Walberg v. U.S.
| Decision Date | 05 June 1985 |
| Docket Number | D,No. 912,912 |
| Citation | 763 F.2d 143 |
| Parties | Barbara WALBERG, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. ocket 84-2375. |
| Court | U.S. Court of Appeals — Second Circuit |
Barbara Walberg, pro se.
Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y. (Allyne R. Ross, Reena Raggi, Asst. U.S. Attys., Brooklyn, N.Y., on brief), for defendant-appellee.
Before MANSFIELD, KEARSE and PRATT, Circuit Judges.
Petitioner pro se Barbara Walberg appeals from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, denying her petition pursuant to 28 U.S.C. Sec. 2255 (1982) for an order vacating so much of her criminal sentence as imposed a special parole term in excess of her term of imprisonment. Walberg contended that such special parole terms are not authorized by the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Act"), 21 U.S.C. Sec. 801, et seq. (1982), and violate the Due Process Clause of the Constitution. On appeal, she contends that the district court (1) did not consider the materials submitted in support of her petition and (2) erred in its conclusions. We disagree and affirm the order of the district court.
In 1981, after a jury trial before Judge Mishler, Walberg was convicted of conspiracy to import heroin into the United States, in violation of 21 U.S.C. Sec. 963 (1982); of unlawful importation of heroin into the United States, in violation of 21 U.S.C. Secs. 952 and 960; and of unlawful possession of heroin with intent to distribute it, in violation of 21 U.S.C. Sec. 841. On September 17, 1981, she was sentenced to concurrent two-year terms of imprisonment on each count and eight years of special parole on the substantive counts. Her conviction was affirmed by this Court sub nom. United States v. Beltempo, 675 F.2d 472, cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). She apparently began serving her prison terms in 1983.
In May 1984, while serving her prison terms, Walberg filed the present petition for habeas corpus, contending that her special parole term was unlawful insofar as it was to exceed the period of her incarceration. She relied on certain documents submitted in connection with legislative hearings prior to the passage of the Act and on the decision in United States v. Tebha, 578 F.Supp. 1398 (N.D.Cal.1984), appeal docketed, No. 84-1126 (9th Cir. Feb. 9, 1984), declaring the special parole requirement of the Act unconstitutional. The government submitted a memorandum of law in opposition to the petition.
Thereafter, Walberg was released from prison and, relying on the positions set forth in her habeas petition, moved for a preliminary injunction preventing the United States Parole Commission from requiring her to make any reports in connection with her special parole. The government opposed this motion by letter, stating that it would rely on the memorandum submitted in opposition to the habeas petition. The government thereafter sent Judge Mishler another letter to advise the court of the recent decision of another judge in the Eastern District in United States v. Davi, 588 F.Supp. 91 (E.D.N.Y.1984), which rejected the reasoning in Tebha and found the special parole provisions constitutional. Walberg wrote Judge Mishler on August 28, 1984 ("August Letter"), disputing the applicability of Davi to her case.
On appeal, Walberg contends that the district court disregarded all parts of her Sec. 2255 application except the August Letter, and thereby ignored the issues raised by her May 1984 petition. She contends that either the matter should be remanded to the district court for further consideration or this Court should consider the entire record below, and that either course will lead to the conclusions (1) that Congress did not intend that special parole terms exceed a defendant's period of imprisonment and (2) that the imposition of a special parole term in excess of imprisonment is unconstitutional. While the scope of the district court's examination of the materials presented by Walberg is not entirely clear, our own review of those materials leads us to conclude that the court did not err in dismissing the petition.
The extent to which the district court delved into the legislative history presented by Walberg in May 1984 in support of her Sec. 2255 petition is not apparent. The court's brief Memorandum stated that the court was treating her August Letter as a Sec. 2255 application, and it did not mention her original May 1984 petition. On the other hand, the court's decision bore the docket number assigned to that original petition, and it addressed specifically one of Walberg's central contentions, i.e., the Tebha holding that the special parole term was unconstitutional. On the whole, we cannot say that the district court failed to recognize that Walberg's petition consisted of more than just her August Letter and to give the entire matter due consideration.
In any event, our review of the record below persuades us that Walberg's challenges to the interpretation and constitutionality of the special parole provisions lack merit.
The court imposed the special parole terms on Walberg pursuant to 21 U.S.C. Secs. 841(b) and 960(b). Neither the language of those sections, which have recently been amended in respects not material to the present case, see Comprehensive Crime Control Act of 1984 ("1984 Act"), Pub.L. 98-473, Secs. 224-225, 235, 502-504, 98 Stat. 1837, 2030-33, 2068-70, nor the statutory scheme as a whole, nor the legislative history of the Act supports Walberg's contention that special parole term were intended by Congress to be limited to the terms of imprisonment.
As it read in 1981, the pertinent portion of Sec. 841(b), which set forth the penalties for violation of Sec. 841(a), provided first for the imposition of a fine of not more than $25,000 and a prison term of not more than 15 years, and it concluded as follows:
Any sentence imposing a term of imprisonment under this paragraph shall, in the absence of ... a prior [narcotics] conviction, impose a special parole term of at least 3 years in addition to such term of imprisonment and shall, if there was such a prior conviction, impose a special parole term of at least 6 years in addition to such term of imprisonment.
21 U.S.C. Sec. 841(b)(1)(A). The pertinent part of Sec. 960(b), which set forth the penalties for violations of Sec. 960(a), also provided for the imposition of a fine of not more than $25,000 and a prison term of not more than 15 years, and it similarly concluded as follows:
If a sentence under this paragraph provides for imprisonment, the sentence shall include a special parole term of not less than three years in addition to such term of imprisonment.
21 U.S.C. Sec. 960(b)(1).
The language of Secs. 841(b)(1)(A) and 960(b)(1) thus squarely contradicts Walberg's contention, for each stated that the special parole term shall be a minimum of a certain number of "years in addition to [the] term of imprisonment." Accord United States v. Mack, 509 F.2d 615, 616 (9th The legislative history of the Act and the statutory scheme as a whole also belie any intention on the part of Congress to limit the extent of a special parole term to the length of the prison term. First, we note that the report of the House of Representatives Committee on Interstate and Foreign Commerce, in analyzing the sections of the bill that was eventually enacted, H.R. 18583, repeatedly pointed out that special parole terms were to be imposed "in addition to" any sentence of imprisonment. See H.R.Rep. No. 1444, 91st Cong., 2d Sess. 46-47, 78 ("H.R.Rep. 1444"), reprinted in 1970 U.S.Code Cong. & Ad.News 4566, 4614, 4645.
Cir.1974) (per curiam), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); Llerena v. United States, 508 F.2d 78, 82 (5th Cir.1975). Cf. Bifulco v. United States, 447 U.S. 381, 388, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980) (holding that no special parole term was authorized for a conviction for conspiracy in violation of 21 U.S.C. Sec. 846, which mentioned only fine and imprisonment and not special parole, and emphazing the "in addition to" language of 21 U.S.C. Sec. 841(b)(1)(B))
Further, while each part of Secs. 841(b) and 960(b) applicable to Walberg provided that, if a prison term were imposed, there must be a special parole term of at least three years, neither of those sections contained any requirement of a minimum number of years for the prison term. The absence of a provision for a mandatory minimum prison term was an intentional element of Congress's revision of the structure of criminal penalties in 1970. See H.R.Rep. 1444, at 4, reprinted in 1970 U.S.Code Cong. & Ad.News 4570 ( ). Since the statutory provisions provided a minimum special parole term of three years, if Walberg's contention that a special parole term could not exceed the period of imprisonment were accepted, it would mean either that a special parole term could not be imposed with respect to any sentence shorter than three years or that a prison term could not be shorter than three years. Either of these alternatives would be contrary to Congres...
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