Russie v. U.S. Dept. of Justice

• Decision Date: 23 June 1983
• Docket Number: No. 82-3587,82-3587
• Citation: 708 F.2d 1445
• Parties: John William RUSSIE, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, United States Parole Commission, United States Marshal, and King County Jail, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1445

708 F.2d 1445

John William RUSSIE, Petitioner-Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, United States Parole Commission, United States Marshal, and King County Jail, Respondents-Appellees.

No. 82-3587.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 6, 1983.

Decided June 23, 1983.

Alan Corner, Eileen Farley, Bainbridge Island, Wash., for petitioner-appellant.

Robert M. Taylor, Asst. U.S. Atty., Seattle, Wash., for respondents-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before HUG, POOLE and NORRIS, Circuit Judges.

POOLE, Circuit Judge:

John William Russie appeals the district court's order denying his petition for a writ of habeas corpus. Russie argues that under 18 U.S.C. Sec. 4164 the United States Parole Commission did not have the authority to issue a federal parole violation warrant against him because he had fewer than 180 days remaining until the expiration of his sentence for violating federal narcotics statutes. The district court held that 18 U.S.C. Sec. 4164, which removes the Commission's jurisdiction over a released prisoner during the final 180 days of the prisoner's maximum term, did not apply to Russie because he was serving a special parole term required by 21 U.S.C. Sec. 841(b) when the parole violation warrant was issued. We conclude that the district court was correct in denying Russie's habeas petition because the 180-day limitation of 18 U.S.C. Sec. 4164 is not applicable to released prisoners serving special parole terms.

FACTS

In October 1977, Russie was convicted of distributing cocaine in violation of 21 U.S.C. Sec. 841. He was sentenced to one year in prison and a mandatory special parole term of three years. After earning 60 days of "good time," Russie was released from prison on July 28, 1978 pursuant to 18 U.S.C. Sec. 4163. He received a Certificate of Special Parole indicating that his special parole term would begin July 30, 1978 and end July 29, 1981.

On May 13, 1981--77 days before his special parole term was due to expire--Russie was charged in state court with distribution of cocaine. On the same day a federal parole violation warrant was issued, but was held in abeyance pending resolution of the state charge.

Russie reported to his federal parole officer on July 29, 1981, the day his special parole was scheduled to expire. Russie's parole officer gave him a notice of discharge indicating Russie had completed his special parole and was released from federal supervision and authority. This discharge was issued in error; apparently the parole officer mistakenly believed the May 13 parole violation warrant had been dismissed. This error was not discovered until November 1981 and Russie was not notified that he was still under the authority of the Parole Commission until December 11, 1981.

In the meantime, Russie pleaded guilty to the state narcotics charge on August 12, 1981. On December 1, 1981, he was sentenced to ten years in state prison. All of the prison time was suspended on the condition Russie serve one year in the King County (Washington) Jail to be followed by six years of probation, that he make restitution and pay a fine, and that he receive mental health counseling. If eligible, Russie was permitted to serve his year in the county jail on work-release, which would allow him to keep a job as a painter.

Russie was informed on December 11 that the notice of discharge he received on July 29 was a mistake and the Parole Commission Russie was released from the King County Jail in September 1982 and was transferred to federal custody in the McNeil Island Penitentiary. Russie received a parole revocation hearing on December 7, 1982, at which two years of his special parole term were revoked. Russie was thus required to serve an additional two years in federal prison, although he was given credit for the time he had served in the King County Jail.

could still take him back into federal custody. Russie participated in the King County Jail work-release program from December 19 to December 31, 1981. On December 31, a federal detainer on Russie was filed with the jail and, since the detainer made no provision for work-release, Russie was removed from the program and kept in confinement.

On January 21, 1982, Russie filed this petition for a writ of habeas corpus. The United States magistrate to whom Russie's petition was referred recommended it be denied. The magistrate concluded that the 180-day limitation of 18 U.S.C. Sec. 4164 applied to general parole and not special parole and that the Parole Commission retained jurisdiction over Russie despite the mistakenly-issued notice of discharge. The district court approved and adopted the magistrate's report and recommendation on August 13, 1982. Russie, who is now in a federal institution in California, appeals.

APPLICABILITY OF 18 U.S.C. Sec. 4164 TO SPECIAL PAROLE

Russie argues that the Parole Commission had no authority to issue the May 13, 1981 parole violation warrant against him because 18 U.S.C. Sec. 4164 removes the Commission's jurisdiction over a released prisoner during the final 180 days of the prisoner's maximum term. Title 18 U.S.C. Sec. 4164 provides that after a prisoner who has served his term--less good-time deductions--is released from prison he is to be treated as if he were on parole until 180 days before the expiration of the maximum term to which he was sentenced. ¹ Any warrant for parole violation for a prisoner released under 18 U.S.C. Sec. 4164 may be issued only if the Commission acts prior to 180 days before the expiration of the prisoner's maximum term. 28 C.F.R. Sec. 2.44(c) (1982).

Russie had completed his one-year prison term, minus a good-time allowance, and was within 77 days of the completion of his maximum sentence when the warrant against him was issued on May 13. However, he was serving a statutorily mandated three-year special parole term when the parole violation warrant was issued. ²

We conclude that the provisions of 18 U.S.C. Sec. 4164, including the 180-day limitation, are inapplicable to special parole terms. Special parole differs from traditional parole, a distinction recognized by this court in Bunker v. Wise, 550 F.2d 1155, 1158 (9th Cir.1977). Special parole is "in addition to, and not in lieu of," any other parole available to a prisoner. 21 U.S.C. Sec. 841(c). This additional period of supervision is designed to begin "upon completion of any period on parole or mandatory release supervision from the regular sentence; or if the prisoner is released without supervision ... upon such release." 28 C.F.R. Sec. 2.57(a) (1982); Bunker, 550 F.2d at 1158-59. Unlike traditional parole, if special parole is revoked the term is added to the parolee's original prison sentence and he may be required to serve all or part of this additional prison term without credit for the time he spent on special parole. 21 U.S.C. Sec. 841(c).

When Russie completed his prison term, he was released to a mandatory special parole term and was not "deemed as if The Fifth Circuit reached a similar conclusion in Llerena v. United States, 508 F.2d 78, 82 (5th Cir.1975), holding that the 180-day limitation of 18 U.S.C. Sec. 4164 applies to parole "generally applicable in federal criminal cases" rather than to special parole terms. In Llerena, a prisoner who had been sentenced to an 18-month prison term for narcotics violations argued that the district court could not later correct his sentence to include a mandatory special...