The opinion of the court was delivered by: LASKER
Norberto Caballery petitions for a writ of habeas corpus under 28 U.S.C. § 2255 on the ground that the application of Parole Commission Regulation § 2.10(c), 28 C.F.R. § 210(c), to the computation of his sentence violates the ex post facto clause. The petition is denied.
On December 30, 1974, Caballery entered a plea of guilty to a charge of having embezzled bank funds in violation of 18 U.S.C. § 656. He was sentenced on March 17, 1975 under the Youth Corrections Act to a maximum term of six years imprisonment. 18 U.S.C. § 5017(c). On May 5, 1976, Caballery was released from imprisonment and placed under parole supervision. In October, 1979, after approximately three and one-half years of parole supervision, he allegedly ceased reporting to his supervising parole officer, and on February 26, 1980, the Parole Commission issued a warrant for his arrest as a parole violator, charging Caballery inter alia with absconding from parole supervision. Caballery voluntarily surrendered on February 25, 1981 and is now held in custody pending a parole violation hearing scheduled for May 19, 1981.
The Youth Corrections Act provides that:
"A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction." 18 U.S.C. § 5017(c)
In September, 1977, the Parole Commission adopted an interpretative regulation which provides in relevant part that:
"Service of the sentence of a committed youth offender or a person committed under the Narcotic Addict Rehabilitation Act commences to run from the date of conviction and is interrupted ... when such prisoner or parolee ... (3) has absconded from parole supervision...." 28 C.F.R. § 2.10(c)
Caballery contends that under the Youth Corrections Act, 18 U.S.C. § 5017(c), he was required to be "discharged unconditionally on or before six years from the date of his conviction" so that he completed his sentence on March 17, 1981, six years from his sentence date, despite the fact that for a portion of that time he allegedly absconded from parole supervision. According to Caballery, the interpretative regulation adopted in 1977, 28 C.F.R. § 2.10(c) (3), which would toll the time during which he had absconded from parole supervision, cannot constitutionally be applied to him because it was adopted after his 1975 sentence. Caballery emphasizes that, at the time of his sentence in 1975, there were no regulations in effect which provided for any tolling of sentence during the time when a youth offender had failed to fulfill his parole supervision obligations. Therefore, Caballery argues, application of § 2.10(c)(3) to him serves to extend the length of his sentence beyond the maximum term permitted when the sentence was imposed and violates the ex post facto clause.
The government responds that § 2.10(c)(3) merely codified prior case law which provided for tolling of criminal sentences generally for periods when the sentence was not actually being served, such as during escape, while the defendant is on bail pending appeal, or while the defendant is confined for civil contempt. The government contends that the fact that several courts had applied these principles specifically to the tolling of sentences under the Youth Corrections Act establishes that § 2.10(c)(3) did not serve to extend the length of Caballery's sentence beyond the term permitted in 1975, and therefore its application to Caballery does not violate the ex post facto clause. Moreover, the government argues that even if the Parole Commission's practice prior to the adoption of § 2.10(c)(3) was not to toll sentences for periods during which parolees had absconded from parole supervision, such a practice was erroneous and thus any change in practice does not violate the ex post facto clause.
In response to the government's contention that § 2.10(c)(3) merely codified pre-existing case law, Caballery notes that the first regulation concerning tolling of sentences under the Youth Corrections Act adopted by the Parole Commission in 1976 provided for tolling only when the youth offender "is on bail pending appeal or is in escape status," 41 Fed.Reg. 19328 (May 12, 1976), and did not refer to periods when the youth offender had absconded from parole supervision. It was not until December, 1976 that the Parole Commission proposed an amendment to § 2.10 to provide for tolling when a youth offender had "absconded from his or her district of parole supervision," 41 Fed.Reg. 52889-52890, and the commentary accompanying the proposed amendment was framed in terms of a change in future practice. This proposed amendment was adopted on March 2, 1977 and did not go into effect until August 1, 1977. 42 Fed.Reg. 12043-12044. Caballery emphasizes that it was not until August 17, 1977 that the Parole Commission proposed an amendment to § 2.10 relevant to Caballery's situation by providing for tolling with respect to youth offenders who absconded from their parole supervision without leaving their district of supervision. The accompanying commentary stated that "this proposal would enlarge the definition of "absconding' in the existing rule ...," 42 Fed.Reg. 41436-41437, thus establishing, Caballery argues, that prior to September 30, 1977 when this latest proposed amendment was adopted, the Parole Commission did not have any rule for tolling sentences for youth offenders in Caballery's situation and that these new regulations effected changes in practice rather than merely codifying past practice.
In response to the government's contention that any prior practice of not tolling sentences for youth offenders who had absconded from parole supervision would have been erroneous and therefore not susceptible of ex post facto protection, Caballery argues that such prior practice cannot be dismissed as erroneous because there has been no definitive judicial pronouncement to that effect. In these circumstances, Caballery submits, he is entitled to the protection of the sentence computation practice in effect at the time he was sentenced.
The ex post facto clause "forbids the Congress and the States from enacting any law "which imposes a punishment for an act which is not punishable at the time it was committed, or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326, 18 L. Ed. 356 (1867). Thus a change in law violates the ex post facto clause "if it is both retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, supra -- - U.S. at -- , 101 S. Ct. at 965.
Here the "law in effect on the date of the offense" provided that a youth offender "shall be discharged unconditionally on or before six years from the date of his conviction." 18 U.S.C. § 5017(c). The threshold issue raised by Caballery's petition is whether this language in the Youth Corrections Act mandated his release on March 17, 1981 (six years from the date of his sentence) regardless of ...