Ivy v. Harmon

Filing 24

MEMORANDUM AND ORDER ENTERED: The petition for writ of habeas corpus is denied. Signed by District Judge John W. Lungstrum on 05/14/18. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
HENRY L. IVY, JR.,
Petitioner,
v.

CASE NO. 18-3007-JWL

STEVEN HARMON,
Jailer,
Respondent.

MEMORANDUM AND ORDER
This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241. Petitioner,
currently in parole revocation proceedings, challenges the legality of the United States Parole
Commission (“USPC”) warrant authorizing his detention. For the reasons set forth below, the
Court denies the petition for lack of merit.
I. Facts
On May 12, 1988, Petitioner was convicted in the United States District Court for the
Western District of Missouri of the following crimes committed prior to November 1, 1987:
conspiracy to distribute cocaine and cocaine base; possession with intent to distribute cocaine
base; and use of firearms during the commission of a felony. (Doc. 20–1, at 2, 4.) On July 29,
1988, Petitioner was sentenced to “20 (twenty) years on Count 1, 20 years on Count 2, 20 years
on Count 3, 20 years on Count 4, 40 (forty) years on Count 5, mandatory 5 (five) years on
Count 6, 40 (forty) years on Count 7.” Id. at 2. All counts were to run concurrent with one
another, except for Count 6, which must be served consecutively to the other sentences. Id. The
sentence also included five years of special supervised release. Id.

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On January 23, 1991, the sentencing judge ordered that Petitioner be resentenced. Id. at
4. The court found that:
defendant’s post-confinement supervision should be by “special
parole term” rather than the court imposed “supervised release.”
Supervised release became effective as of November 1, 1987,
United States v. Padilla, 869 F.2d at 381, but, prior to November 1,
1987 post-confinement supervision was by “special parole term.”
Defendant committed the crimes for which he was convicted and
sentenced prior to November 1, 1987, thus, his post-confinement
supervision should be amended to “special parole term.”
Id. at 4–5.

The court scheduled Petitioner’s resentencing for February 28, 1991.

On

February 19, 1991, prior to Petitioner’s resentencing, the Supreme Court of the United States
issued its decision in Gozlon-Peretz v. United States, 498 U.S. 395 (1991). The Supreme Court
held that “for offenses committed in the interim period between October 27, 1986, and
November 1, 1987, supervised release applies for all drug offenses in the categories specified by
ADAA § 1002.” Id. at 409. Petitioner was resentenced on March 7,1991. The order states that
Petitioner was “to serve five (5) years special supervised release program on Counts 2, 3, and 4,
to run concurrent terms of each count.” (Doc. 20–1, at 6.)
The USPC issued a Certificate of Mandatory Release for Petitioner on October 9, 2013.
Id. at 11. The Certificate included categories for “Mandatory Release,” “Special Parole,” and
“Court Designated Parole.” Id. The category for “Mandatory Release” is checked and provides
that Petitioner:
is entitled to 6695 days Statutory and/or Extra Good Time
deductions from maximum term sentence imposed as provided by
law, and is hereby released from this institution under said
sentence on 07-24-2014. Said person was released by the
undersigned according to Title 18 U.S.C. Section 4163. Upon
release the above named person is to remain under the jurisdiction
of the United States Parole Commission, as if on parole as
provided in Title 18, U.S.C. Section 4164, as amended under the
conditions set forth on the reverse side of this certificate, and is
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subject to such conditions until expiration of the maximum term,
or terms of sentence, less 180 days on 09-15-2032 with a total of
6808 days remaining to be served.
Id. Petitioner was released from prison on July 24, 2014, via mandatory release. Id. at 8, 10.
The Sentence Monitoring Computation Data as of July 24, 2014, has a line for “special parole
term,” which is left blank. Id. at 8.
On September 5, 2014, a USPC Case Analyst requested that the Commission issue a
warrant for Petitioner’s arrest for violating the terms of his mandatory release. Id. at 14–15. The
Warrant Application alleges that Petitioner was arrested on September 3, 2014, for possession of
heroin, possession with intent to distribute heroin, and possession of marijuana. Id. The USPC
signed and issued the warrant that same day. Id. at 16. On May 23, 2017, the United States
Marshals executed the warrant and arrested Petitioner in Nashville, Tennessee. Id. at 17. The
Case Analyst supplemented the arrest warrant on September 15 and September 18, 2017, to add
charges for leaving the district without permission, failure to report change in residence, and
failure to report to supervising officer as directed. Id. at 18–19. On October 25, 2017, the Case
Analyst corrected the September 18, 2017 warrant supplement to add language stating that
Petitioner had not had contact with his supervising officer since an in-person visit on August 18,
2014, and his whereabouts were unknown until his arrest in May, 2017. Id. at 20.
On August 4, 2017, the Probation Office for the Western District of Kentucky attempted
to conduct Petitioner’s preliminary interview to allow the Commission to make a probable cause
determination. Id. at 21. Because Petitioner elected to be represented by counsel and counsel
had not been assigned, the preliminary interview was postponed until August 10, 2017. Id.
After the preliminary interview, the interviewing officer recommended that the USPC make a

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finding of probable cause. Id. at 22. On November 16, 2017, the USPC informed Petitioner
through counsel that they had made a probable cause finding. Id. at 23–25.
Petitioner filed this § 2241 petition in the United States District Court for the Western
District of Kentucky, and the matter was transferred to this Court on January 8, 2018, due to
Petitioner’s transfer to Leavenworth, Kansas.
II. Discussion
Prior to November 1, 1987, the terms of federal sentences were governed by The Parole
Commission and Reorganization Act of 1976 (“PCRA”), which “empowered the Parole
Commission to evaluate prisoners’ behavior and to award them early release on the basis of
positive institutional adjustment.” Bledsoe v. United States, 384 F.3d 1232, 1233 (10th Cir.
2004) (citations omitted). Congress, dissatisfied with this system, passed the Sentencing Reform
Act of 1984 (“SRA”), which became effective on November 1, 1987, when it repealed and
replaced the PCRA. Id. “Under the SRA, parole was to be abolished, the Parole Commission
was to be phased out, and prisoners were to serve uniform sentences under sentencing
guidelines.” Id.
The SRA eliminated the “special parole” 1 drug offenders had been required to serve prior
to the SRA, and replaced it with a new system of supervised release. Gozlon-Peretz v. United
States, 498 U.S. 395, 397 (1991). “To ensure the orderly implementation of this change,”
Congress delayed the effective date of the SRA’s supervised release provisions until
November 1, 1987. Id. However, a year before that effective date, Congress enacted the Anti-

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Before the SRA abolished parole in federal cases, “ordinary parole was the supervised release of a prisoner before
he had completed his entire prison sentence.” Matamoros v. Grams, 706 F.3d 783, 786 (7th Cir. 2013). “Courts have
described special parole as being entirely different from and in addition to ordinary parole, as it follows the
completion of ordinary parole and subjects the defendant to incarceration during the entire special parole term if its
conditions are violated.” Id.
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Drug Abuse Act of 1986 (“ADAA”), “which mandates terms of supervised release for certain
drug offenses.” Id.
The Supreme Court in Gozlon-Peretz, addressed the issue of whether the ADAA’s
supervised release requirements apply to offenses committed during the interim period after the
enactment of the ADAA but before the effective date of the SRA. Id. The Supreme Court held
that § 1002 of the ADAA, which sets minimum and maximum sentences and mandates terms of
supervised release for certain drug offenses, took effect on its date of enactment—October 27,
1986. Id. at 404–07. The Supreme Court also held that “for offenses committed in the interim
period between October 27, 1986, and November 1, 1987, supervised release applies for all drug
offenses in the categories specified by ADAA § 1002.” Id. at 409.
Petitioner, whose offenses were likewise committed in this interim or gap period, relies
on Gozlon-Peretz in arguing that the statutes governing his drug offense sentences substituted
supervised release for parole as the method of postconviction supervision. Petitioner argues that
he should be subject to supervised release rather than special parole, and that the USPC has
erroneously asserted jurisdiction over a non-existent special parole term.
In arguing that he is being erroneously subjected to special parole, Petitioner points to the
fact that the USPC warrant application and warrant erroneously claim that he was subject to a “5
years Special Parole Term.” Despite this language, it is clear that Petitioner was released from
prison on July 24, 2014, via mandatory release. The October 9, 2013 “Certificate of Mandatory
Release” shows that Petitioner’s release is pursuant to 18 U.S.C. §§ 4163 and 4164, and the
Sentence Monitoring Computation Data as of July 24, 2014 shows mandatory release while
leaving blank the line designated for special parole. (Doc. 20–1, at 8–11.)

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The USPC’s jurisdiction thus arises from Petitioner’s mandatory release under 18 U.S.C.
§ 4163 (providing for mandatory release at the expiration of the sentence less a deduction for
good conduct time), and the mandate of § 4164 that he be supervised “as if on parole” until the
expiration of his sentence less 180 days. See DeCuir v. U.S. Parole Comm’n, 800 F.2d 1021,
1022–23 (10th Cir. 1986) (finding that mandatory release prisoners are treated “as if released on
parole” and subject to the same conditions of release and USPC supervision as true parolees, and
if not revoked, the status lasts until the expiration of the released prisoner’s maximum term less
180 days).
In Garcia-Cosme, the court addressed a similar issue and determined that the USPC
properly asserted its authority under 18 U.S.C. §§ 4163, 4164, and not under special parole.
Garcia-Cosme v. U.S. Parole Comm’n, Civil No. 06-5698 (RBK), 2007 WL 2990673 (D.N.J.
Oct. 5, 2007) (“courts have consistently held that a mandatory releasee is identical in all respects
to a parolee, and is subject to the supervision of the USPC until the expiration of the maximum
term, less 180 days”).
Petitioner argues that it is obvious that he should be on supervised release and not parole,
because one of his drug sentences is under a provision in § 1002 of the ADAA explicitly
prohibiting parole. The Fifth Circuit addressed a similar argument in United States v. Lewis, 211
F.3d 932 (5th Cir. 2000). Lewis, like Petitioner, was sentenced for a drug offense committed
during the interim period, and was later released under the mandatory release provisions of 18
U.S.C. §§ 4161–4164. Id. at 934. The court noted that although § 1002 mandated supervised
release for all individuals convicted of drug offenses after October 26, 1986, the “good conduct
statutes” at 18 U.S.C. §§ 4161–4164 were not repealed united November 1, 1987. Id. “The good
conduct statutes provide for mandatory early release based upon good conduct credits, and

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further posit that anyone so released shall be ‘deemed as if on parole.’” Id. (citing 18 U.S.C.
§ 4164). The Court held that because § 235(a)(1) of the SRA specifically mandated the repeal of
§§ 4161–4164 on November 1, 1987, this eliminated the possibility that Congress intended to
implicitly repeal those sections with § 1002. Id. The court found that despite the conflict
between § 1002 and the good conduct statutes, persons convicted of drug offenses committed
during the interim period might experience both parole and supervised release, depending on
their good conduct and the calculation of the USPC. Id. at 935; see also Haywood v. Slade,
No. CV 05-2848-VBF (JWJ), 2008 WL 928209, at *3 (C.D. Cal. April 2, 2008) (adopting Report
and Recommendation agreeing with the decision in Lewis and finding that where petitioner was
released pursuant to mandatory release, the fact that he was subject simultaneously to supervised
release did not affect the USPC’s authority to manage his parole, and that its holding is not
contrary to the Supreme Court’s decision in Gozlon-Peretz as it did not address the mandatory
release provisions).
Respondent agrees with the reasoning in Lewis and alleges that mandatory release
supervision is separate and distinct from Petitioner’s supervised release term. Petitioner argues
that the decision in Lewis fails to address the practical questions that arise from its vision of
simultaneous “parole” under the mandatory release statutes and supervised release. However,
that issue is not before the Court. Furthermore, the Tenth Circuit has addressed similar practical
issues resulting from the “congressional enactment of two overlapping statutes with differing
effective dates.” United States v. Reider, 103 F.3d 99, 101 (10th Cir. 1996). The Tenth Circuit
in Reider addressed the issue of when supervised release begins for an “interim period” offense
and noted the gap cases involve a “mixture of the two sentencing philosophies that are somewhat
at odds.” Id. at 102.

The Tenth Circuit relied on the language in 18 U.S.C. § 3624(e), which

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provides in pertinent part that: “The term of supervised release commences on the day the person
is released from imprisonment and runs concurrently with any Federal, State, or local term of
probation or supervised release or parole for another offense to which the person is subject or
becomes subject during the term of supervised release.” Id. (citing 18 U.S.C. § 3624(e)); see
also United States v. Lynch, 114 F.3d 61 (5th Cir. 1997); United States v. Delamora, 451 F.3d
977, 978 (9th Cir. 2006) (agreeing with the Third, Fifth and Tenth Circuits in deciding that, for
“gap” cases, the term of supervised release begins on the day they are released from
imprisonment, not the day their parole period ends); see also United States v. Van Riper, 982
F.2d 530 (10th Cir. 1992) (unpublished) (finding that from date of prisoner’s release under
§ 4164 until his term of parole was satisfied, he was concurrently on parole under Count I and
probation on Count II).
Petitioner also argues that § 4164’s general rule that a prisoner subject to mandatory
release be treated “as if on parole” is trumped by 18 U.S.C. § 924(c)’s specific prohibition on
parole. This same argument was raised in United States v. Fazzini, where the defendant argued
that 924(c)’s prohibition on parole prevented him from being “deemed as if released on parole”
under § 4164. United States v. Fazzini, 414 F.3d 695, 699 (7th Cir. 2005).
The Seventh Circuit in Fazzini distinguished mandatory release from ordinary parole; the
former merely “permit[s] good-time credits to be taken into account while computing the release
date,” while ordinary parole allows release after serving only about one-third of a sentence. Id.
Conceding the existence of “some tension” between 924(c)’s parole prohibition and the release
provided by § 4164, the court concluded that § 924(c) barred the benefit of early release under
ordinary parole while “allow[ing] the automatic rule of § 4164 to operate.” Id. In reaching this
conclusion, the court first analogized the good time credit aspect of mandatory release to the

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availability of good time credit under the SRA. Id. Next, the court analogized “parole” under
the mandatory release statutes to supervised release under the SRA. Id. The court held that “[i]t
would be passing strange to think that Congress wanted persons sentenced before the Guidelines
regime went into effect to be released at the end of their term, net of good-time credits, without
equivalent supervision.” Id.
Petitioner argues that the decision in Fazzini should be rejected because it is “based
solely on an incorrect legal premise, i.e., that supervised release is mandatory for 924(c)
convictions under the SRA,” when “§ 924(c) does not mandate a term of supervised release.”
Despite Petitioner’s issue with the court’s analogy, the court’s ultimate conclusion seems
reasonable. The court found that what § 924(c) prohibits is ordinary parole—“the far more
generous rule, from the prisoner’s standpoint, under which he or she would have become eligible
for parole after serving approximately one-third of the sentence.” Id.
The Court is unaware of any authority holding that an interim case like Petitioner’s is not
subject to the mandatory release provisions. Furthermore, when an inconsistency arises—either
by way of the parole prohibition in § 1002 of the ADAA or § 924(c)—courts have resolved it in
favor of upholding the mandatory release provisions. Likewise, Congress has continued to
extend those provisions for prisoners with offenses committed prior to the effective date of the
SRA. The mandatory release provisions were repealed by the SRA “and an Effective Date note
under 18 U.S.C. § 3551 of the SRA clearly states that the repeal is effective November 1, 1987
(the effective date of the SRA) for offenses committed after that date.” Rowland v. United
States, No. 97–5291, 156 F.3d 1232 (6th Cir. 1998) (citing Pub. L. 98-473, § 235(a)(1) (1984)
(emphasis added). However, for offenses committed prior to that date (like Petitioner’s), the
USPC was kept in existence for five years after the effective date of the SRA, in order to process

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inmates whose convictions predated the SRA and who would still be incarcerated by that date.
“[B]y explicitly setting November 1, 1987, as the repeal date for offenses committed after that
date, while delaying the repeal for offenses committed before that date, the SRA expressly
provided for the times at which the penalties under the good conduct statutes were to be
extinguished.” Id. at *4. The period for delaying the repeal has since been continuously
extended, with the most recent extension lasting through October 2018. See Ramsey v. U.S.
Parole Comm’n, 840 F.3d 853, 855 (D.C. Cir. 2016) (finding that despite the SRA’s abolishment
of parole, “[r]emnants linger, however, because repeal did not affect offenders convicted before
November 1987” and “Chapter 311 of title 18 continues to govern parole for such offenders”)
(citing 18 U.S.C. §§ 4201–4218, and United States Parole Commission Extension Act of 2013,
Pub. L. No. 113–47, § 2, 127 Stat. 572, 572 (Oct. 31, 2013) (extending parole system through
October 2018)).
Petitioner has failed to demonstrate that “[h]e is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S. C. § 2241(c)(3). See Skaftouros v.
United States, 667 F.3d 144, 158 (2d Cir. 2011) (holding that in a habeas corpus proceeding
pursuant to § 2241, “it is the petitioner who bears the burden of proving that he is being held
contrary to law, and because the habeas proceeding is civil in nature, the petitioner must satisfy
his burden of proof by a preponderance of the evidence”); Espinoza v. Sabol, 558 F.3d 83, 89
(1st Cir. 2009) (“[T]he burden of proof under § 2241 is on the prisoner.”) (citations omitted);
Wilson v. Keffer, Civil Action No. 08–1961, 2009 WL 1230020, at *4 (W.D. La. May 5, 2009)
(“In order to state a claim for relief pursuant to 28 U.S.C. § 2241, a habeas corpus petitioner
must allege and ultimately establish that he is in custody in violation of the Constitution and laws
of the United States; and, the habeas petitioner has the burden of proof with regard to his claims

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for relief.”). Petitioner has failed to show that the USPC erroneously asserted jurisdiction over
him based on a non-existent special parole term.

The USPC’s jurisdiction arises from

Petitioner’s release on mandatory release under 18 U.S.C. § 4163, and the mandate of § 4164
that he be supervised “as if on parole” until the expiration of his sentence less 180 days. The
petition is without merit and must be denied.
IT IS THEREFORE ORDERED BY THE COURT that this petition for writ of habeas
corpus is denied.
IT IS SO ORDERED.
Dated in Kansas City, Kansas, on this 14th day of May, 2018.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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