Ivy v. Harmon
| Decision Date | 14 May 2018 |
| Docket Number | CASE NO. 18-3007-JWL |
| Parties | HENRY L. IVY, JR., Petitioner, v. STEVEN HARMON, Jailer, Respondent. |
| Court | U.S. District Court — District of Kansas |
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner, currently in parole revocation proceedings, challenges the legality of the United States Parole Commission ("USPC") warrant authorizing his detention. For the reasons set forth below, the Court denies the petition for lack of merit.
On May 12, 1988, Petitioner was convicted in the United States District Court for the Western District of Missouri of the following crimes committed prior to November 1, 1987: conspiracy to distribute cocaine and cocaine base; possession with intent to distribute cocaine base; and use of firearms during the commission of a felony. (Doc. 20-1, at 2, 4.) On July 29, 1988, Petitioner was sentenced to "20 (twenty) years on Count 1, 20 years on Count 2, 20 years on Count 3, 20 years on Count 4, 40 (forty) years on Count 5, mandatory 5 (five) years on Count 6, 40 (forty) years on Count 7." Id. at 2. All counts were to run concurrent with one another, except for Count 6, which must be served consecutively to the other sentences. Id. The sentence also included five years of special supervised release. Id.
On January 23, 1991, the sentencing judge ordered that Petitioner be resentenced. Id. at 4. The court found that:
defendant's post-confinement supervision should be by "special parole term" rather than the court imposed "supervised release." Supervised release became effective as of November 1, 1987, United States v. Padilla, 869 F.2d at 381, but, prior to November 1, 1987 post-confinement supervision was by "special parole term." Defendant committed the crimes for which he was convicted and sentenced prior to November 1, 1987, thus, his post-confinement supervision should be amended to "special parole term."
Id. at 4-5. The court scheduled Petitioner's resentencing for February 28, 1991. On February 19, 1991, prior to Petitioner's resentencing, the Supreme Court of the United States issued its decision in Gozlon-Peretz v. United States, 498 U.S. 395 (1991). The Supreme Court held that "for offenses committed in the interim period between October 27, 1986, and November 1, 1987, supervised release applies for all drug offenses in the categories specified by ADAA § 1002." Id. at 409. Petitioner was resentenced on March 7,1991. The order states that Petitioner was "to serve five (5) years special supervised release program on Counts 2, 3, and 4, to run concurrent terms of each count." (Doc. 20-1, at 6.)
The USPC issued a Certificate of Mandatory Release for Petitioner on October 9, 2013. Id. at 11. The Certificate included categories for "Mandatory Release," "Special Parole," and "Court Designated Parole." Id. The category for "Mandatory Release" is checked and provides that Petitioner:
is entitled to 6695 days Statutory and/or Extra Good Time deductions from maximum term sentence imposed as provided by law, and is hereby released from this institution under said sentence on 07-24-2014. Said person was released by the undersigned according to Title 18 U.S.C. Section 4163. Upon release the above named person is to remain under the jurisdiction of the United States Parole Commission, as if on parole as provided in Title 18, U.S.C. Section 4164, as amended under the conditions set forth on the reverse side of this certificate, and issubject to such conditions until expiration of the maximum term, or terms of sentence, less 180 days on 09-15-2032 with a total of 6808 days remaining to be served.
Id. Petitioner was released from prison on July 24, 2014, via mandatory release. Id. at 8, 10. The Sentence Monitoring Computation Data as of July 24, 2014, has a line for "special parole term," which is left blank. Id. at 8.
On September 5, 2014, a USPC Case Analyst requested that the Commission issue a warrant for Petitioner's arrest for violating the terms of his mandatory release. Id. at 14-15. The Warrant Application alleges that Petitioner was arrested on September 3, 2014, for possession of heroin, possession with intent to distribute heroin, and possession of marijuana. Id. The USPC signed and issued the warrant that same day. Id. at 16. On May 23, 2017, the United States Marshals executed the warrant and arrested Petitioner in Nashville, Tennessee. Id. at 17. The Case Analyst supplemented the arrest warrant on September 15 and September 18, 2017, to add charges for leaving the district without permission, failure to report change in residence, and failure to report to supervising officer as directed. Id. at 18-19. On October 25, 2017, the Case Analyst corrected the September 18, 2017 warrant supplement to add language stating that Petitioner had not had contact with his supervising officer since an in-person visit on August 18, 2014, and his whereabouts were unknown until his arrest in May, 2017. Id. at 20.
On August 4, 2017, the Probation Office for the Western District of Kentucky attempted to conduct Petitioner's preliminary interview to allow the Commission to make a probable cause determination. Id. at 21. Because Petitioner elected to be represented by counsel and counsel had not been assigned, the preliminary interview was postponed until August 10, 2017. Id. After the preliminary interview, the interviewing officer recommended that the USPC make afinding of probable cause. Id. at 22. On November 16, 2017, the USPC informed Petitioner through counsel that they had made a probable cause finding. Id. at 23-25.
Petitioner filed this § 2241 petition in the United States District Court for the Western District of Kentucky, and the matter was transferred to this Court on January 8, 2018, due to Petitioner's transfer to Leavenworth, Kansas.
Prior to November 1, 1987, the terms of federal sentences were governed by The Parole Commission and Reorganization Act of 1976 ("PCRA"), which "empowered the Parole Commission to evaluate prisoners' behavior and to award them early release on the basis of positive institutional adjustment." Bledsoe v. United States, 384 F.3d 1232, 1233 (10th Cir. 2004) (citations omitted). Congress, dissatisfied with this system, passed the Sentencing Reform Act of 1984 ("SRA"), which became effective on November 1, 1987, when it repealed and replaced the PCRA. Id. "Under the SRA, parole was to be abolished, the Parole Commission was to be phased out, and prisoners were to serve uniform sentences under sentencing guidelines." Id.
The SRA eliminated the "special parole"1 drug offenders had been required to serve prior to the SRA, and replaced it with a new system of supervised release. Gozlon-Peretz v. United States, 498 U.S. 395, 397 (1991). "To ensure the orderly implementation of this change," Congress delayed the effective date of the SRA's supervised release provisions until November 1, 1987. Id. However, a year before that effective date, Congress enacted the Anti-Drug Abuse Act of 1986 ("ADAA"), "which mandates terms of supervised release for certain drug offenses." Id.
The Supreme Court in Gozlon-Peretz, addressed the issue of whether the ADAA's supervised release requirements apply to offenses committed during the interim period after the enactment of the ADAA but before the effective date of the SRA. Id. The Supreme Court held that § 1002 of the ADAA, which sets minimum and maximum sentences and mandates terms of supervised release for certain drug offenses, took effect on its date of enactment—October 27, 1986. Id. at 404-07. The Supreme Court also held that "for offenses committed in the interim period between October 27, 1986, and November 1, 1987, supervised release applies for all drug offenses in the categories specified by ADAA § 1002." Id. at 409.
Petitioner, whose offenses were likewise committed in this interim or gap period, relies on Gozlon-Peretz in arguing that the statutes governing his drug offense sentences substituted supervised release for parole as the method of postconviction supervision. Petitioner argues that he should be subject to supervised release rather than special parole, and that the USPC has erroneously asserted jurisdiction over a non-existent special parole term.
In arguing that he is being erroneously subjected to special parole, Petitioner points to the fact that the USPC warrant application and warrant erroneously claim that he was subject to a "5 years Special Parole Term." Despite this language, it is clear that Petitioner was released from prison on July 24, 2014, via mandatory release. The October 9, 2013 "Certificate of Mandatory Release" shows that Petitioner's release is pursuant to 18 U.S.C. §§ 4163 and 4164, and the Sentence Monitoring Computation Data as of July 24, 2014 shows mandatory release while leaving blank the line designated for special parole. (Doc. 20-1, at 8-11.)
The USPC's jurisdiction thus arises from Petitioner's mandatory release under 18 U.S.C. § 4163 (), and the mandate of § 4164 that he be supervised "as if on parole" until the expiration of his sentence less 180 days. See DeCuir v. U.S. Parole Comm'n, 800 F.2d 1021, 1022-23 (10th Cir. 1986) ().
In Garcia-Cosme, the court addressed a similar issue and determined that the USPC properly asserted its authority under 18 U.S.C. §§ 4163, 4164, and not under special parole. Garcia-Cosme v. U.S. Parole Comm'n, Civil No. 06-5698 (RBK), 2007 WL 2990673 (D.N.J. Oct. 5, 2007) (...
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