Appeal from a judgment of the United States District Court for the Northern District of New York, James T. Foley, Judge, denying habeas corpus petition on the ground that parole violator was properly denied credit for prior "good time" and "street time." Affirmed.
Before: FEINBERG , Chief Judge, OAKES, and KEARSE.
Petitioner William Miller, a federal prisoner twice reincarcerated after parole violations, appeals from a judgment of the United States District Court for the Northern District of New York, James T. Foley, Judge, denying his petition for a writ of habeas corpus which sought his release from prison on the ground that the United States Parole Commission ("Parole Commission" or "Commission") had improperly revoked his "good time" credits earned in prison after 1976 and denied him credit for "street time," i.e., the time he was free on parole. On appeal, he contends principally (1) that the district court erred in concluding that "good time" credits he earned after 1976 pursuant to 18 U.S.C. § 4161 (1982) were not vested and hence were forfeitable upon parole revocation, and (2) that the Commission's failure to give him advance notice that a parole revocation might deprive him of credit for street time violated his right to due process. Finding no merit in either contention, we affirm.
The pertinent events are not in dispute. In 1971, Miller was convicted of federal narcotics violations and sentenced to two concurrent 20-year terms of imprisonment. In April 1978, he was released on parole; he was expected to remain under parole supervision until March 12, 1991.
After April 1978, Miller was arrested several time for alleged parole violations; two of those arrests led to revocations of his parole. In June 1980, Miller's parole was revoked because of conceded parole violations that included, inter alia, leaving his district without permission, disobeying a speeding summons, and failing to submit required reports. No part of the time that Miller spent on parole after the first of these violations was credited toward service of his sentence. When he was reparoled in November 1980 his parole supervision period was extended to July 5, 1992. In January 1983, Miller's parole was again revoked, this time because of his conviction in a Massachusetts state court for larceny in an amount exceeding $100, a felony, and because of his failure to appear for sentencing on that conviction. Once again, no credit was given Miller for the time he had spent on parole. In addition, no "good time" credit was given Miller for the period during which he was incarcerated in 1980 in connection with his first parole revocation. He was given a new presumptive parole date, eventually set at August 1, 1985.
In April 1985, Miller commenced the present habeas corpus proceeding, contending that he was entitled to immediate release on the grounds (1) that the Commission had no authority to deny him good time credit because the Parole Commission and Reorganization Act of 1976 ("1976 Act" or "Act"), Pub. L. No. 94-233, 90 Stat. 219, which, inter alia, repealed 18 U.S.C. §§ 4205, 4207 (1970), had the effect of vesting all of a prisoner's good time credits and forbidding their forfeiture upon a revocation of his parole; and (2) that the Commission could not properly deny him credit for street time because it had not given him notice prior to his second revocation hearing that revocation of parole could result in his loss of such credit.
The district court denied the petition. Adopting the report of the United States Magistrate to whom the petition had been referred, the court found (1) that there was no indication that Congress had intended the 1976 Act to repeal the long-standing rule that a prisoner's good time credits may be forfeited when his parole is revoked, and (2) that since Miller had been notified of the charges against him prior to his second parole revocation hearing and since there was no defense to a denial of street time credit that would not also have been a defense to the parole violation charge itself, Miller was not prejudiced by any failure of the Commission to notify him that a revocation of his parole could result in his loss of credit for street time.
On appeal, Miller renews the contentions he advanced in the district court. We find them to be without merit.
A. Forfeitability of Good Time Credits
Good time credits are awarded to federal prisoners pursuant to 18 U.S.C. § 4161, which provides, in pertinent part, as follows:
Each prisoner convicted of an offense against the United States and confined in a penal or correctional institution for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to ...