U.S. ex rel. Pullia v. Luther, 80-1204

• Decision Date: 02 December 1980
• Docket Number: No. 80-1204,80-1204
• Citation: 635 F.2d 612
• Parties: UNITED STATES of America ex rel. Robert PULLIA, Petitioner-Appellant, v. Dennis LUTHER, Warden, Metropolitan Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 612

635 F.2d 612

UNITED STATES of America ex rel. Robert PULLIA, Petitioner-Appellant, v. Dennis LUTHER, Warden, Metropolitan Correctional Center Respondent-Appellee.

No. 80-1204.

United States Court of Appeals Seventh Circuit.

Argued Sept. 17, 1980.

Decided Dec. 2, 1980.

Jeffrey B. Steinback, Chicago, Ill., for petitioner-appellant.

Thomas P. Sullivan, U. S. Atty., Robert T. Grueneberg, Asst. U. S. Atty., Chicago, Ill., for respondent-appellee.

Frederick H. Branding, Asst. U.S. Atty., Civil Division, for U.S.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and CAMPBELL, Senior District Judge. ^*

FAIRCHILD, Chief Judge.

In this appeal, petitioner relies upon the provisions for early termination of parole set forth in 18 U.S.C. § 4211, which were enacted as part of the 1976 Parole Commission and Reorganization Act (hereinafter "Parole Act"). ¹ Specifically, petitioner argues that the lapse of five years after release on parole without a decision by the Commission (after a hearing) as provided in section 4211(c)(1) results in the automatic termination of the Commission's jurisdiction over a parolee, entitling that person to a writ of habeas corpus. We cannot agree. Although the language of the statute is ambiguous, the legislative history makes abundantly clear that termination of parole upon the passage of five years is not automatic and that the remedy for the Commission's failure to comply with the decisionmaking deadlines of the Act is an action to compel the decision, not to secure release. Accordingly, the order of the district court quashing the petition for habeas corpus is affirmed. Because petitioner's interpretation of the relevant section is without merit we find it unnecessary to decide whether the Act applies to situations where, as here, the parolee's term of release commenced prior to the effective date of the Act.

The relevant facts may be simply stated. Petitioner was sentenced to twelve years imprisonment on a federal felony conviction and after serving five-and-one-half years was placed on parole on August 30, 1974. On July 16, 1979, a parole violation warrant was issued as a result of the arrest of petitioner on state criminal charges accusing him of possession of burglary tools, unlawful use of a weapon, and violation of the Illinois gun registration law. Execution of the warrant was delayed until December 18, 1979, for reasons not clear from the record. On January 3, 1980, the district court, at petitioner's request, issued a writ of habeas corpus, returnable January 4, 1980. After a hearing the next day, the district court quashed the writ, stating its reasons in a memorandum opinion. Subsequently, in late January or early February, 1980, the Parole Board, following a hearing, revoked petitioner's parole. Petitioner presently is in custody and is reportedly scheduled for release in late 1980.

The district court rejected petitioner's argument that under 18 U.S.C. § 4211(c)(1) his supervision and the jurisdiction of the Commission automatically terminated on August 30, 1979, five years after he was placed on parole. The court found that the statute was not retroactive and therefore did not apply to him, and that, in any event, the parole violation warrant was issued within the five-year period set by the statute, thus tolling the running of the deadline.

On appeal, Pullia challenges the district court's interpretation of the statute. He claims that the cases relied upon by the district court do not hold the new Act inapplicable to persons placed on parole prior to May 14, 1976, the effective date of the legislation, and that if properly construed the statute is retroactive to such situations. He further argues that the Parole Commission was obligated by 18 U.S.C. § 4211(c)(1) to afford him a parole revocation hearing prior to the expiration of the five-year period beginning with his release on parole. The failure to do so before August 30, 1979, petitioner claims, terminated the jurisdiction of the Commission over him and, consequently, his custody after August 30, 1979, was and continues to be illegal. We cannot agree with petitioner's arguments.

The provisions of the Parole Act upon which Pullia's second argument turns are sections 4210 and 4211. Section 4210(b)(1) provides in part that the jurisdiction of the Parole Commission "shall terminate no later than the date of the expiration of the maximum term or terms for which (the parolee) was sentenced, except that ... such jurisdiction shall terminate at an earlier date to the extent provided under ... section 4211 ...." Section 4211, in turn, states in pertinent part that:

Five years after each parolee's release on parole, the Commission shall terminate supervision over the parolee unless it is determined, after a hearing conducted in accordance with the procedures prescribed in section 4214(a)(2), that such supervision should not be terminated because there is a likelihood that the parolee will engage in conduct violating any criminal law.

In reaching its conclusions that these provisions are not retroactive and do not apply to a period of release on parole, such as Pullia's, which commenced before the new statute's enactment, the district court relied without discussion, on an earlier decision in White v. Warden, U. S. Penitentiary, 566 F.2d 57 (9th Cir. 1977). In White, the petitioner argued that the Parole Act, effective May 14, 1976, entitled him to credit for 776 days spent on parole prior to revocation of his parole on January 4, 1971. Unlike its statutory predecessor, the new section 4210(b) has the effect of permitting time spent on parole prior to a revocation of parole not due to commission of a new crime to be included in computing whether an individual's maximum term has been served. The court refused to attribute retroactive effect to the section because, among other reasons, there was in the Act "no explicit language or necessary implication" that it should be considered retroactive. 566 F.2d at 61. The court found significant the earlier decisions in Daniels v. Farkas, 417 F.Supp. 793 (C.D.Cal.1976) and Weatherington v. Moore, 431 F.Supp. 515 (W.D.Tenn.1977), (later affirmed 577 F.2d 1073 (6th Cir. 1978)). Daniels and Weatherington had both raised similar issues concerning the retroactivity of section 4210(b) and both found that the section was limited to prospective application.

The opinions in Daniels, White, and Weatherington all quote from the legislative history of the Parole Act statements made on the floor of the Congress by the bill's Senate sponsor, Senator Quentin Burdick. The Senator stated:

This legislation is prospective in its application. Decisions to grant, deny, modify, or revoke parole made by the parole agency prior to the effective date of this act are to be carried out pursuant to the law in effect at the time of the decision. Examples of prospective application of the provisions of this legislature include, but are not limited to, the length of time between hearings for a prisoner denied parole section 4208(h) and computation of the time remaining to be served for individuals whose parole has been revoked section 4210(b) and provisions relating to termination of parole supervision Section 4211.

122 Cong.Rec. 4861 (1976) (emphasis added).

These comments evidence a clear legislative intent that section 4211 be limited to prospective application, and might reasonably be interpreted to mean, in a case such as this, that because the "(decision) to grant ... parole (was) made ... prior to the effective date of (the) act" the parole must "be carried out" that is to say terminated in accordance with "the law in effect at the time of the decision (to grant parole)." Such a reading of the statute would appear to square with the dictates of logic. To hold section 4211 retroactive would impose numerous new hearing and decisionmaking deadlines on parole agencies with respect to virtually all persons on parole more than two years at the time of passage of the Act ² without affording such bodies the opportunity to phase in compliance with these new requirements. And in cases where the new deadlines had passed prior to the Act's taking effect, the Parole Commission would be subject to numerous actions by parolees seeking to compel decisions or, as in the present case, seeking automatic release. There is no indication that Congress ever intended such dramatic consequences to flow from passage of the Act.

Yet, notwithstanding the decisions in Daniels, White, and Weatherington, the foregoing interpretation of the legislative history, and the practical consequences that might ensue from holding the section retroactive, the proper resolution to the question of retroactivity is far from certain. Petitioner argues, not implausibly, that White and Weatherington (and presumably Daniels, although he fails to mention it) may be distinguished because in each of those cases there had been a parole revocation hearing prior to the effective date of the Act which recalculated each petitioner's release date. He claims these cases merely uphold decisions by parole agencies made before the Act came into operation, and that because no revocation or modification of parole occurred in the instant case before May 14, 1976, it should fall within the prospective application of the relevant provisions. Admittedly, all three cases are distinguishable at least on the ground that they involved a section other than section 4211, the one Pullia now primarily relies upon. So, too, the statements quoted from the legislative history might be read to support Pullia's argument. One could reasonably contend that the decision with which we are concerned is not a "(decision) to grant parole made ... prior to the effective date of (the) act," but a decision to terminate parole which should have occurred after the new law became operative. When the question is framed this way, the legislative history suggests no...