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BUTLER v. UNITED STATES PAROLE COMMN.

February 3, 1983

CARL BUTLER, Petitioner
v.
UNITED STATES PAROLE COMMISSION, Respondent



The opinion of the court was delivered by: NEALON

 The petitioner filed the instant petition for a writ of habeas corpus on July 22, 1982, setting forth nine different grounds to support his claim for relief. The petitioner challenges various aspects of the decision by the United States Parole Commission to revoke his parole and to continue him to a presumptive parole date after service of 36 months in custody. For the reasons set forth below, the court will deny the petition without conducting an evidentiary hearing.

 FACTUAL BACKGROUND

 On October 6, 1972, the petitioner was given a ten-year sentence following his conviction for burglary in the District of Columbia Superior Court. This sentence was imposed under the aegis of the Narcotic Addict Rehabilitation Act, 18 U.S.C. § 4253, which provides that an addict convicted of a crime may be committed to the custody of the Attorney General for treatment of his drug addiction.

 In June 1975, the petitioner was released on parole. Less than four months later, however, a parole violation warrant was issued against him. He was taken into custody in December 1975, and after a hearing on February 20, 1976, his parole was revoked.

 It appears that during the brief period he had been on parole, the petitioner committed a variety of offenses. In May 1976, he was sentenced to a nine-year term after a conviction in the District of Columbia Superior Court for petit and grand larceny. He subsequently received two one-year sentences from the United States District Court for the Eastern District of Virginia after being convicted of two counts of fraud. All of these sentences were to run consecutively to the petitioner's parole violation term. On November 29, 1979, the Bureau of Prisons properly aggregated these sentences, and concluded that the petitioner was serving a term in excess of seventeen years.

 On September 5, 1980, however, the petitioner was again paroled. In addition to the usual conditions imposed upon parolees, the petitioner was ordered to comply with the condition that he "participate as instructed by [his] U.S. Probation Officer in a program approved by the U.S. Parole Commission for the treatment of narcotic addiction." See Respondent's Exhibit A, attached to Document No. 8A of the Record. In addition, the petitioner notes that he was to be given "Maximum Supervision" during his first six months of parole, see Exhibit A, attached to Petitioner's Memorandum, Document No. 2 of the Record. Although this condition regarding maximum supervision was included in the Commission's Notice of Action dated February 28, 1980, see id., it was not included among the special conditions listed in the actual Certificate of Parole, dated September 5, 1980. See Respondent's Exhibit A, attached to Document No. 8A of the Record.

 Although the petitioner was paroled on September 5, 1980, he was not enrolled in a drug treatment program until November 24, 1980. Pursuant to this program, known as "drug aftercare," the petitioner was to submit to urinalysis testing twice a week with a view toward determining whether he was engaged in illegal drug usage. Notably, the day after he had been enrolled in the program, the petitioner was tested, and it was determined that he already had reverted back to his use of narcotics. After a few more "positive" tests, and after many missed appointments for testing, the petitioner and his drug aftercare advisor agreed that his parole conditions should be modified to force the petitioner to reside in a "halfway house." See Respondent's Exhibit B, attached to Document No. 8A of the Record. On January 22, 1981, the petitioner and his advisor drafted a letter to obtain approval from the Commission for this modification of his release conditions. See Petitioner's Affidavit, Document No. 10 of the Record.

 The petitioner asserts that by this time, he "was getting weaker and losing the battle in the fight against [his] drug usage." See id. He claims that he asked his drug aftercare advisor to contact the Commission's regional office to expedite his placement in the halfway house. Although the petitioner states that "these calls were to no avail," see id., his placement in the halfway house was approved on February 9, 1981, and his parole conditions were modified accordingly.

 The petitioner failed to appear at the halfway house, and his probation officer requested a warrant for his arrest. The probation officer stated:

 
On 2-9-81 the Parole Commission informed me that the proposed modification [of petitioner's parole conditions] had been approved. However, [the petitioner] has not reported to either myself or his Aftercare counselor since 2-2-81. Numerous attempts to contact [the petitioner] have been unsuccessful including those made by [his] mother and girlfriend. I feel it is futile to reserve a bed [in the halfway house] for him any longer and find it necessary to request revocation of [his] parole and that a warrant be issued for his arrest on the . . . violations of release conditions.

 On March 6, 1981, however, the petitioner had been arrested in the District of Columbia for petit larceny. See Petitioner's Affidavit, Document No. 10 of the Record. He also was charged with a violation of the Bail Reform Act because of his failure to appear in court in connection with the petit larceny charge. Id. He pled guilty to both offenses and was sentenced to two consecutive 120-day sentences by the District of Columbia Superior Court. Id.

 On April 27, 1981, the Parole Commission was advised that the United States Marshals had located the petitioner in the District of Columbia jail on April 7, 1981, and that the warrant had been lodged as a detainer against him at that time. See Affidavit of Michael J. Santella, attached to Respondent's Response to Petition, Document No. 8A of the Record. On August 28, 1981, after receiving confirmation of the sentences imposed upon the petitioner by the District of Columbia court, the Commission prepared a supplemental warrant application to include the two convictions as parole violations. Id.

 From the time that he learned of the detainer lodged against him, the petitioner began requesting a revocation hearing as well as a copy of the warrant application, so that he might prepare a defense to the charges. A representative of the Commission advised him by letter dated August 28, 1981 that he would be scheduled for a hearing after he had been placed in a federal institution. See Letter to Petitioner from Michael J. Santella, Respondent's Exhibit G, attached to Document No. 8A of the Record. Copies of the original warrant application and the supplemental application were enclosed with this letter. See Affidavit of Michael J. Santella, attached to Document No. 8A of the Record.

 On September 28, 1981, after the petitioner had been released from the District of Columbia jail, a United States Marshal executed the warrant which had been lodged as a detainer. The petitioner was then placed in the Central Detention Facility in Washington, D.C. to await his designation to a federal prison. See Respondent's Exhibit H, attached to Document No. 8A of the Record. On November 6, 1981, the petitioner was transported to the United States Penitentiary at Lewisburg, Pennsylvania, and his revocation hearing was scheduled to take place at this institution.

 On November 24, 1981, the petitioner mailed a letter to the Commission detailing certain favorable information he wished to be considered at his hearing. See Petitioner's Exhibit G, Document No. 7 of the Record. The Commission responded by advising the petitioner that the information contained in the letter would be considered. However, the Commission's response was dated December 11, 1981 and the revocation hearing had been held on December 7, 1981. See Petitioner's Affidavit, Document No. 10 of the Record. Nevertheless, the petitioner concedes that the hearing examiners had access to this letter, for he has stated that he presented the letter to them at the hearing. Id.

 After the hearing, the petitioner was advised by Notice of Action dated January 5, 1982, that the Commission had decided to revoke his parole, forfeit the time spent on parole toward service of his sentence and to continue him for a presumptive parole after service of thirty-six months. See Respondent's Exhibit K, attached to Document No. 8A of the Record. The petitioner filed regional and national appeals, raising the grounds presented in the instant petition for habeas corpus relief. In both instances, the decision was affirmed, although there was a slight modification of the reasons for the action at the national level. See Exhibits D & E, attached to Petitioner's Memorandum, Document No. 2 of the Record. The petitioner was advised of the outcome of his national appeal by a Notice of Action dated June 14, 1982. He filed the instant petition the following month.

 DISCUSSION

 The petitioner supports his claim to habeas corpus relief by challenging nine acts and/or omissions of the Commission. These alleged errors concern the degree of supervision accorded to the petitioner while on parole, the procedures employed in revoking his parole, and the Commission's use of its guidelines in arriving at the petitioner's new presumptive release date. With respect to the Commission's use of its guidelines, the petitioner alleges a violation of the ex post facto clause of the Constitution. Alternatively, he argues that if there is no ex post facto violation, the Commission abused its discretion and violated his right to due process because of the manner in which the guidelines were applied and the reasoning employed in deciding to exceed the guidelines in his case.

 FAILURE TO SUPERVISE PETITIONER ADEQUATELY WHILE ON PAROLE

 The first ground advanced by the petitioner to support his claim for habeas corpus relief is that the Commission conditioned his parole upon his participation in a drug addiction program, but then delayed placing him in the program until two months after his release. By the time he became exposed to the program, he asserts, he already had reverted back to his use of drugs. Hence, he argues, the delay was "a major contributing factor to [his] failure on parole," and if ...


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