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Caballery v. United States Parole Commission

decided: March 2, 1982.

NORBERTO CABALLERY, PETITIONER-APPELLANT,
v.
UNITED STATES PAROLE COMMISSION; UNITED STATES PROBATION OFFICE, SOUTHERN DISTRICT OF NEW YORK; AND WARDEN, METROPOLITAN CORRECTIONAL CENTER, RESPONDENTS-APPELLEES.



Appeal from an order of the United States District Court for the Southern District of New York, Lasker, J., denying a petition for a writ of habeas corpus. Affirmed.

Before Newman and Kearse, Circuit Judges, and Daly, District Judge.*fn*

Author: Daly

This is an appeal from a denial of appellant Caballery's petition for a writ of habeas corpus, entered upon an order of the United States District Court for the Southern District of New York (Morris E. Lasker, J.). Caballery's habeas petition was premised on the claim that application of a Parole Commission regulation, promulgated in 1977, to toll his Youth Corrections Act (YCA) sentence, which was imposed in 1975, for the time during which he had absconded from parole was a violation of the ex post facto provision of the Constitution. Judge Lasker held that the 1977 regulation effected no change in the law, and, hence, no ex post facto violation occurred since the YCA, pursuant to which the regulation had been promulgated, could not reasonably be interpreted to preclude such tolling. We agree, and for the reasons set forth below, affirm the denial of the petition.

THE FACTS

On December 30, 1974, Caballery pleaded guilty to a charge of embezzling bank funds in violation of 18 U.S.C. § 656. On March 17, 1975, he was sentenced as a youth offender under the Youth Corrections Act to a term of six years, the maximum permitted by that Act. See 18 U.S.C. § 5017(c). On May 5, 1976, approximately 14 months into his six-year term, Caballery was conditionally released from prison to serve the remainder of his term under parole supervision. He apparently complied adequately with the conditions of his parole for about three and a half years, until October of 1979 when he stopped reporting to his supervising parole officer.

The Parole Commission issued a warrant for Caballery's arrest on February 26, 1980, charging him, inter alia, with absconding from parole supervision. One year later, on February 25, 1981, approximately one month before he had been scheduled to be unconditionally discharged under his original sentence, Caballery voluntarily surrendered to parole authorities. Following a hearing, Caballery's parole was revoked on June 10, 1981. The Parole Commission denied Caballery credit for the 14-month period-from December 27, 1979 through February 24, 1981-during which he had failed to report to his parole supervisor, and a new release date was set for May 15, 1982.

Discussion

The ex post facto clause of the Constitution, Art. I, § 9, cl. 3, "forbids the Congress ... to enact any law "which imposes a punishment for an act which was not punishable at the time it was committed, or imposes additional punishment to that then prescribed.' " Weaver v. Graham, 450 U.S. 24, 28, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981), quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26, 18 L. Ed. 356 (1867). The issue in this case, then, is whether the 1977 Parole Commission regulation, promulgated after appellant had been sentenced, constituted a change in the law which was "both retrospective and more onerous than the law in effect on the date of the offense." Weaver v. Graham, supra, 450 U.S. at 30-31, 101 S. Ct. at 965-966 (footnote omitted).

The Youth Corrections Act (YCA), 18 U.S.C. § 5005, et seq., in effect in 1974 when appellant committed the offense for which he was sentenced in 1975, provided then, as now, 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 1977, the Parole Commission promulgated the interpretive regulation at issue here, which provides in relevant part:

"Service of the sentence of a committed youth offender ... commences to run from the date of conviction and is interrupted only when such prisoner or parolee (1) is on bail pending appeal; (2) is in escape ...


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