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MAGGIO v. MCCLELLAN

October 29, 1993

JOSEPH MAGGIO, Petitioner,
v.
SUPERINTENDENT ROBERT McCLELLAN, Southport Correctional Facility; ROBERT ABRAMS; UNITED STATES PAROLE COMMISSION, Respondent.


GRUBIN


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and parolees extends to the expiration date of the maximum terms for which they were sentenced. 18 U.S.C. § 4210(a) (repealed 1984); *fn3" 28 C.F.R. § 2.35(a) (1993); see Clay v. Henderson, 524 F.2d 921, 922-23 (5th Cir. 1975), cert.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).

 CONCLUSION

 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
 
#83A6942
 
Southport Correctional Facility
 
Box 2000
 
Pine City, New York ...

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