David Speaks, Petitioner-appellant, v. U.S. Parole Commission; Department of Justice, Respondents-appellees, 25 F.3d 1058 (10th Cir. 1994)

ORDER AND JUDGMENT¹ 

Plaintiff-Appellant has agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.2. Defendant-Appellee United States Parole Commission did not file a brief on appeal. The case is therefore ordered submitted without oral argument.

Plaintiff-Appellant David Speaks was convicted in Oklahoma state court for possession of a controlled substance and sentenced to a term of twenty-five years imprisonment. His conviction violated the terms of his federal parole on an earlier conviction. After Mr. Speaks' conviction in the state case, the U.S. Parole Commission filed a detainer warrant against him. The detainer warrant remained unexecuted, however, and Mr. Speaks brought suit in equity asking the district court to issue a mandamus ordering the Parole Commission to reinstate him to his prior parole conditions, run his parole concurrently with his new sentence, and withdraw the federal detainer. Mr. Speaks alleged that the failure of the Parole Commission to hold a hearing within twenty-four months of the commencement of his current term of incarceration violated his right to Due Process. The district court referred the matter to a Magistrate Judge for review and recommendation. The Magistrate Judge concluded that Mr. Speaks had not demonstrated his entitlement to the relief sought, and accordingly recommended that mandamus be denied. The district court adopted the Magistrate Judge's recommendation, and Mr. Speaks appeals.

After reviewing Mr. Speaks' brief on appeal, the order of the district court, the Magistrate Judge's report and recommendation, and the record on appeal, we AFFIRM for substantially the reasons set forth in the Magistrate Judge's Report and Recommendation, as adopted by the district court. See Moody v. Daggett, 429 U.S. 78 (1976); McDonald v. New Mexico Parole Bd., 955 F.2d 631 (10th Cir. 1991), cert. denied, 112 S. Ct. 1968 (1992).