his subsequent revocation hearing LaChance acknowledged that he had been using cocaine for fifteen years. (Kelly Decl. P 11). In papers on this application, LaChance acknowledges that during the 1970s and while on parole he used cocaine "occasionally." (Reply Affidavit of Douglas LaChance sworn to June 3, 1993 P 1).
On January 7, 1993, the Commission adopted a hearing officer's recommendations to revoke LaChance's parole, forfeit the entire time he had spent on parole, and thus extend his release date from February 18, 1993 to the year 2000. The Commission's action imposes eight months of imprisonment to be followed by parole supervision with a special drug aftercare condition.
On February 18, 1993, the expiration of his original maximum term, this court directed that LaChance be released on bail pending the outcome of his administrative appeal. LaChance v. Barr, 812 F. Supp. 436 (S.D.N.Y. 1993). On March 3, 1993, the Commission affirmed its prior decision. This application for a writ of habeas corpus, more fully briefed and factually supported than the application for bail, followed.
The Commission charges LaChance with his positive test for cocaine, refusal to participate in a drug program, failure to appear at a hearing/interview, and leaving the district without permission (all of which occurred in 1992) and the 1988 conviction described above. Of those violations, only the 1988 conviction could serve as a basis for forfeiting LaChance's whole time of almost seven years on parole, see 18 U.S.C. § 4210(b)(2). LaChance asserts that this forfeiture violates due process.
LaChance argues that the Commission has no power to extend its jurisdiction over him past his original maximum term on the basis of the 1988 conviction. He contends that under 18 U.S.C. § 4210(b)
the Commission has only the power to determine whether an unexpired parole term should run concurrently or consecutively with the sentence imposed for a new offense. He argues that because he was not imprisoned for his 1988 conviction, the Commission may not hold him past his maximum term. He claims that the regulation codified in 28 C.F.R. § 2.52(c)(2),
which does not require an "actual term of confinement or imprisonment" before a conviction may be used to forfeit parole time, is inconsistent with the statute.
In order for the Commission's interpretation of the statute to be valid, "it need only be shown that it is 'sufficiently reasonable.'" Weeks v. Quinlan, 838 F.2d 41, 44 (2d Cir. 1988) (citations omitted). The interpretation does not have to be "the only reasonable one, or even the one the court would have adopted if the question had initially arisen in a judicial proceeding." Id. In United States ex rel. Del Genio v. United States Bureau of Prisons, 644 F.2d 585, 588 (7th Cir. 1980), cert. denied, 449 U.S. 1084, 101 S. Ct. 870, 66 L. Ed. 2d 808 (1981), the Court of Appeals for the Seventh Circuit found that § 4210(b) was ambiguous, and that the Commission's interpretation was consistent with the intent of Congress. There are strong indications, in fact, that the drafters intended to treat parole violations punishable by imprisonment, detention or incarceration in any penal facility
as grounds for the forfeiture of street time, regardless of whether such a sentence is actually imposed. According to the Conference Report:
The phrase 'punishable by a term of imprisonment, detention or incarceration in a penal facility' is intended by the Conferees to mean any term of confinement which may be levied upon adjudication of guilt or delinquency and does not include detention prior to adjudication. For example, a person convicted of any offense punishable by even one day of imprisonment would not automatically receive credit toward service of his sentence, even if no sentence of imprisonment was imposed.
H.R.Rep. No. 94-838, 94th Cong., 2d Sess. 31-32 (1976) reprinted in U.S. Code Cong. & Admin. News, pp. 335, 364.
Because the Commission's interpretation is a reasonable one consistent with the intent of Congress, LaChance's first ground for relief is denied.
LaChance also argues that even if the Commission has the statutory authority to extend his original maximum term by forfeiting his whole parole time, it lost that authority by waiting too long to act and by misleading him.
Revocation of parole after unreasonable delay or under circumstances inherently misleading to the parolee violates due process. See United States v. Hamilton, 708 F.2d 1412, 1415 (9th Cir. 1983). However, in the absence of "unfair tactics" by the Commission, and as long as the delay does not prejudice a parolee's ability to challenge the earlier violations, it is appropriate for the Commission to assess the "continuing nature" of a parolee's violations before initiating a revocation proceeding. White v. United States Parole Commission, 856 F.2d 59, 61 (8th Cir. 1988). See Cortinas v. United States Parole Commission, 938 F.2d 43, 45 (5th Cir. 1991) (parolee's four-year old conviction, previously used to alter the conditions of his parole, could be used as a ground for revocation in light of subsequent violations); United States v. Rice, 671 F.2d 455, 458 (11th Cir. 1982) (two and a half-year delay). See also United States v. Shampang, 987 F.2d 1439, 1443 (9th Cir. 1993) (citations omitted):
Absent prejudice, therefore, a delay motivated by a 'desire to utilize the rehabilitation process rather than abandon it' does not violate due process when the earlier violations are charged along with more recent ones because collectively they show 'that the further attempt at rehabilitation had not succeeded.'