Edwards v. Dewalt

• Citation: 681 F.3d 780
• Parties: George H. EDWARDS, Jr., Petitioner–Appellant, v. Stephen DEWALT, Warden, Respondent–Appellee.
• Decision Date: 01 June 2012
• Court: U.S. Court of Appeals — Sixth Circuit

681 F.3d 780

George H. EDWARDS, Jr., Petitioner–Appellant,

v.Stephen DEWALT, Warden, Respondent–Appellee.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 1, 2011.

Decided and Filed: June 1, 2012.

ARGUED: Craig I. Chosiad, Jones Day, Washington, D.C., for Appellant. Claire McCusker Murray, United States Department of Justice, Washington, D.C., for Appellee. ON BRIEF: Craig I. Chosiad, Jones Day, Washington, D.C., for Appellant. Claire McCusker Murray, United States Department of Justice, Washington, D.C., Charles P. Wisdom, Jr., David E. Middleton, Assistant United States Attorneys, Lexington, Kentucky, for Appellee. George H. Edwards, Jr., Belleville, Illinois, pro se.

Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

This habeas appeal ostensibly presents a difficult question of statutory interpretation involving the lingering effects of long-since superseded federal special parole statutes. However, we do not need to reach the question because habeas relief must be denied on the basis of a parole regulation under the regular parole scheme. Petitioner contends that the parole regulation in question illegally circumvents a statutorily required exercise of case-by-case decision-making by the Parole Commission. Because the regulation is a valid across-the-board exercise of the Commission's discretion, however, the district court properly denied habeas relief.

In 1985, petitioner George Edwards was convicted of distributing cocaine and sentenced to 15 years' imprisonment to be followed by a mandatory ten-year term of “special parole.” In 2000, Edwards was released on special parole. This began a cycle during which Edwards repeatedly violated the terms of his special parole, was incarcerated, and was re-released on special parole. By statute, each time Edwards violated the terms of his special parole, he forfeited credit for any time he spent in noncustodial supervision. As a result, Edwards's term of special parole is not set to expire until 2017. Edwards filed a habeas petition pursuant to the provisions of 28 U.S.C. § 2241, challenging the re-imposition of special parole, and the district court denied relief. This decision was proper because, regardless of whether the Parole Commission has authority to reimpose a previously revoked term of special parole, Edwards still would have forfeited his time in non-custodial supervision under current parole regulations.

Because Edwards's 1985 conviction was a drug offense, the then-applicable federal parole statutes mandated that Edwards's period of incarceration was to be followed by a ten-year term of “special parole.” As this court has explained:

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.

Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir.2001). Should a parolee violate the terms of his special parole, he forfeits credit for time spent in non-custodial supervision, colloquially referred to as “street time.” Id. Once special parole is revoked, a parolee is usually imprisoned. Upon a parolee's release from prison, he must serve the entire original term of the special parole—here ten years—reduced only by the additional time spent in prison.

On February 8, 2000, Edwards was released from prison and began serving his ten-year term of special parole. Seven months later, Edwards had already violated the terms of his release by shoplifting, failing a drug test, and failing to provide personal and business records to his parole officer. His special parole was revoked on July 26, 2001, and Edwards returned to prison. The time Edwards spent in non-custodial supervision prior to the revocation did not count toward the fulfillment of his sentence. Edwards was released from prison in December 2001, and re-paroled with 3371 days remaining on his parole term—ten years, less the time he had been in custody since March 2001 (the date when he was taken into custody for the parole violations). Edwards was once again placed on special parole. In 2007, Edwards was convicted of wire fraud, and was sentenced to a year and a day in prison. Just before his scheduled release from prison, the Parole Commission executed a special-parole violator warrant to keep Edwards in federal custody. The Commission revoked Edwards's special parole, causing him to forfeit the “street time” he had accrued between December 2001 and December 2007. Edwards was released from prison on November 21, 2009, and was re-paroled to yet another ten-year term of special parole, less the time he spent in prison. The United States Parole Commission now calculates Edwards's release-from-parole date to be November 2017.

Edwards filed a petition for a writ of habeas corpus in federal district court pursuant to the provisions of 28 U.S.C. § 2241. Edwards asserted various procedural challenges to the revocation of his parole as well as a claim that, once revoked, “special parole cannot be reimposed—only a regular parole can be imposed.” The district court denied Edwards's petition in its entirety, ruling that he suffered no deprivation of his rights under the federal constitution or any federal statutes. The district court found that the Parole Commission did not have authority to re-impose a term of special parole, citing Dolfi v. Pontesso, 156 F.3d 696, 698–99 (6th Cir.1998). However, the court reasoned that this mistake was harmless because Edwards would have forfeited his “street time” under regular parole as well. Edwards timely appealed what he perceives to be the continual re-imposition of the ten-year special-parole restrictions and also submits that his salient factor score—used to determine the date on which he should be released from prison—was miscalculated.

As an initial matter, 28 U.S.C. § 2241 is the proper vehicle for challenging the conditions of Edwards's parole. Although 28 U.S.C. § 2255 provides “the primary avenue for relief for federal prisoners protesting the legality of their sentence, ... § 2241 is appropriate for claims challenging the execution or manner in which the sentence is served.” United States v. Peterman, 249 F.3d 458, 461 (6th Cir.2001). Because Edwards is challenging the manner in which his parole is to be served, his claims were properly brought pursuant to the provisions of § 2241. “This court reviews de novo the district court's dismissal of a habeas petition filed pursuant to 28 U.S.C. § 2241.” Evans v. Zych, 644 F.3d 447, 449 (6th Cir.2011).

Because under current parole law Edwards's street time is forfeited anyway—as explained below—we need not decide the interesting and difficult issue of whether our decision in Dolfi—holding that a revoked special-parole term could not be reimposed—remains valid law after the Supreme Court's decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). Even when lower courts and litigants would like to know the answer, it is better not to decide legal issues, no matter how important, when the resolution of the question has no effect on the parties on appeal. See Pierre N. Leval, Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L.Rev. 1249, 1255–63 (2006).

In Dolfi, we held that the Parole Commission did not have authority under 21 U.S.C. § 841(c) to impose a new term of special parole after revoking the original term.¹156 F.3d at 698–700. We reasoned that the statute's use of the term “revoke” indicated that the special-parole term disappears and is replaced by a term of imprisonment that can be cut short only under traditional parole, under which the offender gets credit for street time. Id. at 698–99. The court relied on its previous conclusion regarding an “analogous point with respect to a successive term of supervised release under 18 U.S.C. § 3583(e)(3), the statute which replaced § 841(c) and contains almost identical language.” ²Id. at 699 (citing United States v. Truss, 4 F.3d 437, 441 (6th Cir.1993)). In Truss, the court determined that § 3583(e)(3) contemplated only a complete revocation of supervised release, which prevented the imposition of successive new terms of supervised release. 4 F.3d at 441. The Dolfi court stated, “Given the similarity of § 841(c) and § 3583(e)(3), we agree ... that any attempt to distinguish the revocation of special parole from the revocation of supervised release is a distinction without a difference.” 156 F.3d at 699 (internal quotations omitted).

The Supreme Court's decision in Johnson v. United States arguably compels a different conclusion. In Johnson, the Supreme Court considered the meaning of the supervised release statute, § 3583(e)(3), and rejected Truss's interpretation of the term “revoke.” Johnson, 529 U.S. at 704, 120 S.Ct. 1795. The Court recognized that if it “were to concentrate exclusively on the verb ‘revoke,’ [it] would not detect any suggestion that the reincarceration might be followed by another term of supervised release” because revoke conventionally means “to annul by recalling or taking back.” Id. However, the court chose to embrace an “unconventional” definition of “revoke” because it found a distinction between the word “terminate” used in § 3583(e)(1) and the word “revoke” used in § 3583(e)(3).³Id. On the other hand, Johnson may be understood as being limited to the supervised release context. Our unpublished opinion in Gillmore v. United States Parole Commission, 124 Fed.Appx. 941, 942 (6th Cir.2005), so reasoned.

Regardless of Dolfi's continuing vitality, Edwards suffered no harm from the reimposition of special parole because he would have forfeited his “street time” even if he had been serving regular parole. Under 18 U.S.C. § 4210(b)(2), the Parole Commission is empowered to...