Henrique v. United States Marshal

• Decision Date: 26 June 1979
• Docket Number: No. C-78-1328 SW.,C-78-1328 SW.
• Citation: 476 F. Supp. 618
• Court: U.S. District Court — Northern District of California
• Parties: John Riley HENRIQUE, Petitioner, v. UNITED STATES MARSHAL, and United States Parole Commission, Respondents.

476 F. Supp. 618

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

No. C-78-1328 SW.

United States District Court, N. D. California.

June 26, 1979.

COPYRIGHT MATERIAL OMITTED

G. William Hunter, U. S. Atty., Sanford Svetcov, F. Steele Langford, Cedric C. Chao, Asst. U. S. Attys., San Francisco, Cal., for respondents.

Charles R. Garry, Nancy Van Zwalenburg, Garry, Dreyfus, McTernan, Brotsky, Herndon & Pesonen, Inc., San Francisco, Cal., for petitioner.

MEMORANDUM OPINION AND ORDER

SPENCER WILLIAMS, District Judge.

John Riley Henrique brings this petition for a writ of habeas corpus challenging his arrest more than six years after he was first sentenced under the Youth Corrections Act for alleged parole violations. His petition raises three issues: whether his Youth Act sentence was tolled while he absconded from supervision; whether the Parole Commission is estopped from asserting jurisdiction over him; and whether his arrest pursuant to an apparently expired warrant was unlawful. For the reasons set forth more fully below the petition is granted.

Petitioner was sentenced on April 3, 1972 as a youthful offender under 18 U.S.C. § 5010(b) for¹ possession of a controlled substance with intent to distribute. His sentence began running April 3, 1972 when he was admitted to the Federal Correctional Institution at Lompoc, California. He was released from Lompoc on August 31, 1973 to remain under supervision until March 31, 1978 pursuant to the provisions of 18 U.S.C. § 5017(c).²

In August of 1974 petitioner was arrested in Newport Beach, California and charged with contributing to the delinquency of a minor. Although the delinquency charge was later dropped, petitioner did plead guilty to a charge of giving a false name to the arresting police officers. The regional parole board was notified in October and a warrant application for petitioner's arrest was filed. The application listed four bases for possibly revoking 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. The warrant issued on December 10, 1975 by a member of the United States Board of Parole was clearly imprinted with the words "THIS WARRANT CANNOT BE EXECUTED NOR CAN SUBJECT BE DETAINED IN CUSTODY UPON AUTHORITY OF THIS WARRANT AFTER 3-31-78."

At the time the warrant was issued petitioner had not absconded from parole supervision. He had returned to the Eastern District of California after his Newport Beach arrest and reported to his parole officer. In March 1976, however, the United States Marshal's office notified the parole officer that it was unable to locate the petitioner to execute the warrant. His status as an absconder was confirmed by a parole report dated May 14, 1976.

Almost two years later, in April of 1978 petitioner sought to rectify his parole problems. He consulted an attorney who contacted an official of the Parole Commission. His attorney alleges he was verbally informed any warrant which may have been outstanding based upon the alleged parole violations in 1975 had expired on March 31, 1978, and petitioner would not be arrested on the basis of any such warrant. The Parole Commission official also is alleged to have said the only thing that would toll the running of the six year period was an escape from prison—a parole violation would not toll the statutory period. Petitioner's attorney claims to have been given the same information by an officer of the San Diego Probation Office.

Despite these alleged assurances petitioner was arrested by FBI agents at approximately 9:30 a. m. on June 13, 1978 when he was about to appear in San Francisco Municipal Court for a preliminary hearing on a state controlled substances distribution charge. Thereafter, the agents delivered petitioner to the San Francisco City jail and advised the United States Marshal of his apprehension. In turn, the Marshal's office called the United States Parole Commission. At approximately 5:26 p. m. on the same day the Parole Commission dispatched a teletype authorizing the Marshal to assume custody of the petitioner. The teletype read as follows:

THIS CONFIRMS OUR PHONE CONVERSATION OF 6-13-78 RE: SUBJECT'S CUSTODY IN SAN FRANCISCO. THIS TELETYPE AUTHORIZES YOU TO ASSUME CUSTODY OF SUBJECT AS A PAROLE VIOLATOR. EVEN THOUGH SUBJECT IS A YCA CASE WITH AN EXPIRATION DATE OF 3-31-78 HE HAD ABSCONDED FROM SUPERVISION AND THEREFORE OWES MORE TIME. WARRANT AND WARRANT APPLICATION TO FOLLOW. PLEASE CONFIRM THIS TELETYPE WHEN CUSTODY ASSUMED.

Apparently, the Commission decided not to issue a new warrant although a supplemental warrant application was supplied on June 21, 1978. The supplemental application added abscondence from parole supervision to the four other grounds for revoking Mr. Henrique's parole.

Tolling the Sentence

The Youth Corrections Act provides without exception a youth offender "shall be discharged unconditionally on or before six years from the date of his conviction.³" 18 U.S.C. § 5017(c). However, an interpretive regulation enacted under the authority of the 1976 Parole Commission and Reorganization Act has specified certain events which toll the running of a youth offender's sentence. The regulation, as first promulgated in 1976, indicated the sentence of youth offender was interrupted while such offender was on bail pending appeal or in escape status. 41 Fed.Reg. 19327 (1976) codified at 28 C.F.R. § 2.10(b) (1976). As amended in 1977 the regulation now reads:

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) comes within the provisions of paragraph (b) of this section sentenced for civil contempt. 28 C.F.R. § 2.10(c) (1978).

Mr. Henrique asserts his sentence was to run from April 3, 1972 until March 31, 1978, at which time he would be unconditionally discharged in accordance with § 5017(c) despite his two year abscondence from parole supervision. Application of the subsequently enacted regulation to toll the running of his sentence, he reasons, would violate his constitutional right to be free from the imposition of ex post facto laws.

The government does not claim continuing jurisdiction over petitioner based on 28 C.F.R. § 2.10(c). Indeed, such a position would be untenable since the Ninth Circuit has ruled the 1976 Parole Commission and Reorganization Act and regulations promulgated thereunder cannot be applied retroactively. DePeralta v. Garrison, 575 F.2d 749 (9th Cir. 1978); White v. Warden, 566 F.2d 57 (9th Cir. 1977); but see Rifai v. United States Parole Commission, 586 F.2d 695 (9th Cir. 1978).⁴ Instead, the government argues Youth Corrections Act sentences have always been tolled when youth offenders abscond from supervision; in other words, the regulations merely codified existing law.

A similar issue was presented in Ogg v. Klein, 572 F.2d 1379 (9th Cir. 1978), where the Ninth Circuit ruled that a youth offender's escape from custody tolled his sentence regardless of the applicability of any regulation providing as much. In reaching its decision the court placed heavy reliance on Suggs v. Daggett, 522 F.2d 396 (10th Cir. 1975) and Hartwell v. Jackson, 403 F.Supp. 1229 (D.D.C.1975), aff'd mem., 178 U.S.App. D.C. 276, 546 F.2d 1042 (D.C.Cir.1976), two cases antedating the regulation. The Ninth Circuit quoted with approval the following passage from Hartwell:

It is unrealistic to suggest that Congress intended to repeal this general rule that escape tolls a sentence 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 the 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 commonsense 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 a novel and illogical result that youthful offenders who escaped from custody would still receive credit for serving a sentence they did not serve. 572 F.2d at 1382 quoting 403 F.Supp. at 1230-31.

Naturally, the government contends the Ogg rationale mandates a similar conclusion in this case because escapees and absconders equally are denied the "beneficent purposes" of the Act. That the proper focus of the court's inquiry should be the presence or absence of rehabilitative supervision, the government claims, is further supported by pre-regulation cases holding a Youth Act sentence is tolled while the offender is released on bail pending appeal, Frye v. Moran, 302 F.Supp. 1291 (D.C.Tex.1969), or serving a sentence for civil contempt, United States v. Marshall, 532 F.2d 410 (5th Cir. 1976). See also Davis v. Markley, 589 F.2d 784 (4th Cir. 1979). The government reasons it would be an "illogical and absurd result" to enforce the mandatory language of the statute without regard to the clear congressional purpose of rehabilitating youthful offenders by beneficial corrective treatment.

Petitioner, on the other hand, finds reason to distinguish between escapees and absconders based upon the following facts. Escape is a crime whereas abscondence from parole supervision is simply a parole violation. Furthermore, escape generally...