Rizzo v. Armstrong, 89-55389

• Decision Date: 30 August 1990
• Docket Number: No. 89-55389,89-55389
• Citation: 912 F.2d 1111
• Parties: Patrick R. RIZZO, Petitioner-Appellant, v. Sandra B. ARMSTRONG, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1111

912 F.2d 1111

59 USLW 2199

Patrick R. RIZZO, Petitioner-Appellant, v. Sandra B. ARMSTRONG, Respondent-Appellee.

No. 89-55389.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 10, 1990.

Decided Aug. 30, 1990.

Patrick R. Rizzo, Lompoc, Cal., in pro per.

John F. Libby, Asst. U.S. Atty., Los Angeles, Cal., for respondents-appellees.

Appeal from the United States District Court for the Central District of California.

Before REINHARDT and HALL, Circuit Judges, and RE, ^* Chief Judge.

CYNTHIA HOLCOMB HALL, Circuit Judge:

Patrick Rizzo ("Rizzo") petitioned the district court for a writ of habeas corpus on the basis that the United States Parole Commission ("the Commission") improperly decided at two separate parole revocation hearings to forfeit "street time" he had served while out on parole. The Commission's decisions were made in light of the fact that Rizzo was convicted of subsequent crimes each time he was released on parole. The district court refused to grant the writ.

On appeal, Rizzo argues that the special reconsideration hearing held in 1989 to provide him with notice of the possibility of street time forfeiture was defective because 1) the Commission applied a regulation at the special reconsideration hearing mandating forfeiture of street time, effectively making the new hearing pointless; and 2) the regulation applied by the Commission at the reconsideration hearing was not in effect at the time when Rizzo committed his crime of misuse of credit cards while out on parole in 1974, thereby constituting a violation of the ex post facto clause. He also argues that the statutory scheme does not mention the Commission's power to forfeit a parolee's street time and is therefore unconstitutionally vague.

Rizzo additionally contends that the Commission lacked jurisdiction to order forfeiture of his street time in light of the fact that each time his parole was revoked he had already finished serving time for the subsequent offense. Finally, Rizzo insists that he did not receive proper notification prior to his second original parole revocation in 1979 that a possible consequence would be forfeiture of his street time.

I

On December 14, 1967, Rizzo was sentenced to a thirty-five year term of imprisonment by the United States District Court for the Northern District of Indiana for armed bank robbery, jeopardizing life, and escape. He was committed to United States Penitentiary Marion and when granted parole to be effective October 29, 1974, was transferred to the community treatment center in Long Beach, California.

Things appear to have gone well for almost two years after Rizzo was released on parole. By reports dated March 2 and April 26, 1976, however, a U.S. probation officer informed the Commission that Rizzo had violated the conditions of his parole. The officer believed that Rizzo had been using drugs illegally. Moreover, and of particular relevance here, the officer discovered that Rizzo had been convicted of a misdemeanor offense, misuse of a credit card, on February 10, 1976 in Long Beach Municipal Court. ¹ On the advice of the probation officer, the Commission took no action at that time. In a report dated September 3, 1976, however, Rizzo's probation officer notified the Commission that because Rizzo had absconded from supervision, a parole violator warrant should be issued. The Commission issued the warrant on September 29, 1976, and Rizzo was arrested on January 28, 1977.

The Commission held a parole revocation hearing on April 12, 1977. Although Rizzo was notified in advance about the hearing, this notice failed to warn him that one of the possible consequences of the hearing might be the forfeiture of the time Rizzo already had spent out on parole ("street time"). By notice of action dated May 6 1977, the Commission notified Rizzo that it had decided to revoke his parole and that none of his street time would be credited. Rizzo exhausted his administrative appeals, and the decision following a review hearing was affirmed at all levels.

Rizzo was reparoled on November 16, 1978. In response to a probation officer's report that Rizzo had reverted to his prior drug use, the Commission issued a second parole violation warrant on May 16, 1979. After Rizzo had been taken into custody, the parole officer informed the Commission that in addition to other parole violations, Rizzo had been convicted on April 24, 1979 of disturbing the peace in the Orange County Municipal Court, which resulted in an eight-day term of imprisonment. This conviction, among other things, was listed in a supplemental warrant application issued by the Commission on June 11, 1979. It was also listed in a letter dated September 24, 1979, informing Rizzo why the Commission was about to conduct yet another parole revocation hearing. The letter also informed Rizzo that his street time might be forfeited: "If revocation is ordered, the Commission will also determine whether to reparole you or to require service of all or any part of your violator term." The hearing was conducted on October 10, 1979; Rizzo's parole was revoked, and his street time forfeited, on October 31, 1979. Once again, Rizzo exhausted his administrative remedies and the decision was affirmed at all levels.

Rizzo filed a petition for writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241 on July 14, 1988. On November 18, 1988, in light of our decision in Boniface v. Carlson, 856 F.2d 1434 (9th Cir.1988), the Commission voluntarily scheduled a special reconsideration hearing in order to rectify the original hearing conducted on April 12, 1977. Specifically, the notice of action sent to Rizzo this time warned Rizzo that the hearing was being conducted "to consider forfeiture of street time spent on parole from October 29, 1974 to January 28, 1977." At the special reconsideration hearing held January 4, 1989, the Commission reaffirmed its 1977 decision to forfeit Rizzo's street time.

II

We review de novo the district court's denial of Rizzo's habeas corpus petition. Vargas v. United States Parole Comm'n, 865 F.2d 191, 193 (9th Cir.1988) (citation omitted). Our review is limited to whether the Commission acted outside its statutory authority or committed a constitutional violation; we are powerless to review a decision involving the Commission's " 'exercise of judgment among a range of possible choices or options.' " Id. (quoting Wallace v. Christiensen, 802 F.2d 1539, 1552 (9th Cir.1986) (en banc)). Since Rizzo's claims are that the Commission acted outside statutory and constitutional limits, we have jurisdiction to consider them.

The Commission's failure to warn Rizzo in advance of his original 1977 parole revocation hearing of the possibility that his street time would be forfeited constituted a violation of both due process and 18 U.S.C. Sec. 4213(c)(3). See Jessup v. United States Parole Comm'n, 889 F.2d 831, 835 (9th Cir.1989); Boniface v. Carlson, 856 F.2d 1434, 1435 (9th Cir.1988); Raines v. United States Parole Comm'n, 829 F.2d 840, 843 (9th Cir.1987); Vanes v. United States Parole Comm'n, 741 F.2d 1197, 1202 (9th Cir.1984). Consequently, the Commission held a special reconsideration hearing in 1989 in order to rectify this error, a procedure we expressly ordered in both Jessup, 889 F.2d at 835, and Boniface, 856 F.2d at 1436.

Nonetheless, Rizzo objects to the special reconsideration hearing conducted in 1989 on the basis that the Commission used the occasion to apply 28 C.F.R. Sec. 2.52(c)(2), a regulation which mandates the forfeiture of street time when a parolee is convicted of a new crime punishable by a term of imprisonment and the Commission decides to revoke his parole. ² He maintains that this regulation impermissibly expands 18 U.S.C. Sec. 4210(b)(2), which provides as follows:

[I]n the case of a parolee who has been convicted of a Federal, State, or local crime committed subsequent to his release on parole, and such crime is punishable by a term of imprisonment, detention or incarceration in any penal facility, the Commission shall determine, in accordance with the provisions of section 4214(b) or (c), whether all or any part of the unexpired term being served at the time of parole shall run concurrently or consecutively with the sentence imposed for the new offense, but in no case shall such service together with such time as the parolee has previously served in connection with the offense for which he was paroled, be longer than the maximum term for which he was sentenced in connection with such offense.

18 U.S.C. Sec. 4210(b)(2) (emphasis added).

This provision is obviously not a model of clarity, and Rizzo takes advantage of its poor wording by arguing a) that it provides no warning that street time can be forfeited at all and b) that even if it allows the Commission to forfeit street time, it leaves the ultimate decision to the Commission's discretion and does not mandate such forfeiture. Appellee disagrees, arguing that the regulation merely purports to interpret the statute, and pointing to Harris v. Day, 649 F.2d 755 (10th Cir.1981), in support of her position.

To begin with, we reject Rizzo's argument that Sec. 4210(b)(2) does not address street time forfeiture at all. We agree with the Harris court's reading of the phrase "the unexpired term being served at the time of parole" as referring to "the unexpired term remaining to be served by the defendant at the time the defendant was paroled. The statute does not say that the measure of time remaining on the defendant's original sentence is the time remaining to be served on that sentence at the time of defendant's arrest for the second crime." Id. at 759-60; accord United States v. Newton, 698 F.2d 770, 772 (5th Cir.1983). This reading is reasonable; consequently, we defer to the Commission's interpretation that the statute allows street time to be forfeited so that it runs concurrently or consecutively with the sentence imposed for...