United States ex rel. Stanbridge v. Quinlan

• Decision Date: 26 October 1984
• Docket Number: No. 83 Civ. 6469(MEL).,83 Civ. 6469(MEL).
• Parties: UNITED STATES of America, ex rel. William STANBRIDGE, Reg. # XXXXX-XXX, Petitioner, v. Michael QUINLAN, Warden, Otisville Federal Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of New York

595 F. Supp. 1145

UNITED STATES of America, ex rel. William STANBRIDGE, Reg. # XXXXX-XXX, Petitioner, v. Michael QUINLAN, Warden, Otisville Federal Correctional Institution, Respondent.

No. 83 Civ. 6469(MEL).

United States District Court, S.D. New York.

October 26, 1984.

Donald H. Zuckerman, Pound Ridge, N.Y., for petitioner.

Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, for respondent; Denny Chin, Asst. U.S. Atty., New York City, of counsel.

LASKER, District Judge.

Petitioner William Stanbridge moves for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1982) on the grounds that his parole was wrongfully revoked and that his sentence has been erroneously calculated, resulting in continuing imprisonment beyond his proper release date. The petition is denied.

I.

In 1974, while on state parole from sentences imposed in 1962, Stanbridge was convicted of conspiracy to distribute narcotics and sentenced to seven years in federal custody. He was paroled to a state detainer on September 29, 1976 and spent 82 days in state custody for violation of his state parole due to the 1974 conviction. He was released from state custody in December, 1976 and remained on both federal and state parole until his August, 1979 arrest described below.

On July 8, 1979, Stanbridge was arrested on a federal narcotics charge. While on bail, he was arrested by the state authorities on August 29, 1979 for criminal possession of a deadly weapon. Stanbridge was ultimately acquitted of this charge but the weapons arrest nevertheless caused him to remain in state custody from his arrest in August of 1979 until April 15, 1983 for violation of state parole on the 1962 sentence.¹

On July 2, 1980, Stanbridge pled guilty to conspiracy to distribute narcotics in violation of 21 U.S.C. § 841 (1982) in connection with the July 1979 arrest and he was sentenced to eighteen months to be served consecutively to the state sentence.

On November 29, 1979, the United States Parole Commission ("Commission") issued a parole violator warrant citing the August, 1979 weapons arrest as grounds for revocation of parole from the 1974 sentence. The warrant was supplemented in October of 1980 to add the narcotics conviction as grounds for revocation.

A federal parole revocation hearing was held on November 16, 1982 at which Stanbridge was represented by retained counsel and several witnesses appeared on his behalf. The parole hearing officer recommended revocation based solely upon the 1980 narcotics conviction.

On March 2, 1983, the Commission issued a Notice of Action to Stanbridge which stated that his parole was revoked and required that he serve the remainder of his 1974 sentence (1506 days) after his eighteen month 1980 sentence was completed. No credit was given for time spent on parole prior to the 1979 arrest, nor was credit given for time spent in state custody on state charges while Stanbridge was on federal parole.

Stanbridge's counsel wrote to both the hearing officer and the United States Parole Commissioner immediately after the parole revocation hearing to assert that the conduct of the hearing violated due process. In a letter dated March 4, 1983, the Commission answered some of the attorney's arguments and invited him to submit any additional mitigating information which he felt had not been presented at the hearing. Petitioner's attorney responded by letter of March 31, 1983, in which he declined to submit additional information, repeated his due process objections, and requested that the letter be deemed a Notice of Appeal of the revocation.

On April 15, 1983, Stanbridge was released from state custody to federal custody to serve his remaining sentences.

II.

Petitioner argues: (1) that he has been improperly denied credit (a) on his 1974 sentence for the time spent in state custody and (b) for street time; (2) that the supplement to the parole violator warrant was improperly issued thereby invalidating the revocation of parole; and (3) that the parole revocation hearing was invalid for failure to follow minimum standards of due process.

Although Stanbridge failed to exhaust the administrative appeal procedures available under 28 C.F.R. § 2.25-.27 (1984), the government conceded at oral argument that the doctrine of exhaustion is not applicable in a case such as this in which the petitioner's claims involve questions of statutory interpretation of first impression in this circuit.²

(1) Credit for time spent in state custody and on parole prior to the 1979 arrest

Stanbridge relies upon the terms of 18 U.S.C. § 3568 (1982)³ to argue that he is entitled to credit on his 1974 federal sentence for the approximately 44 months (August, 1979 to April, 1983) spent in state custody for violation of state parole on the weapons arrest.

This reliance is misplaced; § 3568 provides that credit shall be given for "any days spent in custody in connection with the offense or acts for which sentence is imposed." 18 U.S.C. § 3568 (1982). This provision does not provide credit for time spent in state custody for a separate and distinct offense unrelated to the offense or acts for which the federal sentence is imposed. Sherbicki v. United States, 366 F.Supp. 1290, 1293 (S.D.N.Y.1973) (time spent in state custody on assault charges not credited against federal narcotics sentence).

Stanbridge's federal sentences were imposed for narcotics convictions in 1974 and in 1980; his time spent in state custody related to his 1962 state sentences and the 1979 arms arrest as a violation of parole. He is therefore not entitled to federal credit for the time spent in state custody.

Stanbridge also argues that 18 U.S.C. § 4210(b)(2) (1982)⁴ entitles him to credit for the approximately 34 months from his 1976 release from state to federal custody until his July, 1979 narcotics arrest. He bases this contention on two propositions: (1) that § 4210(b)(2), which authorizes revocation of parole for conviction of an offense committed while on parole, does not authorize the forfeiture of his street time (from his December, 1976 release on state and federal parole until his July, 1979 narcotics arrest); and (2) the § 4210(b)(2) forfeiture provision does not apply to time spent in state custody when the release on federal parole is pursuant to state detainer and the parolee goes immediately into state custody (in this case, the 82 days from his September, 1976 federal release on parole to a state detainer until his December, 1976 release from state custody on parole).

Stanbridge argues that both the plain meaning of the subsection and its legislative history do not authorize the forfeiture of street time. He states that time spent on parole is "time ... the parolee has previously served in connection with the offense" within the meaning of the subsection. He also contends that the omission of express street time forfeiture provisions in the 1976 Act, which were contained in the 1948 Act before its amendment,⁵ reflects Congress' intent that street time is not subject to forfeiture under the Act as amended.

Notwithstanding petitioner's argument, every court confronted with this question has concluded that § 4210(b)(2) does authorize forfeiture of street time upon conviction of a new offense while on parole, despite the lack of any express street time forfeiture provision in the amended act itself. See United States v. Newton, 698 F.2d 770, 772 (5th Cir.1983); Harris v. Day, 649 F.2d 755, 758-60 (10th Cir.1981); Frick v. Quinlan, 631 F.2d 37, 39 (5th Cir.1980); Lambert v. Warden, 591 F.2d 4, 8 (5th Cir.1979); United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 586-88 (7th Cir.1980), cert. denied, 449 U.S. 1084, 101 S.Ct. 870, 66 L.Ed.2d 808 (1981); Wilkerson v. United States Board of Parole, 606 F.2d 750, 751 (7th Cir.1979); see, also, Booze v. Thomas, 500 F.Supp. 327, 329 (S.D.N.Y. 1980) (dictum).

Moreover, § 4210(b)(2) also states that "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 ...." 18 U.S.C. § 4210(b)(2) (1982) (emphasis added). This language is evidence of an intent that the unexpired term begin to run upon the release on parole, and not upon the commission of the offense for which parole is revoked. See United States v. Newton, supra, 698 F.2d at 772 (parole violator forfeits his street time upon conviction of a new offense subsequent to his release on parole).

Moreover, the legislative history of § 4210(b)(2) does not support petitioner's argument. The House Conference Report, referring to this subsection, states:

"This subsection also provides that an individual whose parole has been revoked upon conviction of any new criminal offense that is punishable by a term of detention, incarceration or imprisonment in any penal institution shall receive no credit for service of his sentence from the day he is released on parole until he either returns to federal custody following completion of any sentence or incarceration or upon the Commission determining that the sentence run concurrently with any new sentence that may have been imposed, pursuant to Section 4214(b) or (c) of this Act."

Joint Explanatory Statement of the Committee of Conference, H.Conf.Rep. No. 838, 94th Cong., 2d Sess. 32 (1976), reprinted in 1976 U.S.Code Cong. & Ad.News 335, 351, 364. See also United States v. Newton, supra, 698 F.2d at 772. The Commission has issued regulations in accordance with this interpretation.⁶

We therefore conclude that § 4210(b)(2) does authorize the forfeiture of street time upon conviction of an offense while on parole.

Stanbridge next contends that § 4210(b)(2), even if it does authorize the forfeiture of street time, does not allow forfeiture of time spent in state custody when the parolee is released...