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WILLIAMS v. UNITED STATES PAROLE COMMN.

July 26, 1994

CHRISTOPHER RUFUS WILLIAMS, Plaintiff,
v.
UNITED STATES PAROLE COMMISSION, Defendant.



The opinion of the court was delivered by: STANLEY SPORKIN

 Plaintiff Christopher Williams, a federal prisoner, brings this petition for a writ of habeas corpus seeking relief from an allegedly illegal sentence. Defendant, United States Parole Commission ("Commission"), maintains that because the plaintiff was sentenced lawfully, he is not entitled to relief. For the reasons set forth below, plaintiff's petition is granted.

 BACKGROUND

 The facts in this case bear detailed recitation. Plaintiff was sentenced on April 30, 1976 by the United States District Court for the Eastern District of New York to a five year term of imprisonment to be followed by a five year term of special parole. The plaintiff's appeal of his sentence was denied, and he began serving his term of imprisonment on April 29, 1979. He was released on April 7, 1982 to serve the remainder of his prison term on ordinary parole.

 On April 4, 1984, the plaintiff commenced his five year term of special parole. Almost two years later, the Commission issued a warrant for the plaintiff's arrest, charging him with technical violations of the conditions of his special parole, including failure to report a change of residence. *fn1" The plaintiff was arrested on December 18, 1988 and incarcerated pending a revocation hearing. At the June 7, 1989 revocation hearing, the Commission revoked his special parole and denied the plaintiff credit for the approximately 31 months he spent on special parole. The Commission sentenced the plaintiff to a term of incarceration and a term of special parole. The plaintiff appealed the sentence.

 Once again, however, the plaintiff ran afoul of the terms of his release. On May 20, 1993, seven months before the expiration of the special parole term, the Commission issued a warrant charging the plaintiff with violations of his parole; e.g., failure to submit supervision reports, use of dangerous drugs, and violation of special drug aftercare conditions. At his September 27, 1993 revocation hearing, the Commission determined that he had violated the conditions of his special parole. The Commission revoked the plaintiff's special parole and denied him credit for the approximately 38 months spent on special parole. For his transgressions, the plaintiff was sentenced to 16 months in prison. He was then released back onto special parole. The Commission's decision was affirmed on appeal. The plaintiff presently is eligible for parole on September 18, 1994, at which time he will have 29 months left to serve on special parole.

 DISCUSSION

 The statutory authority for revoking special parole is found in 21 U.S.C. § 841(c) (1994). The section in its entirety provides as follows:

 
A special parole term imposed under this section or section 859, 860, or 861 of this title may be revoked if its terms and conditions are violated. In such circumstances the 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. A special parole term provided for in this section or section 859, 860, or 861 of this title shall be in addition to, and not in lieu of, any other parole provided for by law.

 21 U.S.C. § 841 (c) (1994). Although this section was repealed by the Comprehensive Crime Control Act of 1984, the criminal conduct for which plaintiff was sentenced in 1976 occurred before 1984, so plaintiff remains subject to its terms. See United States v. DeJohnette, 752 F. Supp. 849 (N.D. Ill. 1991).

 The government presents two arguments in support of its position that the Commission acted appropriately. First, the government claims that in 1989 and 1993 the Commission properly denied plaintiff credit for the time he spent out of prison on special parole ("street time"). Its position is that under the terms of the statute, violators of the terms of special parole must forfeit street time. Munguia v. U.S. Parole Comm'n, 871 F.2d 517 (5th Cir. 1989).

 Second, the government claims, that with respect to the original 1976 sentence, plaintiff was properly denied a 180 day reduction in prison time. The argument is based on 18 U.S.C. § 4164 (1994) which provides that

 
A prisoner having served his term or terms less good-time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he ...

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