Manso v. Patrick

• Decision Date: 09 September 1997
• Docket Number: No. 97-0071-Civ.,97-0071-Civ.
• Citation: 983 F.Supp. 1113
• Court: U.S. District Court — Southern District of Florida
• Parties: Hector MANSO, Petitioner, v. William PATRICK, et al., Respondents.

983 F.Supp. 1113

Hector MANSO, Petitioner, v. William PATRICK, et al., Respondents.

No. 97-0071-Civ.

United States District Court, S.D. Florida.

September 9, 1997.

Ruben Oliva, Rojas Oliva Jones & Allen, Miami, FL, Daniel James Stanford, Stanford Law Office, Eunice, LA, for Petitioner.

David Cora, U.S. Atty.'s Office, Fort Lauderdale, FL, for Respondents.

ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION OF JULY 21, 1997

LENARD, District Judge.

THIS CAUSE came before the Court on the Magistrate Judge's Report and Recommendations of July 21, 1997. The Court having considered the Report, and no objections having been filed, it is hereby

ORDERED AND ADJUDGED that the Recommendation of the Magistrate Judge is ADOPTED IN FULL as stated in the Report. Therefore, the Petition for Writ of Habeas Corpus is DENIED. All other pending motions are denied as moot and the Clerk is directed to close this case forthwith.

JOHNSON, United States Magistrate Judge.

REPORT AND RECOMMENDATION

As amended August 18, 1997.

THIS CAUSE is before this Court on Petitioner's Petition for Writ of Habeas Corpus Pursuant to Title 28 U.S.C. 2241 (D.E. No. 1) and the Government's Response to Writ of Habeas Corpus (D.E. No. 7). This matter was referred to the undersigned United States Magistrate Judge by the Honorable Joan A. Lenard, United States District Judge for the Southern District of Florida and is now ripe for review.

I. BACKGROUND

Petitioner, Hector Manso, is currently an inmate at the Federal Detention Center, Miami, Florida. Petitioner has been returned as a special parole violator to continue serving the remainder of a 1-year regular adult sentence followed by a 5-year special parole term imposed by the United States District Court for the Southern District of Mississippi on June 8, 1984. Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the execution of his sentence.

Petitioner argues that it was an unconditional release, which terminated the remainder of the 5-year sentence imposed by the Southern District of Mississippi. Petitioner argues that the Commission was without authority to continue to supervise him following his release on the ground that the statute creating special parole, 21 U.S.C. § 841(c) (1970), authorizes the Commission to impose "a term of imprisonment" but does not authorize a special parole violator to be reparoled. Therefore, Petitioner concludes, when he was released on parole after serving only two months on May 9, 1988, his 5-year special parole term expired.

II. STANDARD OF REVIEW

Title 28 U.S.C. § 2255 sets forth the framework for reviewing a federal prisoner's sentence for the following four reasons:

(1) the sentence was imposed in violation of the Constitution of the United States (2) the court was without jurisdiction to impose such a sentence,

(3) the sentence was in excess of the maximum authorized by law, or

(4) the sentence is otherwise subject to collateral attack.

28 U.S.C. § 2255 (West 1994). Whether the district court has jurisdiction over a prisoner's claim under § 2255 is a question of law subject to plenary review. Fernandez v. United States, 941 F. 2d 1488, 1494 (11th Cir.1991). Sentences imposed within the limits of the applicable statute are insulated from review under 28 U.S.C. § 2255. Id.; Kett v. United States, 722 F.2d 687, 690 (11th Cir.1984); Nelson v. United States, 709 F.2d 39, 40 (11th Cir.1983).

III. LEGAL ANALYSIS

The question for the Court is what was the nature of Petitioner's release on May 9, 1988, after he had spent two months in custody for violating the conditions of his 5-year special parole term.¹ The Commission argues that Petitioner's release was to return to the remainder of the special parole term (a reparole), as the Commission only has the authority to release prisoners on parole and has no sentencing authority or authority to modify the length of the sentence imposed by the court outside of the provisions for early termination of parole at 18 U.S.C. § 4211. The Commission further argues that it is a reasonable interpretation of the special parole statute that the reparole on May 9, 1988, was to the remainder of the 5-year special parole term imposed by the Southern District of Mississippi, and not to a regular parole on the ground that the Commission has no authority to change the nature of the sentence imposed by the sentencing court.

The special parole term statute provides, in its entirety:

A special parole term imposed under this section or § 845 of this title may be revoked if its terms and conditions are violated. In such circumstances, the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or in § 845 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.

21 U.S.C. § 841(c) (1970). The Commission promulgated several regulations based on what it believed was clear from the statute. 28 C.F.R. §§ 2.52(b), 2.57(c) & (d). The Commission concluded that the special parole term imposed by a sentencing court remains intact following revocation of the term, just as a regular prison sentence remains intact if regular parole is revoked. The Commission also concluded that a special parole violator receives no credit toward the satisfaction of the special parole term for the time spent on special parole as specifically required by the statute. Further, the Commission concluded that a special parole violator, like a regular parole violator, is eligible to be reparoled from the violator term. The Commission does not view this reparole decision as the equivalent of the imposition of a determinate sentence.

There are two divergent views that circuit courts have taken recently with regard to what happens when a special parole term is revoked. Petitioner argues that there is a third view. He argues that the Commission may "resentence" him to a term of imprisonment that is less than 5 years and that upon his completion of that new two-month "sentence" that he has satisfied the 5-year term imposed by the sentencing court.

The first view, and until recently, the only view, is that a special parole term is a form of parole² The interpretation of § 841(c) under the first view is that once special parole is revoked, the special parolee will not receive credit for the time spent on special parole, but will receive credit for any time spent in custody on a violator term. This first view also holds that a special parole violator may be reparoled as a special parolee to continue serving the remainder of his special parole term. The District of Columbia Circuit and the Eighth Circuit have accepted this view. See United States Parole Com'n v. Williams, 54 F.3d 820, 822-23 (D.C.Cir.1995)[hereinafter "Williams"]; Billis v. United States, 83 F.3d 209 (8th Cir. 1996).³ This first view was believed to be the view of the Fifth Circuit until Artuso v. Hall, 74 F.3d 68 (5th Cir.1996)(Higginbotham, J.)[hereinafter "Artuso"] was decided. Munguia v. United States Parole Com'n, 871 F.2d 517 (5th Cir.), cert. denied, 493 U.S. 856, 110 S.Ct. 161, 107 L.Ed.2d 119 (1989)[hereinafter "Munguia"] At least one district court in the Eleventh Circuit has adopted this approach in an unpublished decision that followed the Williams approach. Lyndon Crowder v. United States Parole Com'n, slip op. no. 1:95-CV-2373A-JEC (N.D.Ga. Jan. 29, 1996)(Carnes, J).⁴ At least one district court in the Ninth Circuit agrees with this view. Nordling v. Crabtree, 958 F.Supp. 498 (D.Or.1997) (special parole statute is unclear with regard to the nature of a release from a special parole violator term and the Commission's interpretation of the statute was reasonable and consistent with the purpose of the statute and the intent of the sentencing court).

The second view is that once a special parolee has been returned to custody as a special parole violator, he will not receive any credit for the time on special parole and may be reparoled as a regular parolee. Neither the Respondents nor Petitioner argue for this position. Three circuits have adopted this view. Evans v. United States Parole Com'n, 78 F.3d 262, 264 (7th Cir.1996) ("[T]he first revocation turns special parole into regular imprisonment, release from which is normal parole.")[hereinafter "Evans"]; Fowler v. United States Parole Com'n, 94 F.3d 835, 840 (3d Cir.1996) ("[T]he parole that is imposed after special parole is revoked can only be traditional parole.")[hereinafter "Fowler"]; United States v. Robinson, 106 F.3d 610 (4th Cir.1997) ("The Commission can instead require Robinson to serve the full original term of special parole in prison, or it can release him after some incarceration to a term of regular parole.")[hereinafter "Robinson"]. One published district court opinion in the Eleventh Circuit follows this view. United States v. Clemmons, 945 F.Supp. 1519 (M.D.Fla.1996); see also Armstrong v. United States Parole Com'n, 947 F.Supp. 1501 (W.D.Wash.1996); Strong v. United States Parole Com'n, 952 F.Supp. 172 (S.D.N.Y.1997).

Petitioner, however, rejects this second view arguing that the statute does not authorize release on any parole, including regular parole. Petitioner argues that "former Section 841(c) neither vested the district courts or the USPC with authority to impose additional special parole terms nor operated to impose such terms automatically it therefore follows that it does not authorize the imposition of regular parole following revocation of a special parole term and the imposition of imprisonment." (Petition at p. 11). He argues that had Congress intended any kind of supervision...