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October 29, 1993

JOSEPH MAGGIO, Petitioner,


The opinion of the court was delivered by: SHARON E. GRUBIN


SHARON E. GRUBIN, United States Magistrate Judge:

 Petitioner, currently a New York State prisoner at the Southport Correctional Facility and proceeding pro se, seeks a writ of habeas corpus challenging a warrant lodged as a detainer against him by the United States Parole Commission on the ground that it lacked jurisdiction over him at the time it was issued. *fn1"

 Petitioner's claim arises from the ten-year sentence he received on February 17, 1969 upon his conviction in the Southern District of New York for sale of narcotics. Petitioner was released on parole in August 1973. Two years later he was convicted in New York State of burglary, and after serving his state sentence he was committed back into federal custody on March 14, 1979. *fn2" According to the "sentence computation record" then prepared by the federal prison system, the expiration date for the maximum term of his federal sentence was February 9, 1983, and the date for his mandatory release (based on his maximum term less good time deductions) was October 22, 1981. Petitioner was again released on parole on July 31, 1979. On August 20, 1982 he was arrested in New York City and charged with robbery, burglary, criminal possession of a firearm and grand larceny. On January 10, 1983 the Parole Commission issued a warrant for his arrest for parole violation with instructions to place the warrant as a detainer in the event he was sentenced. Supplements to the warrant were issued on February 1, 1983, after he was arrested on other state charges on January 14, 1983, and on December 6, 1983, after he was convicted of attempted murder in the first degree and attempted murder in the second degree in New York Supreme Court, Richmond County, and sentenced to consecutive terms of 25 years to life and 12 1/2 to 25 years. See People v. Maggio, 137 A.D.2d 623, 524 N.Y.S.2d 511 (2d Dep't), appeal denied, 71 N.Y.2d 1029, 530 N.Y.S.2d 564 (1988).

 Under the statutes and regulations applicable to offenses committed before November 1, 1987, parole jurisdiction over prisoners and parolees extends to the expiration date of the maximum terms for which they were sentenced. 18 U.S.C. § 4210(a) (repealed 1984); *fn3" 28 C.F.R. § 2.35(a) (1993); see Clay v. Henderson, 524 F.2d 921, 922-23 (5th Cir. 1975), cert. denied, 425 U.S. 995, 48 L. Ed. 2d 820, 96 S. Ct. 2210 (1976). However, when a prisoner who has fully served his maximum term(s) less good-time deductions is mandatorily released pursuant to 18 U.S.C. § 4164 (repealed 1984), he is "deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less [180] days." Thus, a parole violation warrant cannot be issued during the final 180 days of the maximum term of a prisoner who has been mandatorily released pursuant to 18 U.S.C. § 4164. 28 C.F.R. § 2.44(c) (1993); see Russie v. United States Dep't of Justice, 708 F.2d 1445, 1447 (9th Cir. 1983).

 Petitioner does not dispute the dates set forth in his "sentence computation record." He contends, however, that he was released pursuant to 18 U.S.C. § 4164, that his period of parole supervision therefore expired on August 13, 1982, i.e., 180 days prior to the expiration of his maximum term on February 9, 1983, and that the Parole Commission therefore lacked jurisdiction to issue its warrant on January 10, 1983. In making this argument, petitioner appears to have confused his "mandatory parole" in 1973 after serving two-thirds his sentence, see 28 U.S.C. § 2.53(a) (1993) (containing the current "mandatory parole" provisions), with mandatory release pursuant to 18 U.S.C. § 4164. The latter applies only to prisoners who, unlike petitioner, have served their full term(s) less good-time deductions. It is clear that on July 31, 1979 petitioner was not mandatorily released pursuant to 18 U.S.C. § 4164 but was instead paroled well before his mandatory release date of October 22, 1981. The Parole Commission retained jurisdiction over him until February 9, 1983, and his attack on its January 10, 1983 warrant is therefore without merit.


 For the above reasons, I respectfully recommend that your Honor dismiss this petition. *fn4"

 Copies of this report and recommendation have been mailed this date to:


Mr. Joseph Maggio




Southport Correctional Facility


Box 2000


Pine City, New York 14871


Linda A. Riffkin, Esq.


Special Assistant United States Attorney


100 Church Street, 19th Floor


New York, New York 10007

 The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Lawrence M. McKenna, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge McKenna. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of HHS, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).

 Dated: New York, New York

 October 29, 1993

 Respectfully submitted,


 United States Magistrate Judge

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