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STRONG v. UNITED STATES PAROLE COMM'N

January 16, 1997

DAVID STRONG, Petitioner, against UNITED STATES PAROLE COMMISSION, Respondent.


The opinion of the court was delivered by: SCHEINDLIN

 SHIRA A. SCHEINDLIN, U.S.D.J.:

 Petitioner David Strong asks this Court to issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241, seeking relief from the special parole term imposed upon him by Respondent the United States Parole Commission ("Parole Commission" or "Commission"). Petitioner challenges the Commission's statutory authority to revoke his initial term of special parole and to reimprison him after he tested positive for cocaine use. He also challenges both the Parole Commission's continuing jurisdiction over him following revocation of his initial special parole term, and the Commission's statutory authority to reparole him to special parole after his subsequent release from imprisonment. While the Parole Commission had the authority to revoke Petitioner's special parole and reimprison him, and to retain jurisdiction over him after doing so, it lacked the statutory authority to reparole Petitioner to special parole rather than traditional parole. The petition for a writ of habeas corpus is therefore granted.

 I. FACTUAL BACKGROUND

 Petitioner was sentenced on September 7, 1982 to a twelve-year prison term and a five-year special parole term by the United States District Court for the Southern District of New York for conspiracy to violate federal narcotics statutes, distribution and possession of heroin, conspiracy to violate federal firearms statutes, and unlawful transfer of firearms. See Certificate of Rockne Chickinell ("Chickinell Cert."), Deputy General Counsel of the United States Parole Commission, Exhs. 1 & 2. He was paroled to traditional parole from his twelve-year prison term on November 14, 1986. Chickinell Cert., Exh. 3.

 Suffice it to say for the purposes of this petition that after his parole from his prison term in November 1986, Petitioner was repeatedly arrested for parole violations (particularly the use of illegal drugs), was given multiple revocation hearings and was reparoled more than once prior to the end of his twelve year prison term. See id., Exhs. 4-9. He was finally released as a mandatory releasee under the supervision of the Parole Commission on September 13, 1993, id., Exh. 10, and was scheduled to commence his five-year special parole term on February 12, 1994. During the mandatory release period (between September 1993 and February 1994), the Commission received reports of continued cocaine use by Petitioner in October and November 1993. Id., Exh. 11. Although the Commission responded with a letter of reprimand on December 13, 1993, Petitioner was not remanded to prison, and began to serve his special parole term as scheduled on February 12, 1994.

 On April 8, 1994, Probation Officer Charles T. Herman reported to the Commission that Petitioner was in violation of the terms of his special parole, as Petitioner had tested positive for the use of cocaine, and had failed both to participate in a residential drug treatment program, and to report to the probation office as directed. Id., Exh. 12. The Commission issued a violator warrant for Petitioner on April 18, 1994, and he was subsequently arrested on May 6, 1994. Id., Exhs. 13 & 14. He was given a revocation hearing on August 2, 1994. Id., Exh. 15. On August 31, 1994, the Commission revoked the special parole term, denied Petitioner credit for time spent on special parole, and continued him to a presumptive parole to begin on January 6, 1996, after the service of twenty months in prison. Petitioner here challenges the Parole Commission's authority to take these actions.

 The presumptive date was later extended until February 23, 1996 for release planning purposes. Id., Exh. 17. Petitioner was reparoled to special parole on February 23, 1996, to be supervised in the Southern District of New York until May 5, 1999. Id., Exh. 18. Petitioner also challenges this reparole to special parole. On April 2, 1996, the probation office reported to the Commission that Petitioner had failed to report for drug testing on March 28, 1996 and requested that the Commission issue a letter of reprimand, id., Exh. 19, which the Commission did on April 12, 1996. Id., Exh. 20. Shortly thereafter, on April 25, 1996, the probation office reported that Petitioner had tested positive for cocaine on April 9, 1996. Id., Exh. 21. The probation office stated that Petitioner had admitted himself into a long term treatment facility and that if he left the facility early, it would request a violator warrant for the him. Petitioner is not imprisoned at this time, and remains on special parole. *fn1"

 II. STATUTORY FRAMEWORK

 The special parole statute, 21 U.S.C. § 841(c), was adopted as part of a comprehensive drug control plan embodied in the Controlled Substances Act of 1970 (the "Act"). The Act provided that certain drug offenses were subject to mandatory terms of special parole. 21 U.S.C. § 841(b). Section 841(c) provides:

 
Special parole term
 
A special parole term imposed under this section . . . may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section . . . shall be in addition to, and not in lieu of, any other parole provided for by law. *fn2"

 The differences between special parole and traditional parole have been described as follows:


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