George Edwards, Jr. v. Stephen Dewalt

Filing

OPINION and JUDGMENT filed: The district court's denial of Edwards's petition is AFFIRMED. Decision for publication pursuant to local rule 206. Martha Craig Daughtrey, R. Guy Cole , Jr., and John M. Rogers (AUTHORING), Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0166p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
No. 09-5533
v.
>
,
STEPHEN DEWALT, Warden,
Respondent-Appellee. N
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 08-00346—Jennifer B. Coffman, Chief District Judge.

GEORGE H. EDWARDS, JR.,
Petitioner-Appellant,

Argued: December 1, 2011
Decided and Filed: June 1, 2012
Before: DAUGHTREY, COLE, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Craig I. Chosiad, JONES DAY, Washington, D.C., for Appellant. Claire
McCusker Murray, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Craig I. Chosiad, JONES DAY, Washington, D.C., for
Appellant. Claire McCusker Murray, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., David E. Middleton, ASSISTANT
UNITED STATES ATTORNEYS, Lexington, Kentucky for Appellee. George H.
Edwards, Jr., Belleville, Illinois, pro se.
_________________
OPINION
_________________
ROGERS, Circuit Judge. This habeas appeal ostensibly presents a difficult
question of statutory interpretation involving the lingering effects of long-since
superseded federal special parole statutes. However, we do not need to reach the
question because habeas relief must be denied on the basis of a parole regulation under

1

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the regular parole scheme. Petitioner contends that the parole regulation in question
illegally circumvents a statutorily required exercise of case-by-case decision-making by
the Parole Commission. Because the regulation is a valid across-the-board exercise of
the Commission’s discretion, however, the district court properly denied habeas relief.
In 1985, petitioner George Edwards was convicted of distributing cocaine and
sentenced to 15 years’ imprisonment to be followed by a mandatory ten-year term of
“special parole.” In 2000, Edwards was released on special parole. This began a cycle
during which Edwards repeatedly violated the terms of his special parole, was
incarcerated, and was re-released on special parole. By statute, each time Edwards
violated the terms of his special parole, he forfeited credit for any time he spent in noncustodial supervision. As a result, Edwards’s term of special parole is not set to expire
until 2017. Edwards filed a habeas petition pursuant to the provisions of 28 U.S.C.
§ 2241, challenging the re-imposition of special parole, and the district court denied
relief. This decision was proper because, regardless of whether the Parole Commission
has authority to reimpose a previously revoked term of special parole, Edwards still
would have forfeited his time in non-custodial supervision under current parole
regulations.
Because Edwards’s 1985 conviction was a drug offense, the then-applicable
federal parole statutes mandated that Edwards’s period of incarceration was to be
followed by a ten-year term of “special parole.” As this court has explained:
Special parole was created in 1970 as an additional penalty for all
drug offenses and was mandatory in all such cases until the Sentencing
Reform Act replaced it with “supervised release.” Special parole is
governed by 21 U.S.C. § 841, which Congress repealed in 1984, but
which still applies to drug crimes committed before November 1, 1987.
Urbina v. Thoms, 270 F.3d 292, 295 (6th Cir. 2001). Should a parolee violate the terms
of his special parole, he forfeits credit for time spent in non-custodial supervision,
colloquially referred to as “street time.” Id. Once special parole is revoked, a parolee
is usually imprisoned. Upon a parolee’s release from prison, he must serve the entire

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original term of the special parole—here ten years—reduced only by the additional time
spent in prison.
On February 8, 2000, Edwards was released from prison and began serving his
ten-year term of special parole. Seven months later, Edwards had already violated the
terms of his release by shoplifting, failing a drug test, and failing to provide personal and
business records to his parole officer. His special parole was revoked on July 26, 2001,
and Edwards returned to prison. The time Edwards spent in non-custodial supervision
prior to the revocation did not count toward the fulfillment of his sentence. Edwards was
released from prison in December 2001, and re-paroled with 3371 days remaining on his
parole term—ten years, less the time he had been in custody since March 2001 (the date
when he was taken into custody for the parole violations). Edwards was once again
placed on special parole. In 2007, Edwards was convicted of wire fraud, and was
sentenced to a year and a day in prison. Just before his scheduled release from prison,
the Parole Commission executed a special-parole violator warrant to keep Edwards in
federal custody. The Commission revoked Edwards’s special parole, causing him to
forfeit the “street time” he had accrued between December 2001 and December 2007.
Edwards was released from prison on November 21, 2009, and was re-paroled to yet
another ten-year term of special parole, less the time he spent in prison. The United
States Parole Commission now calculates Edwards’s release-from-parole date to be
November 2017.
Edwards filed a petition for a writ of habeas corpus in federal district court
pursuant to the provisions of 28 U.S.C. § 2241. Edwards asserted various procedural
challenges to the revocation of his parole as well as a claim that, once revoked, “special
parole cannot be reimposed—only a regular parole can be imposed.” The district court
denied Edwards’s petition in its entirety, ruling that he suffered no deprivation of his
rights under the federal constitution or any federal statutes. The district court found that
the Parole Commission did not have authority to re-impose a term of special parole,
citing Dolfi v. Pontesso, 156 F.3d 696, 698-99 (6th Cir. 1998). However, the court
reasoned that this mistake was harmless because Edwards would have forfeited his

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“street time” under regular parole as well. Edwards timely appealed what he perceives
to be the continual re-imposition of the ten-year special-parole restrictions and also
submits that his salient factor score—used to determine the date on which he should be
released from prison—was miscalculated.
As an initial matter, 28 U.S.C. § 2241 is the proper vehicle for challenging the
conditions of Edwards’s parole. Although 28 U.S.C. § 2255 provides “the primary
avenue for relief for federal prisoners protesting the legality of their sentence, . . .
§ 2241 is appropriate for claims challenging the execution or manner in which the
sentence is served.” United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001).
Because Edwards is challenging the manner in which his parole is to be served, his
claims were properly brought pursuant to the provisions of § 2241. “This court reviews
de novo the district court’s dismissal of a habeas petition filed pursuant to 28 U.S.C.
§ 2241.” Evans v. Zych, 644 F.3d 447, 449 (6th Cir. 2011).
Because under current parole law Edwards’s street time is forfeited anyway—as
explained below—we need not decide the interesting and difficult issue of whether our
decision in Dolfi—holding that a revoked special-parole term could not be
reimposed—remains valid law after the Supreme Court’s decision in Johnson v. United
States, 529 U.S. 694 (2000). Even when lower courts and litigants would like to know
the answer, it is better not to decide legal issues, no matter how important, when the
resolution of the question has no effect on the parties on appeal. See Pierre N. Leval,
Judging Under the Constitution: Dicta about Dicta, 81 N.Y.U. L. Rev. 1249, 1255-63
(2006).
In Dolfi, we held that the Parole Commission did not have authority under 21
U.S.C. § 841(c) to impose a new term of special parole after revoking the original term.1

1

21 U.S.C. § 841(c) provides:

A special parole term . . . may be revoked if its terms and conditions are violated. . .
[T]he original term of imprisonment shall be increased by the period of the special
parole term and the resulting new term of imprisonment shall not be diminished by the
time which was spent on special parole. A person whose special parole term has been
revoked may be required to serve all or part of the remainder of the new term of
imprisonment.

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156 F.3d at 698-700. We reasoned that the statute’s use of the term “revoke” indicated
that the special-parole term disappears and is replaced by a term of imprisonment that
can be cut short only under traditional parole, under which the offender gets credit for
street time. Id. at 698-99. The court relied on its previous conclusion regarding an
“analogous point with respect to a successive term of supervised release under 18 U.S.C.
§ 3583(e)(3), the statute which replaced § 841(c) and contains almost identical
language.”2 Id. at 699 (citing United States v. Truss, 4 F.3d 437, 441 (6th Cir. 1993)).
In Truss, the court determined that § 3583(e)(3) contemplated only a complete
revocation of supervised release, which prevented the imposition of successive new
terms of supervised release. 4 F.3d at 441. The Dolfi court stated, “Given the similarity
of § 841(c) and § 3583(e)(3), we agree . . . that any attempt to distinguish the revocation
of special parole from the revocation of supervised release is a distinction without a
difference.” 156 F.3d at 699 (internal quotations omitted).
The Supreme Court’s decision in Johnson v. United States arguably compels a
different conclusion. In Johnson, the Supreme Court considered the meaning of the
supervised release statute, § 3583(e)(3), and rejected Truss’s interpretation of the term
“revoke.” Johnson, 529 U.S. at 704. The Court recognized that if it “were to
concentrate exclusively on the verb ‘revoke,’ [it] would not detect any suggestion that
the reincarceration might be followed by another term of supervised release” because
revoke conventionally means “to annul by recalling or taking back.” Id. However, the
court chose to embrace an “unconventional” definition of “revoke” because it found a
distinction between the word “terminate” used in § 3583(e)(1) and the word “revoke”
used in § 3583(e)(3).3 Id. On the other hand, Johnson may be understood as being
2

Section 3583(e)(3) authorizes a district court to:

revoke a term of supervised release, and require the defendant to serve in prison all or
part of the term of supervised release authorized by statute for the offense that resulted
in such term of supervised release without credit for time previously served on
postrelease supervision . . . .
3

Section 3583(e)(1) provides that “[t]he court may . . . terminate a term of supervised release and
discharge the defendant released at any time after the expiration of one year of supervised release . . . .”
Section 3583(e)(3) provides that “[t]he court may . . . revoke a term of supervised release, and require the
defendant to serve in prison all or part of the term of supervised release without credit for time previously
served on postrelease supervision, . . . .”

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limited to the supervised release context. Our unpublished opinion in Gillmore v. United
States Parole Commission, 124 F. App’x 941, 942 (6th Cir. 2005), so reasoned.
Regardless of Dolfi’s continuing vitality, Edwards suffered no harm from the
reimposition of special parole because he would have forfeited his “street time” even if
he had been serving regular parole. Under 18 U.S.C. § 4210(b)(2), the Parole
Commission is empowered to determine how to award credit for street time following
a parole violation.4 Pursuant to that statute, the Parole Commission promulgated 28
C.F.R. § 2.52(c)(2), which provides that a parolee forfeits all street time if he is
convicted of a new offense punishable by any term of imprisonment. The regulation
reads:
[I]f a parolee has been convicted of a new offense committed subsequent
to his release on parole, which is punishable by any term of
imprisonment . . . forfeiture of time from the date of such release to the
date of execution of the warrant is an automatic statutory penalty, and
such time shall not be credited to the service of the sentence.
28 C.F.R. § 2.52(c)(2). It is undisputed that Edwards was convicted of crimes
punishable by terms of imprisonment subsequent to his release on parole. On at least
two charges, Edwards did in fact serve time in prison. Accordingly, even if he had been
on regular parole, he would have forfeited his street time.
Edwards attacks the validity of 28 C.F.R. § 2.52(c)(2), arguing that it is contrary
to the express terms of 18 U.S.C. § 4210(b)(2). As Edwards notes, in general, a term of
parole must terminate “no later than the date of the expiration of the maximum term
. . . .” 18 U.S.C. § 4210(b). This means that, in the ordinary case, street time is credited.

4

In pertinent part, 18 U.S.C. § 4210(b)(2) provides:

[I]n the case of a parolee who has been convicted of any criminal offense committed
subsequent to his release on parole, and such offense 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.

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However, § 4210(b)(2) creates an exception to that rule where a parolee commits an
offense punishable by imprisonment while on parole. In those instances, the statute
directs the Parole Commission to “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 . . . .” Id. (emphasis added). Based on this
language, Edwards contends that the Parole Commission is statutorily bound to conduct
case-by-case hearings with notice to the parolees and an opportunity to be heard.
The statute, however, does not mandate such case-by-case determinations. Even
where Congress uses such language as “in each case,” the Supreme Court has repeatedly
reaffirmed that “the decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly expresses an intent to
withhold that authority.” Am. Hosp. Ass’n v. NLRB, 499 U.S. 606, 612 (1991). In
American Hospital Association, the Court quoted administrative law scholar Kenneth
Culp Davis:
[T]he mandate to decide “in each case” does not prevent the Board from
supplanting the original discretionary chaos with some degree of order,
and the principal instruments for regularizing the system of deciding “in
each case” are classifications, rules, principles, and precedents. Sensible
men could not refuse to use such instruments and a sensible Congress
would not expect them to.
Id. (quoting K. Davis, Administrative Law Text § 6.04, p. 145 (3d ed. 1972)). This has
been the consistent holding of the Supreme Court with regard to regulatory statutes over
the decades. See Heckler v. Campbell, 461 U.S. 458, 467 (1983); FPC v. Texaco, Inc.,
377 U.S. 33, 41-44 (1964); United States v. Storer Broadcasting Co., 351 U.S. 192, 205
(1956). The statutory language in this case does not even say “in each case,” but merely
provides that the “Commission shall determine.” It follows from the precedents just
cited that the Commission is permitted to make its determination on an across-the-board
basis, if in its discretion it decides to do so. Giving the words of the statute their usual
and ordinary meaning, the Commission has determined “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). The

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applicable provisions of 28 C.F.R. § 2.52(c)(2) do not contravene the mandate contained
in 18 U.S.C. § 4210(b)(2), and they require the forfeiture of street time in Edwards’s
case.
We recognize that the Ninth Circuit reached a different conclusion in Rizzo v.
Armstrong, 921 F.2d 855 (9th Cir. 1990).

It did so, however, by treating the

Commission regulation as an incorrect interpretation of the statute, rather than as an
exercise of delegated discretion. Id. at 861. But even when a regulation purports to
“interpret” a statutory term, the regulation may serve as an exercise of properly
delegated discretion. Indeed, this is the underlying reasoning of the famous Chevron
case. In Chevron, U.S.A. Inc. v. NRDC, 467 U.S. 837, 842-44 (1984), a regulation
defining a statutory term was held to be an exercise of delegated discretion. Here it is
even clearer than in Chevron that the agency was given the power to make the
determination, and the fact that the exercise of the power was in the form of a statutory
construction should make no more difference here than in Chevron. The statute, as the
Ninth Circuit itself emphasized, “makes forfeiture of street time in all instances a
discretionary decision on the part of the Commission.” Rizzo, 921 F.2d at 861. There is
nothing to prevent the Commission from exercising the discretion on an across-the-board
basis.5
5

Even as a pure interpretation, the interpretation that street time must be forfeited under the
regular parole statute is the subject of a circuit split, as recognized by the Ninth Circuit. See Rizzo, 921
F.2d at 860 n.4 (citing United States ex rel. Del Genio v. U.S. Bureau of Prisons, 644 F.2d 585, 588 (7th
Cir. 1980)). We need not take sides in this split, as the Seventh Circuit’s position would also require us
to rule against Edwards. The split turns on different readings of the legislative history of § 4210. The
House Conference Report 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 of incarceration or upon the Commission
determining that the sentence run concurrently with any new sentence that may have
been imposed . . . .
The phrase “punishable by a term of imprisonment, detention or incarceration
in a penal facility” is intended by the Conferees to mean any term of confinement which
may be levied upon adjudication of guilt or delinquency and does not include detention
prior to adjudication. For example, a person convicted of any offense punishable by
even one day of imprisonment would not automatically receive credit toward service of
his sentence, even if no sentence of imprisonment was imposed.
H.R. Rep. No. 94-838, 94th Cong., 2d Sess., 31-32 (1976) reprinted in 1976 U.S.C.C.A.N. 351. The Rizzo

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Edwards in this context also relies on the rule of lenity. However, as the
Supreme Court noted, “[t]he rule of lenity only applies if, after considering text,
structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the
statute, . . . such that the Court must simply guess as to what Congress intended.”
Barber v. Thomas, 130 S.Ct. 2499, 2508–09 (2010) (internal quotations and citations
omitted). As the foregoing discussion makes clear, no such “grievous ambiguity” exists
in 18 U.S.C. § 4210(b), making the rule of lenity inapplicable.
Finally, Edwards makes an argument regarding his “salient factor score,” used
by the Parole Commission to recommend the length of prison time, but that issue is now
moot. Following Edwards’s conviction for wire fraud in 2007, his parole was revoked.
This triggered the Parole Commission’s duty to recommend a term of imprisonment to
precede Edwards’s

re-parole.

To make this recommendation, the Commission

formulated a “salient factor score” that “serves as an aid in determining the parole
prognosis (potential risk of parole violation).” 28 C.F.R. § 2.20(e). After utilizing a
guideline table found in the applicable regulation, the Commission recommended in
2008 that Edwards serve 34-44 months in prison. Edwards now asserts that the
Commission’s salient factor score was incorrect and asks that “this Court . . . order
Edwards’s release, unless the Commission conducts a new salient factor scoring within
a reasonable time, properly applying its regulations and justifying its result.”
Edwards was, however, paroled from federal prison on January 10, 2010. “If
events occur during the case, including during the appeal, that make it ‘impossible for
the court to grant any effectual relief whatever to a prevailing party,’ the appeal must be
dismissed as moot.” Fialka-Feldman v. Oakland Univ. Bd. of Trs., 639 F.3d 711, 713
(6th Cir. 2011) (quoting Church of Scientology v. United States, 506 U.S. 9, 12 (1992)).
Because Edwards has already been released from incarceration, that portion of this
appeal is now moot.

court interpreted the last line of this legislative history as creating ambiguity as to the role of the
Commission. However, the last line arguably only clarifies that the term “offense punishable by
imprisonment” does not mean a felony, but any offense punishable by any amount of imprisonment. The
legislative history thus suggests that Congress wanted street time forfeited, and if it does not require that
forfeiture, at the very least gave the Commission the discretion to make that determination.

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Edwards nevertheless insists that a case or controversy still exists because the
alleged wrong—the inclusion in the salient factor scoring of two contested criminal
dispositions—is capable of repetition. Edwards argues that he has violated parole in the
past, and may do so again. It is true that the Supreme Court has recognized an exception
to the case-or-controversy requirement for errors that are “capable of repetition, yet
evading review.” S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). We decline
to presume, however, that an individual will likely commit criminal acts in the future or
violate reasonably imposed parole terms. This challenge is therefore moot.
For the foregoing reasons, the district court’s denial of Edwards’s petition is
affirmed.