U.S. ex rel. Del Genio v. U.S. Bureau of Prisons, 79-2202
| Decision Date | 22 October 1980 |
| Docket Number | No. 79-2202,79-2202 |
| Citation | 644 F.2d 585 |
| Parties | UNITED STATES of America ex rel. Fred DEL GENIO, Petitioner-Appellant, v. UNITED STATES BUREAU OF PRISONS, United States Parole Commission, and Robert Elsea, Warden, Metropolitan Correctional Center, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Julius Lucius Echeles, Chicago, Ill., for petitioner-appellant.
Thomas P. Sullivan, U. S. Atty., James P. White, Asst. U. S. Atty., Chicago, Ill., for respondents-appellees.
Before FAIRCHILD, Chief Judge, NICHOLS, Judge, * and CUDAHY, Circuit Judge.
This is an appeal from a denial of a petition for writ of habeas corpus. We agree with the district court that the petitioner's term of imprisonment has not been fully served and thus affirm the judgment.
Petitioner Del Genio has had an extended career in the federal prison system. 1 It began in November, 1960, when he was sentenced to a fifteen year term for interstate transportation of stolen securities and conspiracy by the District Court for the Western District of Texas. He was paroled from that sentence in October, 1966. In October, 1968, he was arrested in Chicago for violation of parole and returned to custody. In June, 1969, he was convicted of possession of plates for making counterfeit money (the same offense for which his parole had been revoked) and sentenced to a ten year term of imprisonment, to run concurrently with his parole violator term. He was paroled again in November, 1974, but in January, 1978, while still on parole, was convicted of interstate transportation of stolen property. He received only a five year term of probation for this conviction but his parole was again revoked and he returned to custody in March, 1978. Shortly thereafter, he was assigned a mandatory release date of March 28, 1981. In April, 1979 Del Genio filed his petition for writ of habeas corpus, alleging that his mandatory release date was calculated erroneously and that he had fully served his term of imprisonment. The district court judge admitted him to bond pending adjudication of the writ and, although the writ was denied, continued the bond pending this appeal.
The petitioner alleges that there were three errors in the computation of his release date. The first was the failure to give him any credit for "street time," i. e., time he had been released on parole, when computing the time left to serve from his 1969 conviction. The second was the refusal to credit towards his ten year term for possession of counterfeit plates the seven months and thirty days he had already spent in custody on the "concurrent" parole violator term. The third was the failure to credit him with "good time" earned during the first imprisonment on the counterfeiting offense.
The question whether "street time" should be credited towards the sentence to be served after a grant of parole has been revoked is one of statutory interpretation. The petitioner's position is that by force of 18 U.S.C. 4210(b) the Parole Commission's jurisdiction over him ended at the expiration of the maximum term for which he was sentenced, as if it had not been interrupted by parole. In this case, since the last term of imprisonment he received was a ten year sentence which he received and began serving in June, 1969, he argues that the Commission's jurisdiction over him as a parole violator ended, at the latest, in June, 1979. The government, on the other hand, argues that because Del Genio was convicted in 1979 of an offense punishable by imprisonment his street time was forfeited and he may be required to serve the entire unexpired portion of his sentence without regard to when he would have been released but for the parole violation.
The question is made somewhat more difficult because although the argument is framed as whether or not "street time" or "time spent on parole" is "credited" or "forfeited," none of those terms is used in the statute. The relevant portions of § 4210 read as follows:
(b) 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
(2) 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, 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.
This statute replaced an earlier one which explicitly provided that the unexpired prison term of a parole violator began to run from the date he returned to custody and that "the time the prisoner was on parole shall not diminish the time he was sentenced to serve." 62 Stat. 854 (1948) (repealed 1976). As it now reads, § 4210 seems to provide exactly the opposite, i. e., that the jurisdiction of the Parole Commission ends when the original term of imprisonment would have expired. Del Genio relies on this as the basis for his argument that he is now being held illegally under the 1969 sentence.
The real question is the meaning of subparagraph (b)(2). From the overall structure of paragraph (b) it is apparent that (b)(2) is intended to create an exception to rule on which Del Genio relies. The exception explicitly applies to "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." Del Genio's 1974 conviction for interstate transportation of stolen property would seem to bring his case squarely within the exception. But the statute then states that in such a case "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." This could be interpreted to mean that (b)(2) applies only to parole violators who are in fact sentenced to imprisonment for their subsequent crimes.
The Commission has resolved the ambiguity inherent in the section by promulgation of a regulation which revokes street time whenever a parolee is convicted of a crime punishable by imprisonment. It was pursuant to this regulation that Del Genio's release date was calculated. The regulation,...
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