Edwards v. Cross, 14–2205.

• Citation: 801 F.3d 869
• Decision Date: 16 September 2015
• Docket Number: No. 14–2205.,14–2205.
• Parties: George H. EDWARDS, Jr., Petitioner–Appellant, v. James N. CROSS, Warden, & U.S. Parole Comm'n, Respondents–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

801 F.3d 869

George H. EDWARDS, Jr., Petitioner–Appellant

v.James N. CROSS, Warden, & U.S. Parole Comm'n, Respondents–Appellees.

No. 14–2205.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 8, 2015.

Decided Sept. 16, 2015.

Jacob Moshe Roth, Attorney, Donald B. Ayer, Attorney, Jones Day, Washington, DC, for Petitioner–Appellant.

Gerald M. Burke, Attorney, Office of the United States Attorney, Civil Division, Fairview Heights, IL, for Respondents–Appellees.

Before BAUER, MANION, and ROVNER, Circuit Judges.

Opinion

ROVNER, Circuit Judge.

George H. Edwards, Jr. appeals from the district court's denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2241. He is currently under the supervision of the United States Parole Commission serving a term of special parole that stems from a narcotics conviction in 1985. Although Edwards completed his term of imprisonment for that conviction in 2000, the Parole Commission has responded to his regrettable history of parole violations with repeated reimprisonment and the reimposition of special parole, which remains in force to this day. Edwards maintains that the Parole Commission lacks the authority to reimpose special parole and seeks an order compelling the Commission to convert his current term of special parole to ordinary parole. Edwards' appeal hinges on the definition of the word “revoke” in the special parole statute, see 21 U.S.C. § 841(c) (1982 ed.), which was repealed over twenty years ago in 1984, see Act of Oct. 12, 1984, Pub.L. No. 98–473, § 224(a)(6). Although we concluded in Evans v. U.S. Parole Commission, 78 F.3d 262 (1996), that the Parole Commission could not reimpose special parole after a term of reimprisonment, that conclusion has since been called into question by the Supreme Court's subsequent decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), interpreting the word “revoke” in 18 U.S.C. § 3583(e) (1988 & Supp. II 1990), a supervised release statute with some similarities to 21 U.S.C. § 841(c). The district court concluded that our interpretation of the word “revoke” in Evans was undermined by the Court's holding in Johnson and denied Edwards' petition. We conclude that the differences between former § 841(c) and § 3583(e) predominate over the admitted similarities; thus, we hold that our decision in Evans interpreting § 841(c) continues to be good law. Accordingly, we vacate and remand the decision of the district court.

I.

In order to understand the issue presented by this case and why Edwards remains under the authority of the Parole Commission over thirty years after his 1985 narcotics conviction, we must recount both the history of Edwards' repeated parole violations and the enactment and repeal of several statutes pertaining to post-imprisonment supervision. Edwards' extended encounter with imprisonment and parole began in 1985 when he was convicted of cocaine distribution and sentenced to fifteen years imprisonment to be followed by ten years of “special parole.” See § 841(c) (1982 ed.).¹

Special parole was created in 1970 as a mandatory additional penalty for drug offenses. The Sentencing Reform Act of 1984 eliminated parole (both special and regular), replaced it with supervised release, and repealed 21 U.S.C. § 841. See United States v. Sandidge, 784 F.3d 1055, 1067 (7th Cir.2015) (“We note that the system of supervised release followed the elimination of parole in the federal system.”). However, the Parole Commission continues to exercise jurisdiction over the dwindling number of individuals, like Johnson, who committed a federal offense before November 1, 1987, when the Sentencing Reform Act took effect.² E.g., United States v. Wells, 177 F.3d 603, 607 n. 3 (7th Cir.1999). “Three things are ‘special’ about special parole: first, 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, when special parole is revoked, its full length becomes a term of imprisonment.” Evans, 78 F.3d at 263. Thus, if an individual is reimprisoned for violating special parole, when he is released he must serve the entire original term of the special parole reduced only by the additional time spent in prison—he receives no credit for the “street time” spent on special parole before the violation.

This mechanism is illustrated by Edwards' long history of violating his special parole. In February 2000, Edwards began his term of special parole, which was due to expire in February 2010. In March 2001, he was taken into custody for violating the terms of his parole (by shoplifting, failing a drug test, and failing to provide personal and business records to his parole officer). His special parole was revoked, and he returned to prison on July 26, 2001. He was released from prison in December 2001. At this point, under § 841(c), his special parole reverted to a full ten year term less the time he spent in custody (March to December 2001); no credit was given for the time he had already spent on special parole. Thus, his new parole term was set to expire in March 2011.

But in 2007, Edwards pleaded guilty to one count of wire fraud. He was sentenced to one year and a day in prison to be followed by four years of supervised release. He completed the prison term for wire fraud in December 2007 but remained in prison because the Parole Commission revoked his parole. Reasoning that he had been on special parole when he pleaded guilty in 2007, the Parole Commission added six more years to his sentence to account for the forfeited street time between his December 2001 release from prison (following the first parole revocation) and his 2007 conviction. Edwards' parole term was then set to expire in February 2017.

Edwards challenged the reimposition of special parole following his wire fraud conviction. The Sixth Circuit rejected Edwards' challenge, noting that because he had been convicted of a crime, under current parole law Edwards would have forfeited his street time even if he had been serving regular parole. See Edwards v. Dewalt, 681 F.3d 780 (6th Cir.2012) ; 28 C.F.R. § 2.52(c)(2) (providing that an ordinary parolee convicted of a new offense while on parole will not receive credit on service of his sentence for time spent on supervision). It thus concluded that it need not decide the “interesting and difficult issue” of whether its own holding that a revoked special parole term could not be reimposed survived the Supreme Court's decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), interpreting the supervised release statute, 18 U.S.C. § 3583(e) to allow reimposition of supervised release following its revocation. See Dewalt, 681 F.3d at 784–85 (citing Dolfi v. Pontesso, 156 F.3d 696, 698–99 (6th Cir.1998) which had held that the Parole Commission lacked authority under 21 U.S.C. § 841(c) to impose a new term of special parole after revoking the original term).

Edwards' current situation forces us to confront this “interesting and difficult issue” directly. He was released on parole in 2010 but then sent back to prison in 2013 for again violating the terms of his supervised release (stemming from the wire fraud conviction). Shortly thereafter, the Parole Commission issued a parole-violator warrant (for the same conduct that led to his supervised release revocation) as a detainer against him pending the completion of his sentence for violating the supervised release. See Matamoros v. Grams, 706 F.3d 783, 788 (7th Cir.2013) (“The purpose of [a] detainer is to make sure the U.S. Marshal is notified when [a parolee] is discharged from his ... prison sentence so he can be immediately taken into federal custody for a revocation of parole hearing.”).

At that time, Edwards filed a petition for a writ of mandamus under 28 U.S.C. § 1361 seeking an order compelling the Parole Commission to conduct a parole termination hearing and terminate his parole violation status and suspend his supervision in the interim. He also filed a petition for a writ of habeas corpus under § 2241, requesting an order compelling warden James Cross to convert his special parole to a regular term of imprisonment and hold a hearing on his parole violation or, in the alternative, terminate his special parole and release him from all conditions of parole. The district court denied Edwards' mandamus petition after concluding that Edwards had not shown that the Parole Commission owed him a duty which it had failed to perform.

It also denied Edwards' habeas petition. The court first rejected Edwards' arguments attacking the Parole Commission's failure to hold a revocation hearing within 90 days of his violation and its failure to hold a dispositional review within 180 days of placing the detainer against him. See 18 U.S.C. § 4214(b)(1) (repealed 1984). Finally, on the issue of the reimposition of special parole, the district court declined to address Edwards' argument that the Commission could not reimpose special parole following his third violation because the parole had not yet been revoked. However, the court concluded that such a reimposition of special parole would be unproblematic because the Supreme Court's decision in Johnson indirectly abrogated this court's conclusion in Evans that release from imprisonment following revocation of special parole must be to regular, not special parole.

II.

On appeal, Edwards focuses solely on his claim that under Evans, the Parole Commission lacks the authority to reimpose special, as opposed to regular, parole once it is revoked. We note at the outset that § 2241 is a proper vehicle for relief because special parole satisfies the “custody” requirement of that statute and Edwards is in essence claiming that he is being kept on special parole in “violation of the Constitution or laws or treaties of...