Martin v. Luther

• Decision Date: 08 September 1982
• Docket Number: No. 81-1968,81-1968
• Citation: 689 F.2d 109
• Parties: Lee C. MARTIN, Petitioner-Appellant, v. Dennis M. LUTHER, Warden, and United States Parole Commission, Respondents- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 109

689 F.2d 109

Lee C. MARTIN, Petitioner-Appellant, v. Dennis M. LUTHER, Warden, and United States Parole

Commission, Respondents- Appellees.

No. 81-1968.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 20, 1982.

Decided Sept. 8, 1982.

William H. Theis, Chicago, Ill., for petitioner-appellant.

Edward J. Moran, Asst. U. S. Atty., Dan K. Webb, U. S. Atty., Chicago, Ill., for respondents-appellees.

Before SWYGERT, Senior Circuit Judge, ESCHBACH, Circuit Judge, and DOYLE, ^* Senior District Judge.

ESCHBACH, Circuit Judge.

In this appeal from the district court's denial of a petition for a writ of habeas corpus we are presented with the question of whether the Parole Commission and Reorganization Act of 1976, Pub.L.No.94-233, 90 Stat. 219 (codified at 18 U.S.C. §§ 4201-18), permits the United States Parole Commission to revoke the parole of a mandatory releasee after the expiration of his maximum term less 180 days if the Commission had issued a mandatory release violator warrant prior to the expiration of that time period. We note jurisdiction under 28 U.S.C. § 2253, and for the reasons set forth below, we affirm the judgment of the district court, 515 F.Supp. 745, and hold that the Parole Commission has the statutory authority to render a parole revocation decision after the expiration of the mandatory releasee's maximum term less 180 days if the mandatory release violator warrant charging the violation was timely issued.

I

In April 1976 petitioner-appellant was convicted of two federal narcotics distribution charges and was sentenced to concurrent six year terms of imprisonment and a consecutive five year special parole term. Because of accumulated good time credits petitioner earned while incarcerated, he was released from prison on October 12, 1979 as a mandatory releasee pursuant to 18 U.S.C. § 4163 and was deemed as if released on parole until the expiration of his maximum terms less 180 days, viz. June 8, 1981, ¹ pursuant to 18 U.S.C. § 4164. Upon receiving information that petitioner had been arrested on drug charges by Illinois police, respondent-appellee, the United States Parole Commission, issued a mandatory release violator warrant for petitioner on February 6, 1981 in accordance with 18 U.S.C. § 4213(a)(2). The warrant was executed (i.e. petitioner was arrested) on March 11, 1981 and petitioner was incarcerated in the Metropolitan Correctional Center in Chicago, Illinois. Pursuant to 18 U.S.C. § 4214(a)(1)(A), the Commission scheduled preliminary hearings on April 1 and April 3 in order to determine whether there was probable cause to believe that petitioner had violated a condition of his release. Petitioner, represented by counsel, requested and received a thirty-day postponement of the preliminary hearing, which was rescheduled for May 1. ² Petitioner's counsel, however, did not appear at the May 1 hearing and petitioner declined to proceed without counsel being present. Hence, the hearing was once again postponed, apparently sine die. ³ Petitioner was later informed, however, that the preliminary hearing was rescheduled for June 8 and would be consolidated with the revocation hearing. Finally, the consolidated hearing was rescheduled for June 18, 1981.

On Friday, June 5, 1981, ⁴ Martin filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Northern District of Illinois, maintaining that he would be entitled to release from incarceration at 12:01 a. m. on Monday, June 8, 1981. Pointing to the provisions of 18 U.S.C. § 4164 and § 4210(b)(1), Martin argued that the Commission's jurisdiction over him would terminate on June 8, and since the Commission had scheduled his revocation hearing for June 18, he sought a writ ordering his release effective June 8.

The district court ordered respondents to appear before it on June 8 and show cause why the petition should not be granted. Following the non-evidentiary show cause hearing, the district court denied the petition in an Order entered June 11, 1981. 515 F.Supp. 745. The Court rejected petitioner's argument that the Parole Commission's authority to adjudicate alleged parole violations terminates at the expiration of the mandatory releasee's maximum term less 180 days irrespective of when the mandatory release violator warrant is issued. Interpreting the relevant statutory language of 18 U.S.C. § 4210(b)(1)-which provides that the Commission's "jurisdiction" over a mandatory releasee shall terminate at the expiration of his maximum term less 180 days-the court held that

Congress used the term "jurisdiction" in § 4210 in the sense that the parolee's conduct would be subject to Parole Commission supervision until the expiration of his sentence, not that the Parole Commission would be divested of "subject-matter jurisdiction" to adjudicate claimed parole violations occurring prior to the termination of the parolee's sentence because of fortuitous circumstances surrounding the retaking of a parolee.

515 F.Supp. at 748. The court viewed the date of the issuance of the violator warrant, rather than the date of parole revocation, as the legally operative one for purposes of the time limitation of § 4210(b)(1) and therefore denied the petition, since it was undisputed that the warrant had issued within the applicable time period.

Petitioner filed his notice of appeal on June 12, 1981. On June 16 the parole revocation hearing was held and petitioner was found in violation of the terms of his mandatory release. The net effect of this determination was that Martin was imprisoned until September 15, 1981 at which time he was released from confinement and commenced his consecutive special parole term.

II

The first issue raised in this appeal is respondents' contention that the case is moot because petitioner has been released from the confinement which was challenged in his petition. Under the circumstances of this case, however, petitioner's release from confinement does not moot petitioner's appeal. Initially we observe that once habeas jurisdiction attaches in the district court, it is not defeated by the petitioner's release prior to completion of the habeas proceedings so long as the petitioner retains a personal stake in the outcome of the proceedings. Thus, where a conviction is challenged, the issue of the validity of the conviction remains justiciable even after the petitioner is discharged from imprisonment due to the collateral consequences of a criminal conviction. Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (overruling Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960)). Since mootness is properly conceptualized as standing in a time frame, the question is whether petitioner retains a personal stake in the issue raised in his petition-whether the Parole Commission was lawfully empowered to revoke his mandatory release after June 8, 1981. Petitioner contends that his special parole term lawfully commenced on June 8, 1981, whereas the Commission maintains that it commenced on September 15, 1981. The Commission's position is of course tenable only if it had authority to revoke petitioner's release after June 8. It is undisputed that the commencement date of the consecutive special parole term is contingent on the date petitioner lawfully completed his maximum terms of imprisonment on the narcotics convictions. If petitioner's argument concerning the termination date of Parole Commission jurisdiction is meritorious, then his special parole term will end approximately three months earlier than is now scheduled.

One might argue, however, that viewed from this perspective, the petition is premature since petitioner is now lawfully in custody under the special parole term and that his challenge to the lawfulness of his prospective custody during the last three months of his special parole term is an issue not yet ripe for adjudication. See generally Escobedo v. Estelle, 655 F.2d 613, 615 n.5 (5th Cir. 1981) (per curiam ) (discussing the conundrums of the characterizations of mootness, ripeness, and the custody requirement in habeas proceedings). However, petitioner is not required to wait four years in order to challenge the lawfulness of his mandatory release revocation and hence the Commission's concomitant determination that his special parole term commenced on September 15, 1981. Just as a habeas petitioner may attack the validity of a consecutive sentence prior to commencing service of the consecutive sentence, Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (overruling McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934)), petitioner in the instant case may now assert his challenge to the commencement and expiration dates of his special parole term.

III

As a mandatory releasee under 18 U.S.C. § 4163, petitioner was "deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days." Id. § 4164. The mandatory release violator warrant in this case was issued and executed well within this relevant time period, and petitioner of course does not contend otherwise. He argues, however, that the Commission was obligated to hold the parole revocation hearing and make its revocation decision before the expiration of his maximum terms less 180 days. In support of this contention, petitioner points to 18 U.S.C. § 4210(b), which provides in pertinent part:

Except as otherwise provided in this section, the jurisdiction of the Commission over the parolee shall terminate no later than the date of the expiration of the maximum term or terms for which he was sentenced, except that-

(1) such jurisdiction shall terminate at an earlier date to the extent provided under section 4164 (relating to mandatory release) or section 4211 (relating to early termination of parole supervision) ....

There is no question that under this...