Henrique v. U.S. Marshal

• Decision Date: 18 November 1981
• Docket Number: No. 80-4236,80-4236
• Citation: 653 F.2d 1317
• Parties: John Riley HENRIQUE, Petitioner-Appellant, v. UNITED STATES MARSHAL and United States Parole Commission, Respondents- Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1317

653 F.2d 1317

John Riley HENRIQUE, Petitioner-Appellant, v. UNITED STATES MARSHAL and United States Parole Commission,

Respondents- Appellees.

No. 80-4236.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1981.

Decided Aug. 17, 1981.

As Amended on Denial of Rehearing and Rehearing En Banc Nov. 18, 1981.

Charles R. Garry, Garry, Dreyfus, McTernan, Brotsky, Stender, Herndon & Walsh, San Francisco, Cal., for petitioner-appellant.

Cedric Chao, Asst. U. S. Atty., San Francisco, Cal., for respondents-appellees.

Appeal from the United States District Court for the Northern District of California.

Before MERRILL and CHOY, Circuit Judges, and HEMPHILL, ^* Senior District Judge.

CHOY, Circuit Judge:

Appellant Henrique appeals from a denial of his petition for a writ of habeas corpus. Henrique, who absconded from parole supervision during the running of his six-year Youth Corrections Act sentence, argues that the jurisdiction of the United States Parole Commission (Commission) expired at the end of the six-year term and that it thereafter had no authority to rearrest him. We reject that argument and affirm the district court's judgment denying the petition.

I. Facts

On April 3, 1972, appellant Henrique was sentenced as a youth offender ¹ for possession of a controlled substance with intent to distribute. He was incarcerated at the Lompoc Federal Correctional Institution until August 31, 1973 when he was released subject to parole supervision for the duration of the six-year maximum sentence authorized by 18 U.S.C. § 5017(c). ²

Henrique performed adequately under parole until August 1975, when he was arrested and charged with contributing to the delinquency of a minor. The delinquency charge was later dropped, but Henrique pleaded guilty to a charge of giving a false name to the arresting officers. On October 24, 1975, Henrique's parole officer, Thomas Mortensen, notified the regional parole board that Henrique had violated several conditions of his parole. A warrant application for Henrique's arrest was filed, listing four bases for revoking his parole: (1) giving a false name to an arresting officer; (2) failing to report to a probation officer; (3) leaving the district without permission; and (4) associating with a person having a criminal record. On December 10, 1975, the regional parole board issued a warrant for Henrique's arrest stamped with an expiration date coinciding with the sentence expiration date of March 31, 1978.

Mortensen informed Henrique on December 18, 1975 that the parole board had issued a warrant for his arrest and that a United States marshal would pick him up at his home the next day to return him to prison. Henrique was not at his home when a marshal and Mortensen attempted to contact him on December 19, 1975. On March 4, 1976, the United States Marshal's office reported to the regional parole board that it had been unable to locate Henrique. His status as an absconder was confirmed by a parole report dated May 14, 1976.

The 1975 arrest warrant was not executed until June 13, 1978, when Henrique was arrested by FBI agents as he arrived at San Francisco Municipal Court for a preliminary hearing on a state controlled-substances charge. The Commission prepared a supplemental warrant application, adding to the pre-existing grounds for parole revocation the charge that Henrique had failed to report a change in residence to his parole officer. The Commissioner did not, however, issue a new warrant. Henrique filed a petition for a writ of habeas corpus on June 16, 1978, arguing, inter alia : (1) that the Commission lacked jurisdiction over him because the original six-year sentence period had expired on the previous March 31st; and (2) that he was in custody pursuant to an invalid warrant which had, by its own terms, expired on the previous March 31st.

Judge Spencer Williams granted the petition on June 26, 1979 on the narrow ground that the warrant had expired and that the ensuing arrest was therefore unlawful. Henrique v. United States Marshal, 476 F.Supp. 618, 626, 629 (N.D.Cal.1979). (Henrique I.) At the same time, he specifically rejected Henrique's other arguments, finding, inter alia, that the running of the maximum sentence under 18 U.S.C. § 5017(c) was tolled during the period of Henrique's abscondence, 476 F.Supp. at 623-25, and that the Commission retained jurisdiction over him so that it could bring parole revocation proceedings pursuant to a valid warrant. Id. at 629. Accordingly, the Commission issued a new parole-violator warrant on September 27, 1979 and Henrique was rearrested. Henrique's second petition for habeas corpus, based upon the alleged untimeliness of the second warrant as well as the arguments previously rejected by Judge Williams, was denied by Judge Peckham without opinion on May 7, 1980. (Henrique II.) It is from that order that Henrique appeals. ³

II. Discussion

A. Tolling Absconders' Sentences

The Youth Corrections Act (YCA) provides that any youth offender committed pursuant to the Act "shall be discharged unconditionally on or before six years from the date of his conviction." ⁴ 18 U.S.C. § 5017(c). Henrique argues that the Commission's jurisdiction over him ceased when the six-year period expired. The Government responds that courts have interpreted the statute so as best to effectuate the goals of the YCA and that those goals are best served by denying a youth offender sentence credit for time spent eluding parole supervision.

A current Commission regulation addresses the issue directly:

Service of the sentence of a committed youth offender ... commences to run from the date of conviction and is interrupted only when such prisoner or parolee (1) is on bail pending appeal; (2) is in escape status; (3) has absconded from parole supervision ; or (4) (has been imprisoned for civil contempt).

28 C.F.R. § 2.10(c) (emphasis added). The regulation was not in effect at the time Henrique absconded, however, and the Government does not argue that it should apply here. ⁵ The crucial issue is whether that part of the regulation dealing with abscondence represented a change from the pre-existing law, as Henrique argues, or merely codified the law, as the Government maintains. The legislative history of the YCA is silent on the issue. ⁶ Henrique argues that statutory construction and Commission practices support his interpretation. The Government argues that policy and analogous precedent should control.

In Ogg v. Klein, 572 F.2d 1379 (9th Cir. 1978), this court considered the closely analogous issue whether a youth offender's escape from custody should toll the running of the six-year sentence. The case interpreted the same statute, and involved many of the same considerations as those involved here. The prisoner, Ogg, had walked away from a youth facility without permission. At the time of the escape, the Commission had not adopted the regulation specifying that escapees' sentences would be interrupted. See 28 C.F.R. § 2.10(c)(2). Like Henrique, Ogg argued that the statute's text implied that discharge in six years was mandatory. Ogg also argued that, according to principles of statutory construction, the adoption of the regulation expressly providing for tolling of escapees' sentences implicitly recognized that sentences were not tolled prior to the regulation's promulgation. This court disagreed, finding that the regulation had merely restated pre-existing law providing for tolling of an escapee's sentence. 572 F.2d at 1383. In so ruling, this court referred approvingly to other courts which had reached similar conclusions, quoting at length from Judge Gerhard Gesell's opinion in Hartwell v. Jackson, 403 F.Supp. 1229 (D.D.C.1975), aff'd mem., 546 F.2d 1042 (D.C.Cir.1976). After noting the general rule that escape tolls the running of an adult sentence, Judge Gesell had reasoned:

Against this background, it is unrealistic to suggest that Congress intended to repeal this general rule by implication. While much can be said for assuming that Congress meant unequivocally what it said, it is unwarranted to stretch an inflexible interpretation beyond the realm of reason. Can the Court realistically assume that Congress believed youthful offenders were being rehabilitated while in escape status and that the beneficent purposes of the Youth Corrections Act were being accomplished while an offender lived without supervision in violation of his commitment? Surely not. Reason, justice and tradition strongly suggest that the Court must recognize the common-sense practicalities of the situation presented and refuse to be compelled into an absurd and unforeseen result by procrustean rules of statutory interpretation. No one can sensibly conclude that Congress, without a word in the legislative history, intended the novel and illogical result that youthful offenders who escaped from custody would still receive credit for serving a sentence they did not serve.

403 F.Supp. at 1230. Quoted in Ogg v. Klein, 572 F.2d at 1382. Other courts have carved exceptions to the six-year maximum sentence where policy has so warranted: escape (Suggs v. Daggett, 522 F.2d 396, 397 (10th Cir. 1975)); offender free on appeal bond (Frye v. Moran, 302 F.Supp. 1291 (W.D.Tex.), aff'd per curiam, 417 F.2d 315 (5th Cir. 1969)); intervening imprisonment for civil contempt (United States v. Marshall, 532 F.2d 410 (5th Cir. 1976)).

Henrique seeks to distinguish the legal status of escape from that of abscondence on the grounds of statutory construction and practice. He notes that the 1976 regulation dealing with escape, 28 C.F.R. § 2.10(b), also tolled the running of the sentence for offenders on bail pending appeal, but did not mention abscondence. Abscondence was added as a ground for interrupting the running of the sentence when the regulation was amended in 1977. Henrique therefore argues that principles of statutory construction suggest that the...