Thomas v. Whalen, 92-6988
| Decision Date | 12 July 1993 |
| Docket Number | No. 92-6988,92-6988 |
| Citation | 998 F.2d 1049 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Calvin THOMAS, Petitioner-Appellant, v. Patrick WHALEN; United States of America, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria; No. CA-91-1685-A, Albert V. Bryan, Jr., Senior District Judge.
Joan Marie Canny, Caplin & Drysdale, Chartered, Washington, DC, for petitioner-appellant.
Dennis Edward Szybala, Asst. U.S. Atty., Alexandria, VA, argued (Richard Cullen, U.S. Atty., Althea Walker, Third-year Law Student, Mary N. Wilburn, Assistant Regional Counsel, Federal Bureau of Prisons, Annapolis Junction, MD, on brief), for respondents-appellees.
E.D.Va.
REVERSED IN PART AND REMANDED.
Before WILKINSON, Circuit Judge, SPROUSE, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
This case is before the court on an appeal by appellant Calvin Thomas of the district court order dismissing his petition for a writ of habeas corpus without prejudice to his right to pursue administrative remedies. Jurisdiction of the appeal lies in this court under 28 U.S.C. §§ 1291 and 2253. Additionally, the petitioner prays in this court for the grant of the writ pursuant to 28 U.S.C. § 2241(a). As explained herein, we reverse in part and remand with instructions.
This case presents a complicated record involving multiple prison sentences and parole terms. For purposes of this opinion, a sketch of the facts will suffice. Calvin Thomas was sentenced in 1974 on a federal drug offense to a five-year prison term to be followed by a three-year special parole term. He was paroled in 1975, after serving approximately one-third of his federal sentence. In June 1977, Thomas was convicted of uttering, a District of Columbia offense. As a result of the D.C. conviction and other technical parole violations, a federal parole violator warrant was executed against Thomas in August 1977. Thereafter, Thomas was sentenced to a 1-3 year prison term on the D.C. conviction, and his parole was revoked. He was paroled on the D.C. sentence and reparoled on the federal sentence in April 1979. In December 1980, his parole was again revoked by the United States Parole Commission. Thomas appealed the Parole Commission's decision administratively on the ground that his federal sentence had expired, and, therefore, the Parole Commission was without authority to set a presumptive reparole date in September 1981. In addition to the foregoing, the record reveals another D.C. sentence in 1981 and numerous subsequent parole revocations.
On November 6, 1990, Thomas filed a habeas petition, pro se, in United States District Court for the District of Columbia. Upon motion by the government, the case was transferred to the Eastern District of Virginia. Following argument on August 7, 1992, the district court ordered that Thomas's petition be dismissed without prejudice on the ground that he had not exhausted his administrative remedies. Thomas appealed.
Appellant's habeas petition essentially concerns the computation of his 1974 federal sentence, his 1977 District of Columbia sentence, and his parole on those sentences. The appellant contends that his 1977 sentence and his parole violator term for violating parole on his 1974 sentence ran concurrently from August 1977 until his parole and reparole on both sentences in April 1979. The appellant charges that the Parole Commission exceeded its legal authority by running parole on his 1977 sentence consecutive to parole on his 1974 sentence, after the two sentences had been running concurrently, and by determining a presumptive parole date without jurisdiction to do so, because his federal sentence had expired. On the other hand, the appellees argue that the 1974 sentence and the 1977 sentence have always run consecutively.
Further complicating this case is the interplay between provisions of the United States Code and provisions of the Code of the District of Columbia. The appellant argues that the Parole Commission was required to determine whether the 1977 sentence and the parole violator term on the 1974 sentence were to run concurrently or consecutively. See 18 U.S.C. § 4210(b)(2) (repealed 1984). On the other hand, the appellees contend that any sentence imposed under the Code of the District of Columbia was to run consecutively with any other sentence, unless expressly provided otherwise by the sentencing court. See D.C.Code § 23-112. In addition, the appellees maintain that the Bureau of Prisons is responsible for aggregating and computing multiple sentences.
Nothing that this court can discern from a careful review of the Joint Appendix and the briefs and argument of counsel discloses in any definitive fashion whether either the Parole Commission or the Bureau of Prisons has made a determination that the 1974 and 1977 sentences should run either concurrently or consecutively. The court below was correct in its view that further administrative review could clarify what is a record intractable of resolution in the form before it and before this court.
This court is hesitant to make decisions on matters of sentence and parole computation where those decisions are committed first to the Parole Commission and second to the Bureau of Prisons, especially where this court cannot discern from the record before it the appropriate factors to be considered in making such a decision. Further development of this record on the principal issue of concurrent or consecutive sentences is imperative to permit the making of an appropriate decision on the issues presented in this case.
Therefore, we will remand the case to the district court for referral to the Bureau of Prisons. The district court shall order the Bureau of Prisons to make a complete report to the district court concerning the history and status of Calvin Thomas, including a determination as to the concurrent or consecutive nature of the 1974 and 1977 sentences. In preparing its report, the Bureau of Prisons shall utilize any information it may bring into the matrix in determining whether the sentences are concurrent or consecutive, including all information available from the Parole Commission concerning the same issue. The Bureau of Prisons shall complete its report within ninety (90) days of the date the matter is referred appropriately to it. While this unusual procedure is not made in response to any action instituted by the appellant for further administrative review, it will accomplish the same result.
In this confused state of the record, where the trumpets of the appellant and the appellees give an uncertain sound, this court is not able to make a judgment on the validity of the action of the court below in reference to the habeas petition, and, ipso facto, cannot make an independent judgment on appellant's request that this court grant the petition for a writ of habeas corpus.
The posture of this case is unusual, in that for essentially the same reasons, the district court and this court have reached the same decision to seek a more definitive statement concerning the basic issue of concurrent or consecutive sentences. Because this court, however, finds it preferable to keep in place the Petition for Writ of Habeas Corpus until the Bureau of Prisons has complied with the matters referred to it on remand, we are constrained technically to reverse the dismissal of the Petition below to accomplish that end.
For the reasons stated, the district court's dismissal of appellant's petition for habeas corpus shall be reversed. In addition, this case shall be remanded to the United States District Court for the Eastern District of Virginia for further proceedings in accordance with the instructions set out above.
The facts relating to Thomas's various paroles are terribly convoluted. By remanding this case to the district court for referral to the Bureau of Prisons, I am afraid that not only has the majority done little to alleviate that confusion, but it has perpetuated the bureaucratic quagmire that has consumed this case. As I discuss below, the Parole Commission (the "Commission") has erroneously made Thomas's federal and District of Columbia sentences consecutive, the Bureau of Prisons is unauthorized to remedy this error, and Thomas has exhausted his remedies before the Commission. Thus, I believe remand to the Bureau of Prisons only compounds the obstacles surrounding this case. I would simply remand to the district court for further review for action consistent with the views expressed in this dissent.
Congress placed the decision of whether a federal parole violator's subsequent sentence runs concurrently or consecutively with the remainder of the parole sentence within the province of the Commission:
in 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 ... 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 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.
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