Sperling v. Recktenwald

Filing 15

ORDER (memorandum filed previously as separate docket entry)The Petitioners sentence under § 848(c) was clearly one for which release on parole was not allowed. See Pray v. Holt, 338 Fed. Appx. 167, 168 (3d Cir. 2009)(parole is not available fo r a life sentence under § 848). Since Sperlings sentence was imposed without parole, he is statutorily ineligible for mandatory parole under § 4206(d). See Gallardo, 874 F.2d at 187-88(Sperling committed a non-parolable offense); Graewe, 2013 WL 676273 * 2-3; United States v. Bello, 767 F.2d 1065, 1066-67 (4th cir. 1985). Accordingly, Petitioners request for federal habeas corpus relief will be denied. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 1/28/15. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
HERBERT SPERLING,

:
:
Petitioner
:
:
v.
: CIVIL NO. 3:CV-13-2278
:
MONICA RECKTENWALD, WARDEN,
: (Judge Conaboy)
:
:
Respondent
:
________________________________________________________________
MEMORANDUM
Procedural Background
Herbert Sperling filed this pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241 while previously
confined at the Allenwood Federal Correctional Institution,
White Deer, Pennsylvania (FCI-Allenwood).1
is FCI-Allenwood Warden Monica Recktenwald.

Named as Respondent
Service of the

Petition was previously ordered.
The Petitioner is no stranger to this Court as he has filed
multiple prior habeas corpus petitions stretching as far back as
1991.

See Sperling v. Keohane, Civil No. 3:91-1434 (Conaboy,

J.)
In Sperling v. Zenk, Civil No. 3:CV-00-1478, Petitioner
asserted that he was actually innocent of engaging in a

1

The Bureau of Prisons’ Inmate Locator tracking system
indicates that Sperling is presently housed at the Federal Medical
Center, Fort Devens, Massachusetts (FMC-Devens).
1

continuing criminal enterprise under the standards announced in
Richardson v. United States, 526 U.S. 1 (1999).

He argued his

conviction should be overturned because Richardson mandates that
a jury must be instructed to reach a unanimous verdict on each
of the specific violations that comprise a continuing criminal
enterprise.
By Memorandum and Order dated October 31, 2001, this Court
dismissed Sperling’s petition without prejudice on the basis
that an application requesting leave to file a successive § 2255
motion was the only vehicle available to Petitioner.

The

decision was affirmed by the Third Circuit Court of Appeals on
March 18, 2002.

On October 6, 2003, the United States Supreme

Court denied Sperling’s petition for writ of certiorari.
A subsequent similar § 2241 action by Petitioner, Sperling
v. Hogsten, Civil No. 3:07-CV-1116 (June 28, 2007) (Conaboy, J.)
was dismissed as being a second or successive petition pursuant
to 28 U./S.C. § 2244(a).

On December 11, 2007, the Third

Circuit Court of Appeals affirmed the dismissal.
On January 25, 2010, Petitioner filed a fourth § 2241
action, Sperling v. Ebbert, Civil No. 3:10-CV-191 with this
Court.

Therein, Petitioner argued that the Bureau of Prisons

(BOP) improperly denied him eligibility for the Elderly Offender
Home Detention Pilot Program (EOHDPP) By Memorandum and Order
dated December 16, 2010 this Court agreed that Sperling was not

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entitled to relief because he was precluded for eligibility for
the EOHDPP because he was serving a term of life imprisonment.
By decision dated July 20, 2011, the Court of Appeals affirmed
the dismissal of that action.
Sperling has now filed a fifth § 2241 action with this
Court which is ripe for consideration.
Petitioner’s motion to expedite.

Also pending is

See Doc. 14.

Factual Background
As previously discussed by this Court’s prior rulings,
Sperling was convicted, along with ten (10) other defendants, of
drug offenses following a jury trial in the United States
District Court for the Southern District of New York.

The

Petitioner was found guilty of conspiracy to violate narcotics
laws (Count 1); engaging in a continuing criminal enterprise
(Count 2); and three counts of possession with intent to
distribute heroin and cocaine (Counts 8, 9, and 10).

See United

States v. Sperling, 530 F. Supp. 672, 674 (S.D. N.Y.
1972)(Sperling was described as being “the kingpin in a vast
heroin and cocaine distribution enterprise”).

On September 12,

1973, he was sentenced to a term of life imprisonment on Count
2, and concurrent thirty (30) year terms on the remaining
counts.
In United States v. Sperling, 506 F.2d 1323, 1335 (2nd Cir.
1974), the United States Court of Appeals for the Second Circuit

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reversed and remanded Sperling’s convictions on Counts 8, 9, and
10.

The Second Circuit Court of Appeals also remanded Count 1

for resentencing since that sentence was to run concurrently to
the sentences imposed on the reversed counts.
Counts 8, 9, and 10 were nolle prossed.

On May 16, 1975,

Petitioner was

resentenced on Count 1 by the district court on May 17, 1976 to
a thirty (30) year term to run concurrently with the previously
imposed life sentence.

See United States v. Sperling, 413 F.

Supp. 845 (S.D.N.Y. 1976).

The Second Circuit Court of Appeals

subsequently vacated the sentence imposed on Count 1, on the
basis that it was a lesser included offense in the continuing
criminal enterprise charge (Count 2).

However, the decision

added that if the conviction for Count 2 was ever overturned,
the Count 1 sentence was to be reinstated.

See United States v.

Sperling, 560 F.2d 1050, 1060 (2nd Cir. 1977).

The Court of

Appeals specifically noted that its decision left “undisturbed”
the term of life imprisonment imposed for Count Two.

Id.

In his pending action, Petitioner asserts that although he
is serving a life sentence, pursuant to the provisions of 18
U.S.C. § 4206(d) he is entitled to release on parole or in the
alternative an immediate parole hearing.

His Petition explains

that even though he is serving a life sentence since he has been
in continuous custody for approximately forty (40) years without
ever having a parole hearing, he is eligible for parole

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consideration under § 4206(d) “which since has been abolished,
but was in full effect when the petitioner was sentenced.”

Doc.

1, p. 2.
Respondent argues that Petitioner is not entitled to
federal habeas corpus relief because he is not eligible for
mandatory parole under § 4206(d).

See Doc. 9, p. 2.

The

response asserts that Sperling was sentenced on September 12,
1973 prior to the effective date of § 4206(d) and the Sentencing
Reform Act of 1984.2

The Respondent concludes that since the

Third Circuit Court of Appeals has already concluded that
Petitioner’s sentence was imposed under 21 U.S.C. § 848 “with no
possibility of parole,” he is not entitled to relief.

Gallardo

and Sperling v. Quinlan, 874 F.2d 186,188 (3d Cir. 1989)
Discussion
Title 28, United States Code § 2241, vests the federal
district courts with jurisdiction to grant a writ of habeas
corpus to persons in custody in violation of the Constitution,
laws, or treaties of the United States.

28 U.S.C. § 2241(c)(3).

Habeas corpus review under § 2241 “allows a federal prisoner to
challenge the ‘execution’ of his sentence.”

2

Woodall v. Federal

In 1984 Congress passed the Sentencing Reform Act (SRA)
which “replaced the federal system of indeterminate sentencing and
parole with a system of determinate sentencing and no parole.”
Gallardo, 874 F. 2d at 187. The effective date of the SRA was
extended to offenses committed after November 1, 1987.
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Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005).

Review is

available “where the deprivation of rights is such that it
necessarily impacts the fact or length of detention.”

Leamer v.

Fauver, 288 F.3d 532, 540 (3d Cir. 2002).
With respect to actions taken by the Parole Commission, the
Court of Appeals for the Third Circuit has routinely recognized
that a federal court's review of a decision issued by the Parole
Commission is limited to an "abuse of discretion" standard.
E.g., United States v. Friedland, 83 F.3d 1531, 1542 (3d Cir.
1996); Bridge v. United States Parole Comm'n, 981 F.2d 97, 105
(3d Cir. 1992).

A federal district court needs only to consider

whether the record provides a rational basis for the Parole
Commission’s ruling.
Cir. 1998).

Gambino v. Morris, 134 F.3d 156, 160 (3d

It must ensure that the Parole Commission has

followed appropriate criteria rational and consistent with its
enabling status and that its “decisions are neither arbitrary
and capricious nor based on impermissible considerations.”

Id.

(citation omitted).
Sperling seeks relief under 18 U.S.C. § 4206(d)which
provides that a person who has not been previously released on
parole shall be released on parole after serving two thirds of
each consecutive term or terms or after serving thirty years of
each consecutive term or terms of more than forty-five years
including any life term.

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Petitioner was sentenced to a term of life imprisonment
without parole on September 12, 1973.

See Doc. 9-1, Exhibit 1.

His sentence was imposed pursuant to the kingpin provision of 21
U.S.C. § 848(c) and as such Sperling was not eligible for
parole. See Graewe v. O’Brien, 2013 WL 676273 (N.D. W.Va. Feb.
25, 2013)(individual found guilty under § 848 prior to to
November 1, 1987 committed a non-parolable offense)
§ 4206(d) was part of the Parole Commission and
reorganization Act of 1976.

Thus, at the time of Sperling’s

sentencing in 1973, § 4206 had not yet been enacted.

The

Petitioner has also not shown that § 4206(d) had retroactive
effect.

Accordingly, Petitioner’s vague assertion that §

4206(d) was in effect at the time of his sentencing lacks merit.
Based upon undisputed regulations submitted by the
Respondent (Doc. 9-1, Exhibit 3) there was no provision for
mandatory parole in place at the time the Petitioner was
sentenced.

Furthermore, Congress clearly intended to make

parole unavailable to persons convicted under § 848.

See United

States v. Valenzuela, 646 F.2d 352, 354 (9th Cir. 1980)
The Petitioner’s sentence under § 848(c) was clearly one
for which release on parole was not allowed.

See Pray v. Holt,

338 Fed. Appx. 167, 168 (3d Cir. 2009)(parole is not available
for a life sentence under § 848).

Since Sperling’s sentence was

imposed without parole, he is statutorily ineligible for

7

mandatory parole under § 4206(d).

See Gallardo, 874 F.2d at

187-88(Sperling committed a non-parolable offense); Graewe, 2013
WL 676273 * 2-3; United States v. Bello, 767 F.2d 1065, 1066-67
(4th cir. 1985).

Accordingly, Petitioner’s request for federal

habeas corpus relief will be denied.

An appropriate Order will

enter.

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED: JANUARY 28, 2015

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