Mance v. United States Parole Commission

Filing 17

OPINION: Victor Mance ("Mance" or the "Petitioner"), proceeding pro se, has petitioned for a writ of habeas corpus under 28 U.S.C. § 2241 (the "Petition") to correct the error of the United States Parole Commission (the "Commission") revoking his parole. Based on the conclusions set forth below, the Petition is denied. The Warden is substituted as the respondent to the Petition and the Petition is denied. (The Warden of the Federal Correctional Institution in Otisville, New York added. United States Parole Commission terminated.) (Signed by Judge Robert W. Sweet on 5/17/2017) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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VICTOR MANCE,
Petitioner,
-against-

16 Civ. 7249
OPINION

UNITED STATES PAROLE COMMISSION,
Respondent.

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USDCSDNY
DOCUI\1ENT

A P P E A RA N C E S:

ELECTRONICALLY FILED
DOC#:
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DATE FJLL
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Pro Se
VICTOR MANCE
F.C.I. Otisville
P.O. Box 1000
Otisville, NY 10963

Attorneys for Respondent
United States Attorney's Office
Southern District of New York
8 6 Chambers Street, Third Floor
New York, NY 10007
By:
Sharanya Mohan, Esq.

=

I /(J 1

Sweet, D.J.

Victor Mance ("Mance" or the "Petitioner"), proceeding
pro se, has petitioned for a writ of habeas corpus under 28
U.S.C. § 2241 (the "Petition") to correct the error of the
United States Parole Corrunission (the "Corrunission") revoking his
parole. Based on the conclusions set forth below, the Petition
is denied.

I.

Prior Proceedings

On April 8, 1987, the U.S. District Court for the
Southern District of New York sentenced Petitioner in case
number S87 Cr. 00034-0l(WK) to an aggregate prison sentence of
ten years to be followed by five years' probation for armed
robbery of a U.S. Post Office, threatening a witness to induce
the withholding of testimony, and using a firearm in relation to
a crime of violence for an offense he corrunitted in 1986. See
Certificate of Paula Biderman, dated October 31, 2016 ("Biderman
Cert."), Ex. 1 (Judgment and Corrunitment Order).

When he corrunitted the offense, Petitioner was on
parole from a ten-year sentence imposed in 198 2 by the Bronx

1

Supreme Court for robbery and criminal use of a firearm.
Biderman Cert., Ex. 2 (Presentence Report, or "PSR") at 6. He
also had two robbery cases pending in the Bronx Supreme Court of
the State of New York Court of the Bronx for offenses he
committed on March 18, 1986. PSR at 7. The two robbery cases
were consolidated, and on February 6, 1987, he pleaded guilty to
attempted robbery in the Supreme Court and was sentenced to five
to ten years' imprisonment to run concurrently with any federal
time imposed. Biderman Cert., Ex. 3 (Prehearing Assessment) at
1. The State of New York lodged a parole violator detainer for
the 1982 sentence and another detainer for the 1987 sentence.
Biderman Cert., Ex. 4 (Bureau of Prisons ("BOP") Sentence
Summary) .

On January 16, 1992, the Commission ordered that the
Petitioner continue to serve through the expiration of his
sentence due to the severity of the conduct for which he was
incarcerated. Biderman Cert., Ex. 5 (Notice of Action).

On

February 2, 1993, Petitioner was released from federal custody
by mandatory release under 18 U.S.C.
conditions of 18 U.S.C

§

§

4163, subject to the

4164, with 1,434 days remaining on his

sentence. Biderman Cert., Ex. 6 (Certificate of Mandatory
Release). The Petitioner was to remain subject to the 15

2

conditions of release until July 10, 1996.

Id. Because of a

detainer lodged by the New York State Department of Corrections,
the BOP transported the Petitioner from the federal institution
to the custody of the New York State Department of Corrections,
where he remained in confinement until June 27, 1995. Biderman
Cert., Ex. 7 (Criminal History Summary) at 10.

On May 8, 1996, Petitioner's U.S.

Probation Officer

asked the Commission to issue a parole violator warrant.
Biderman Cert., Ex. 8 (Violation Report). The Officer reported
that Petitioner was arrested on September 8, 1995 by New York
State authorities and charged with second degree attempted
murder,

first degree robbery, second degree burglary, second

degree criminal possession of a weapon, and fourth degree
criminal possession of stolen property.

Id. Based on the new

charges, the Commission issued a warrant on May 17, 1996, and
instructed the U.S. Marshal to lodge the warrant as a detainer.
Biderman Cert., Ex.

9 (Warrant Application and Warrant). On

August 28, 1997, Petitioner was convicted of robbery, and the
Bronx County Supreme Court sentenced him to imprisonment for 15
years to life. Biderman Cert., Ex. 10 (Bronx County Supreme
Court Judgment and Warrant Application Supplement).

3

On December 29, 2015, Petitioner was released from
state custody and taken into custody on the Commission's
warrant. Biderman Cert., Ex. 9 (Warrant Application and Warrant)
at 3. The Commission supplemented the warrant on January 27,
2016 to reflect the state conviction. Biderman Cert., Ex. 10
(Bronx County Supreme Court Judgment and Warrant Application
Supplement). The Commission found probable cause for the charged
violation of robbery based on the new conviction. Biderman
Cert., Ex. 11 (February 2, 2016 Probable Cause Letter).

On February 12, 2016, the Commission provided
Petitioner with an expedited revocation proposal to resolve the
charges without a hearing. Biderman Cert., Ex. 12 (February 12,
2016 Letter and Response). The proposal would have resulted in
revocation of Petitioner's mandatory release supervision,
forfeiture of the time since his last release on supervision
until the warrant was executed, and re-parole effective October
7, 2016, after service of 253 months.

Id. Petitioner rejected

the proposal. Id.

The Commission provided the Petitioner an
institutional revocation hearing on March 8, 2016. Biderman
Cert., Ex. 13 (Hearing Summary). By notice of action dated March

4

24, 2016, the Commission revoked the Petitioner's parole
(mandatory release), forfeited the time he had spent on federal
parole , and ordered that Petitioner continue to serve through to
the expiration of his sentence . Biderman Cert., Ex. 14

(Notice

of Action) .

The Petitioner filed an administrative appeal of the
decision to the Commission's National Appeals Board under 18
U.S . C . § 4215(b) and 28 C.F.R . § 2 . 26. Biderman Cert . , Ex . 15
(Appeal) . Among his claims, the Petitioner asserted that the
Commission unlawfully denied him credit for the time he served
in confinement on a state sentence from his mandatory release
date of February 2, 1993 until June 27, 1995 . Id . The Board
affirmed the decision on September 28, 2016. Biderman Cert. , Ex .
16 (Notice of Action on Appeal) . The Board found that the
decision was within the Commission ' s discretion and consistent
with the Commission's policy . Id.

Petitioner then filed the instant petition on
September 16, 2016 (the "Petition") . Because Petitioner received
a final decision from the National Appeals Board, he satisfied
the requirement that he exhaust his administrative remedies

5

before seeking relief under

§

2241. See Carmona v. United States

Bureau of Prisons, 243 F.3d 629,

634

(2d Cir. 2001).

The Petition alleges that the Commission erred in
calculating the time remaining on his federal sentence when
revoking his parole. Petition at 4. The Petitioner claims he is
entitled to credit toward his federal sentence for the time he
served in New York State prison from his mandatory release date
of February 2, 1993 until June 27, 1995, when he was released
from New York State custody. Id. Because he was not actually
released from confinement until June 27, 1995, Petitioner claims
that time was not "street time" and not subject to forfeiture
under 28 C.F.R.

§

2.52(c) (2 ). The Petitioner seeks an order from

this Court directing the Commission to "credit the time spent in
State confinement toward satisfaction of the revocation sentence
the petitioner is now serving." Petition at 6. The Petition was
marked fully submitted on December 28, 2016.

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II.

The Warden is Substituted as Respondent for the Commission

The Commission is not a proper respondent to this
petition. In a habeas corpus petition under 28 U.S.C.
U.S.C.

§

§

2241, 28

2243 requires that federal habeas writs be directed to

the "pers o n having custody of the person detained," i.e., the
warden of the institution in which the prisoner is confined. See
28 U.S.C.
(2004)

§

2243; Rumsfeld v. Padilla, 542 U.S. 426, 427, 435

(holding that habeas petitioner should name his warden as

respondent and file petition in the district of confinement).
The Warden of the Federal Correctional Institution in Otisville,
New York (the "Warden"), where Petitioner is currently
incarcerated, is therefore substituted as the respondent.
Buchanan v. Warden,

FCI Otisville, No. 13 Civ.

See

6356 (ALC), 2014

W 377820 5, at *3 (S . D. N. Y. Ju l y 31 , 20 1 4) .
L

III.

The Petition is Denied

The Petition is denied because the Commission acted
within its statutory authority to deny credit from Petitioner's
mandatory release date until the date the parole warrant was
executed, including the time he served in confinement in New
York State custody. See D'Amato v. U.S.

7

Parole Comm'n,

837 F.2d

72, 79 (2d Cir. 1988)

(recognizing 18 U.S.C.

§

4210 (b) (2) 's

grant of authority to the Commission); Weeks v. Quinlan , 838
F.2d 41, 44

(2d Cir . 1988)

(" [U]nder the Parole Act , the Parole
to implement the parole

Commission is given broad latitude .
statutes."). As enunciated in 18 U.S.C.

§

4210(b) (2), the

Commission has the authority to grant or deny credit on the
original sentence for a parolee who is convicted of a new crime
he committed while on parole:
[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 .
. 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) . 1 Pursuant to this statutory authority,

the Commission adopted the policy in 28 C.F.R.

§

2 .5 2 (c) (2) ,

which provides that "[i]t is the Commission's interpretation of
1 8 U.S.C.

§

4210(b) (2) that, if a parolee has been convicted of

1

Petitioner attaches to his Petition documentation concerning
his efforts to exhaust any remedies available to him through the
BOP's Adlninistrative Remedy Program. Dkt. No. 1-1. As those
documents reflect, Petitioner challenged, as he does through the
instant Petition, the Commission's refusal to credit his time
spent in state custody between 1993 and 1995. This decision was
a decision of the Commission, not of the BOP. 18 U.S.C. §
4210(b) (2).
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a new offense committed subsequent to his release on parole,
which is punishable by any term of imprisonment, detention, or
incarceration in any penal facility,

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). Thus, time spent on parole, or "street time," is
subject to forfeiture if a parolee commits a new crime while on
parole. See Lachance v. Reno, 13 F.3d 586, 589 (2d Cir. 1994)
(The Parole Commission's interpretation of the statute [in 28
C.F.R. 2.52(c) (2)] to mean that forfeiture may be imposed for an
imprisonable offense, even where no sentence of imprisonment has
been imposed, is not only 'sufficiently reasonable,' but
consistent with the intent of Congress.").

As required by policy and authorized by statute, the
Commission properly denied credit on the Petitioner's federal
sentence from the date of his mandatory release until the
violator warrant was executed on December 29, 2015, including
the time he was confined in state custody. During this period,
as a mandatory releasee, Petitioner was subject to all
provisions relating to parole of U.S. prisoners. See 18 U.S.C.
§

4164; 2 8 C.F.R.

§

2.35(a); Decuir v. U.S.

9

Parole Comm'n,

800

F.2d 1021, 1022-1023 (10th Cir. 1986)

(former inmate released on

mandatory release was "subject to the same conditions of release
and Commission supervision as true parolees" until the
expiration of the released prisoner's maximum term less 180
days). Because the Petitioner violated his mandatory release
supervision by committing a new robbery, the Commission was
required under its policy to deny sentence credit retroactively
from the time he was mandatorily released from federal custody
until the date the warrant was executed. The forfeited time is
not credited toward the balance of the sentence remaining to be
served since the last release.

Petitioner has contended that the time he spent on
mandatory release confined in New York State custody was not
"street time," and therefore not subject to forfeiture, because
he was not released to the community. He claims that because he
was in prison and not on the "street," the Commission must
credit that as if he were serving prison time on his sentence.
However, the forfeiture rule in 28 C.F.R.

§

2 . 52(c) requires

that a violator receive no sentence credit from the date of
release on parole until the date the warrant was executed . The
relevant question is when the parolee was paroled from federal
custody, not where; federal law does not distinguish between

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time spent on parole or mandatory release while in confinement
on a state sentence and time spent on parole in the community.
Tucker v . Carlson , 925 F.2d 330, 332 (9th Cir. 1991)

("[T]here

is no statutory provision that accords a prisoner credit against
a federal sentence for time served in a state prison on a state
charge.")

(internal quotation marks and citation omitted).

That Petitioner was not released from custody to the
street on his mandatory parole date but was instead released to
state custody pursuant to a state detainer does not change the
fact that Petitioner was released on parole fr om the date of his
mandatory release. "Where a prisoner has violated both state and
federal law and is convicted by both forums, he has brought down
upon himself the possibility of being paroled from federal
prison to state prison; and there is nothing about a

'parole to

a state detainer' that inherently contradicts the notion of
'parole.'" Garafola v . Wilkinson,
1983); see Weeks,

721 F.2d 420,

838 F.2d at 45-47

424-25 (3d Cir.

(affirming ruling that time

in state custody was subject to forfeiture); Staege v. US Parole
Comm'n,

671 F.2d 266, 269 (8th Cir. 1982)

(federal parolee not

entitled to state time credit even when state sentencing judge
intended to have state and federal sentences served
concurrently); see also United States ex. rel. Stanbridge v.

11

Quinlan, 595 F. Supp. 1145, 1150 (S.D.N.Y. 1984)

(holding that

"release on federal parole to a state detainer is release on
parole," and petitioner was not entitled to credit for time
spent in state custody) .

Petitioner seeks to bypass the relevant statutory
framework by relying on 18 U.S.C. § 3624(e), a statute dealing
with supervised release, enacted as part of the Sentencing
Reform Act. Petitioner also contends that, because his state
sentencing term included an aggregate term for violation of
state parole, the Commission should have determined that federal
parole ran concurrently with state parole, and that concurrent
period should therefore be credited. Dkt. No. 3, at 5-6. To
support this argument, Petitioner cites to 28 C.F.R. 2.52(c) (5)
for the proposition that "revocation of probation/supervised
release does not constitute a conviction for a crime conlmitted
while on parole." Id. at 6.

Petitioner's parole was revoked not for a separate
revocation of probation or supervised release, but for a robbery
conviction. With certain inapplicable exceptions, the provisions
of the Sentencing Reform Act of 1984 do not apply to "old law"
prisoners who committed their offenses before November 1, 1987.

12

.

'

See Dorrough v. United States,
2001)

(18 U.S.C.

§

13 F. App'x 945,

955

(Fed. Cir.

3624 applies only to offenses committed after

November 1, 1987). Since Petitioner committed his offense
behavior prior to November 1, 1987, the Sentencing Reform Act
does not apply to him, and his sentence is not controlled by the
federal sentencing guidelines or an y other provisions enacted
under the Sentencing Reform Act.

IV.

Conclusion

The Warden is substituted as the respondent to the
Petition and the Petition is denied.

It is so ordered.

New York, NY
May ~ 2017

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