
and Eighth Amendments. Rec. Doc. 3 at 7-8. Yet, the record does
not reflect that petitioner requested a revocation after electing
to defer his preliminary hearing or that a revocation hearing was
ever denied. See generally Rec. Docs. 3, 9-1, 10. The record also
does not demonstrate that petitioner sought judicial review in
Louisiana state court. See generaily Rec. Docs. 3, 9-1, 10. Nor
does petitioner provide any reason for failing to properly exhaust
state court remedies before filing his § 2241 habeas petition. See
generally Rec. Docs. 3, 9-1, 10. As petitioner did not request a
revocation hearing with the Parole Board, provide evidence that
the Parole Board denied this request, or provide evidence that he
sought review within the Louisiana Court system, petitioner’s
request for § 2241 habeas relief is inappropriate at this time.
See, @.g., Johnson v. Cain, No. 15-310, 2015 WL 10438640, at *6
(E.D. La. June 4, 2015) (dismissing petitioner’s writ of habeas
corpus under § 2241 for failure to exhaust state court and
administrative remedies); Overbey v. Miss. Dep’t of Corr., No.
4:16-CV-225-DMB-RP, 2017 WL 4274860, at *3 (N.D. Miss. Sept. 26,
2017) (same); Vallejo, 2022 WL 1819046, at *2 (same).
New Orleans, Louisiana, this — Sth_ day of May, 2023

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10189349. Public record. Not legal advice.