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Walberg v. United States

June 5, 1985

BARBARA WALBERG, PLAINTIFF-APPELLANT,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE



Appeal from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, dismissing petition pursuant to 28 U.S.C. § 2255 for vacation of so much of criminal sentence as imposed special parole term in excess of term of imprisonment. Affirmed.

Mansfield, Kearse, and Pratt, Circuit Judges.

Author: Kearse

KEARSE, Circuit Judge:

Petitioner pro se Barbara Walberg appeals from a judgment of the United States District Court for the Eastern District of New York, Jacob Mishler, Judge, denying her petition pursuant to 28 U.S.C. § 2255 (1982) for an order vacating so much of her criminal sentence as imposed a special parole term in excess of her term of imprisonment. Walberg contended that such special parole terms are not authorized by the Comprehensive Drug Abuse Prevention and Control Act of 1970 (the "Act"), 21 U.S.C. § 801, et seq. (1982), and violate the Due Process Clause of the Constitution. On appeal, she contends that the district court (1) did not consider the materials submitted in support of her petition and (2) erred in its conclusions. We disagree and affirm the order of the district court.

I. BACKGROUND

In 1981, after a jury trial before Judge Mishler, Walberg was convicted of conspiracy to import heroin into the United States, in violation of 21 U.S.C. § 963 (1982); of unlawful importation of heroin into the United States, in violation of 21 U.S.C. §§ 952 and 960; and of unlawful possession of heroin with intent to distribute it, in violation of 21 U.S.C. § 841. On September 17, 1981, she was sentenced to concurrent two-year terms of imprisonment on each count and eight years of special parole on the substantive counts. Her conviction was affirmed by this Court sub nom. United States v. Beltempo, 675 F.2d 472, cert. denied, 457 U.S. 1135, 73 L. Ed. 2d 1353, 102 S. Ct. 2963 (1982). She apparently began serving her prison term in 1983.

In May 1984, while serving her prison terms, Walberg filed the present petition for habeas corpus, contending that her special parole term was unlawful insofar as it was to exceed the period of her incarceration. She relied on certain documents submitted in connection with legislative hearings prior to the passage of the Act and on the decision in United States v. Tebha, 578 F. Supp. 1398 (N.D. Cal. 1984), appeal docketed, No. 84-1126 (9th Cir. Feb. 9, 1984), declaring the special parole requirement of the Act unconstitutional. The government submitted a memorandum of law in opposition to the petition.

Thereafter, Walberg was released from prison and relying on the positions set forth in her habeas petition, moved for a preliminary injunction preventing the United States Parole Commission from requiring her to make any reports in connection with her special parole. The government opposed this motion by letter, stating that it would rely on the memorandum submitted in opposition to the habeas petition. The government thereafter sent Judge Mishler another letter to advise the court of the recent decision of another judge in the Eastern District in United States v. Davi, 588 F. Supp. 91 (E.D.N.Y. 1984), which rejected the reasoning in Tebha and found the special parole provisions constitutional. Walberg wrote Judge Mishler on August 28, 1984 ("August Letter"), disputing the applicability of Davi to her case.

In a Memorandum of Decision and Order dated October 9, 1984 ("Memorandum"), Judge Mishler stated that "petitioner's letter dated August 28, 1984 is treated as an application pursuant to 28 U.S.C. § 2255 to vacate the special parole term imposed on September 17, 1981," and he dismissed the petition, expressly rejecting the reasoning in Tebha and choosing to follow the decision in Davi. This appeal followed.

II. DISCUSSION

On appeal, Walberg contends that the district court disregarded all parts of her § 2255 application except the August Letter, and thereby ignored the issues raised by her May 1984 petition. She contends that either the matter should be remanded to the district court for further consideration or this Court should consider the entire record below, and that either course will lead to the conclusions (1) that Congress did not intend that special parole terms exceed a defendant's period of imprisonment and (2) that the imposition of a special parole term in excess of imprisonment is unconstitutional. While the scope of the district court's examination of the materials presented by Walberg is not entirely clear, our own review of those materials leads us to conclude that the court did not err in dismissing the petition.

The extent to which the district court delved into the legislative history presented by Walberg in May 1984 in support of her § 2255 petition is not apparent. The court's brief Memorandum stated that the court was treating her August Letter as a § 2255 application, and it did not mention her original May 1984 petition. On the other hand, the court's decision bore the docket number assigned to that original petition, and it addressed specifically one of Walberg's central contentions, i.e., the Tebha holding that the special parole term was unconstitutional. On the whole, we cannot say that the district court failed to recognize that Walberg's petition consisted of more than just her August Letter and to give the entire matter due consideration.

In any event, our review of the record below persuades us that Walberg's challenges to the interpretation and constitutionality of the ...


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