Kalady v. Booker
| Decision Date | 29 November 1993 |
| Parties | 97 CJ C.A.R. 65 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of |
| Court | U.S. Court of Appeals — Tenth Circuit |
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.
Mr. Kalady is a federal inmate. Having received a state conviction and a federal parole, he brought this habeas corpus action claiming entitlement to credit for certain jail time served in the Indiana State Penitentiary and further claiming the Parole Commission incorrectly classified his offense behavior. The district court denied the petition for writ of habeas corpus and dismissed the action without prejudice. Mr. Kalady, who has paid the appropriate fee, appeals this decision. We reverse in part, affirm in part, and remand.
A chronology of the significant events is helpful in understanding the issues:
In 1982, Mr. Kalady pled guilty in federal court to charges of conspiracy and bank theft. He was sentenced to concurrent terms of five years on the conspiracy count and ten years on the bank theft count. In a companion case, Mr. Kalady pled guilty to the interstate transportation of money, knowing it was stolen. He was sentenced to a ten-year term to run concurrently with his other federal sentences.
In 1983, Mr. Kalady pled guilty to interstate transportation of funds, knowing the funds had been taken from a bank by fraud. He was sentenced to a five-year term to run consecutively to his other federal sentences. Thus, at this point his total federal sentence was fifteen years.
At this time in 1983, Mr. Kalady was serving a thirty-four-year sentence in an Indiana State Prison. Mr. Kalady's 1982 federal sentences were to run concurrently with his state sentence. Consequently, after his federal sentencings, Mr. Kalady was serving both his federal and state sentences in the Indiana facility.
On August 8, 1986, the United States Parole Commission issued a certificate of parole nunc pro tunc 1 to Mr. Kalady, paroling him from his federal term to the Indiana state detainer. The certificate was backdated to March 2, 1986, but Mr. Kalady did not receive and sign the certificate until September 10, 1986. There was no change in Mr. Kalady's physical custody.
On December 23, 1987, Indiana released Mr. Kalady on appeal bond without notifying the federal authorities. Upon his release by the state, Mr. Kalady failed to report to his United States Probation Officer for supervision until July 28, 1988.
In 1988, Mr. Kalady was indicted in federal court in Wyoming for conspiracy, mail fraud, wire fraud, and aiding and abetting. He was arrested and released on an unsecured bond. The district court issued a bench warrant for Mr. Kalady's arrest after he failed to appear for trial.
In 1989, the United States Parole Commission also issued a warrant for Mr. Kalady's arrest charging him with a law violation (the district of Wyoming federal charges), leaving his parole district without permission, and failure to appear for trial. Mr. Kalady was arrested in November 1989.
In 1990 Mr. Kalady received a parole revocation hearing. The information submitted to the panel reflected Mr. Kalady conspired to commit various fraudulent activities in order to participate in the profit from purchases of bankrupt properties and assets with a value of approximately $15 million. The panel recommended Mr. Kalady's offense be rated category six severity as it involved a conspiracy to commit fraud of over one million dollars. The panel also recommended the forfeiture of Mr. Kalady's "street time" from the date of his release from state custody on December 23, 1987, until July 28, 1988, the date Mr. Kalady reported to his Probation Officer. In a 1991 special reconsideration hearing the panel recommended forfeiture of all of the time Mr. Kalady had spent on federal parole, from March 2, 1986 (the date of parole as provided in the certificate of parole nunc pro tunc) to November 8, 1989 (the date the Parole Commission arrest warrant was executed).
Mr. Kalady was subsequently convicted in the District of Wyoming for failure to appear and was sentenced to a forty-month term of imprisonment to run consecutive to his prior federal sentences. The length of this sentence was based, in part, on a finding by the sentencing judge that Mr. Kalady intended to defraud his victims of $34,000.
Mr. Kalady then filed the present habeas petition contending: (1) he is entitled to "jail time credit" from the date of the writing of the initial Parole Certificate (March 2, 1986) until his release from the Indiana State Prison (December 23, 1987), or alternatively, he claims he is entitled to credit from the date on his Certificate of Parole (March 2, 1986) until the date he received and signed his Certificate of Parole (September 10, 1986); and (2) Mr. Kalady claims the Parole Commission was bound by the Wyoming District Court's finding of an intended loss of $34,000 rather than their independent finding of $15 million.
The district court found Mr. Kalady's federal parole began March 2, 1986, the date stated on the certificate of parole nunc pro tunc, and further concluded Mr. Kalady was not entitled to credit for "jail time" he spent in state custody from March 2, 1986, to December 23, 1987. Further, the district court concluded the Parole Commission is entitled to take into account factors which could not be considered by a court of law and has the power to make its own independent finding regarding the extent of a parolee's offenses. The district court thereupon denied the petition and dismissed the action without prejudice.
Mr. Kalady appeals this decision. We find that, although Mr. Kalady is not entitled to credit for time he spent on parole, see 18 U.S.C. § 4210(b)(2) (1994) 2; 28 C.F.R. § 2.52(c)(2); Harris v. Day, 649 F.2d 755, 760 (10th Cir.1981), his parole did not begin until September 10, 1986, not March 2, 1986. Accordingly, he is entitled to 192 days of federal jail time credit. The authorities cited by both the magistrate and district court judges as supporting their contrary holding in fact support our position. First, the plain language of 28 C.F.R. § 2.29(a) (1996) states: "A grant of parole shall not be deemed to be operative until a certificate of...
To continue reading
Request your trial