Urbina v. Thoms

Citation270 F.3d 292
Decision Date09 August 2001
Docket NumberNo. 00-5464,00-5464
Parties(6th Cir. 2001) Benjamin Urbina, Petitioner-Appellant, v. Maryellen Thoms, Warden, Respondent-Appellee. Submitted:
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 00-00003

Benjamin Urbina (briefed), Federal Medical Center Anteaus Unit, Lexington, Kentucky.

Jane E. Graham, Thomas Lee Gentry, Mason Mooer Keddinger, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky.

Before: KEITH, KENNEDY, and BATCHELDER, Circuit Judges.

OPINION

KENNEDY, Circuit Judge.

Petitioner Benjamin Urbina filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, claiming that the United States Parole Commission (USPC) violated his Fifth Amendment due process rights by exceeding its jurisdiction to change his regular parole status to special parole status while he, a deported alien, was out of the country. The district court dismissed petitioner's writ, sua sponte, without prejudice. Petitioner now appeals that dismissal. For the reasons stated below, we affirm the judgment of the district court dismissing petitioner's claims.

I.

On December 10, 1985, petitioner was sentenced to a period of seven years in prison and five years probation to run consecutively for knowingly, willfully, and unlawfully conspiring to distribute heroin, possessing heroin, and distributing heroin, in violation of 21 U.S.C. §§ 846 and 841(a)(1). As a condition of his probation, petitioner, an alien, was ordered to leave the country and not to return.

On November 7, 1986, petitioner was sentenced on an additional count to serve three and a half years to run concurrently with his December 10, 1985 sentence. Petitioner was also sentenced to a ten-year term of special parole to run consecutively to his imprisonment. Petitioner was ordered that if he was deported, he was not to re-enter the United States, but that if he did re-enter, he was to notify his probation officer within three days.

Petitioner was released on April 22, 1988 to the Immigration and Naturalization Service (INS), allegedly on regular parole. On May 7, 1988 the INS deported petitioner to Mexico while he was still on regular parole status. According to a USPC warrant, petitioner's special parole term began on December 17, 1989, after he was deported and while he was in Mexico.

On November 5, 1997, petitioner was arrested but released for drug related offenses in Chicago, after he had illegally re-entered the United States. On March 30, 1998, the USPC issued an arrest warrant for petitioner. On June 1, petitioner was arrested. On April 28, 1999, the USPC held petitioner's parole revocation hearing and determined that petitioner had violated the terms of his special parole. On May 19, 1999, the USPC issued a notice of action in which it: (1) revoked petitioner's special parole; (2) declared that no time spent on special parole could be credited toward completion of petitioner's sentence; (3) converted petitioner's special parole term to regular parole with eligibility for parole to be determined pursuant to 18 U.S.C. § 4208(a); (4) determined that petitioner's mandatory release was to full term less 180 days under 18 U.S.C. § 4164 and subject to 28 C.F.R.§ 2.52; and (5) directed petitioner to continue to a presumptive parole after the service of 65 months on the "new" sentence until November 2, 2003, at which time he would be released subject to an INS detainer, or, if the detainer was not exercised, then he would be released to an approved plan.

Petitioner alleges, pro se, that the USPC exceeded its jurisdiction when it converted his regular parole to special parole and that any parole violation punishment should have been governed by the terms of regular parole, not special parole. Petitioner filed an appeal to the National Appeals Board, which was denied, but petitioner admits that he did not argue in that appeal the specific complaint alleged here. Petitioner then filed his § 2241 habeas petition in the district court. The district court held that it could not conclude that the USPC intended petitioner's regular parole status to be tolled while he was out of the country, that the USPC had jurisdiction over petitioner's special parole status while petitioner was out of the country, and that petitioner had failed to exhaust his administrative remedies.1 The district court dismissed the petition without prejudice.

II.

As the district court correctly noted, because petitioner has filed a pro se petition and appeal, his pleadings are held to a less stringent standard than those prepared by an attorney. Cruz v. Beto, 405 U.S. 319 (1972); Haines v. Kerner, 404 U.S. 519 (1972). In ruling on a motion to dismiss, the allegations in a pro se petition must be taken as true and construed in favor of the petitioner. Malone v. Colyer, 710 F.2d 258 (6th Cir. 1983). This court reviews de novo the legal conclusions of the district court in a habeas corpus decision. United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).

According to the USPC, petitioner's special parole term began on December 17, 1989, after he was deported and while he was in Mexico. Petitioner claims that he was released on regular parole and that his period of regular parole was tolled during the time that he was out of the country. Thus, petitioner argues that when he illegally re-entered the United States and was arrested in November 1987, he was still serving his period of regular parole. In contrast, the USPC claims that petitioner completed his period of regular parole, that his special parole period began in December 1989, and that, therefore, petitioner was in the process of serving the ten-year special parole term at the time of his arrest in Chicago.

Special parole was created in 1970 as an additional penalty for all drug offenses and was mandatory in all such cases until the Sentencing Reform Act replaced it with "supervised release." Special parole is governed by 21 U.S.C. § 841, which Congress repealed in 1984, but which still applies to drug crimes committed before November 1, 1987. Dolfi v. Pontesso, 156 F.3d 696, 697 (6th Cir. 1998) (citations omitted). Special parole differs from regular parole in three respects:

[F]irst, special parole follows the term of imprisonment, while regular parole entails release before the end of the term; second, special parole was imposed, and its length selected, by the district judge rather than by the Parole Commission; third, if the conditions of special parole are violated, the parolee is returned to prison to serve the entire special parole term, and receives no credit for his time spent in non-custodial supervision, or "street time."

Evans v. United States Parole Comm'n, 78 F.3d 262, 263 (7th Cir. 1996). Because the USPC concluded that petitioner had violated his special parole, it ordered petitioner to an additional term of imprisonment equal to ten years, the entire length of his special parole term, even though he had already completed almost eight years of that special parole term. Petitioner thus would prefer to have been sentenced for a violation of regular parole.

As a preliminary matter, the district court concluded that petitioner had not conclusively established the fact that he was originally released from prison on regular parole status. (J.A. #3.) Because petitioner is pro se, however, the district court assumed, for purposes of argument, that petitioner was released on regular parole status. Despite apparent conflicts in petitioner's pro se pleadings, it seems clear that petitioner was in fact released on regular parole. Petitioner was sentenced to a period of seven years imprisonment in 1985 but was released in 1988--as outlined above, special parole follows the term of imprisonment, while regular parole entails release before the end of the term. Evans, 78 F.3d at 263. Thus, petitioner was released on regular parole.

Petitioner claims that when he was deported, while on regular parole status, his period of regular parole was tolled until he re-entered the United States. Thus, he claims that he was on regular parole status when he illegally re-entered the country sometime prior to his ...

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