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BOOZE v. THOMAS

July 18, 1980

William H. BOOZE, IV, Petitioner,
v.
Warden Dale THOMAS, Respondent



The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

Application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 is granted on the conditions stated in this Memorandum and Order.

 FACTS

 In 1973, petitioner was convicted of interstate transportation of forged securities, 18 U.S.C. § 2314, on separate indictments in the United States District Court for the Eastern District of Oklahoma, and in the United States District Court for the Western District of Oklahoma. On April 5, 1973, he was sentenced in the Western District of Oklahoma as a regular adult offender to four years' imprisonment. Then, on August 1, 1973, he was sentenced in the Eastern District of Oklahoma also as a regular adult offender to an additional two-year term to run consecutively to the four-year term imposed in the Western District. *fn1" Petitioner began serving his sentence on April 18, 1974. Thus, the full term of the combined sentences was due to expire on April 17, 1980. *fn2"

 On January 12, 1979, petitioner was discharged from federal custody pursuant to the mandatory release provisions of 18 U.S.C. § 4163. Pursuant to 18 U.S.C. § 4164, therefore, his release was deemed to be "as if . . . on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days," which means in petitioner's case, until October 20, 1979. *fn3"

 On April 2, 1979, the United States Parole Commission (the "Commission") issued a mandatory release violator warrant charging the petitioner with theft of services, theft, and failure to submit a monthly supervision report as required by the terms of his release. *fn4" On June 1, 1979, the Commission supplemented this warrant by adding the following charges: failure to work regularly; assault with bodily injury and reckless conduct; unauthorized possession of a firearm in May 1979 in Bowie County, Texas; and failure to report a change in residence. *fn5"

 In the meantime, the petitioner had apparently come to New York for the purpose, he claims, of getting married. Shortly thereafter, he was arrested and charged with criminal possession of a weapon. On June 20, 1979, the Commission lodged the mandatory release violator warrant against him as a detainer with the appropriate state authorities. *fn6" Petitioner then pleaded guilty to the state charge, and was sentenced on August 30, 1979, by the Rockland County Court, to a term of imprisonment of two-to-four years, as a predicate felon. *fn7" The Parole Commission eventually issued a supplement to its April 2, 1979 mandatory release violator warrant to include charges pertaining to petitioner's possession of a weapon in New York, but not until November 8, 1979, *fn8" which was 18 days after the original termination date of his status as a mandatory releasee "as if on parole." Thereafter, the petitioner, who had earlier been notified of the Parole Commission's pending dispositional review of the detainer lodged against him, *fn9" furnished the Commission with information in connection with that review, but waived the assistance of an attorney. *fn10" On December 3, 1979, the Commission informed him that it had decided to leave the detainer on file. *fn11"

 On June 25, 1980, petitioner again appeared before the Rockland County Court, on an application for resentencing. The attorney for the state expressly consented to the resentencing, and withdrew its claim that the petitioner had previously been convicted of a felony. The court then resentenced the petitioner to a one-year term of imprisonment, which it noted the petitioner had already served. *fn12"

 Petitioner was not released outright, however, but rather was turned over to the custody of the United States Marhsal pursuant to the mandatory release violator warrant that had been lodged against him as a detainer. Petitioner then brought on the instant application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241.

 The Court held a hearing on the application on July 17, 1980, in which the petitioner personally participated with the assistance of his privately retained counsel. This Memorandum now constitutes the Court's findings of fact and conclusions of law.

 DISCUSSION

 Petitioner appears to assert three grounds for the relief he seeks. First, he claims that he owes no time on his 1973 federal convictions. Second, he contends that the Rockland County Court in effect vacated his conviction for criminal possession of a weapon on June 25, 1980. Third, he objects in any event to the Commission's using that conviction as a basis for finding a violation of his mandatory release on his federal sentence, because no violator warrant pertaining to it had been filed before the expiration of his release supervision period.

 As to petitioner's first claim, the Commission is authorized by statute to revoke petitioner's release for a violation of any of its conditions. See 18 U.S.C. § 4214(d)(5). Such a revocation could also include a forfeiture of his good time credit and any time spent on conditional release. See, e.g., Lambert v. Warden, 591 F.2d 4, 8 (5th Cir. 1979). Thus, whether petitioner owes any time on his federal sentence depends upon whether the Commission decides that he has violated his release conditions, and whether it decides to revoke his release.

 Petitioner's second claim, to which most of his counsel's time at the hearing was devoted, has little basis in fact. The very transcript of the proceedings in the Rockland County Court, which petitioner himself introduced into evidence, makes it clear that the Court vacated neither his conviction nor his sentence, but merely resentenced him with the state's consent that he not ...


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