On Appeal from the United States District Court for the Western District of Pennsylvania (ERIE); D.C. Civil No. 80-00133E.
Sloviter, Hutchinson, and Nygaard, Circuit Judges
Appellant Neal Roger McFayden appeals from the order of the district court denying his petition for a writ of habeas corpus, which the court considered as a Motion to Vacate, Correct or Set Aside Sentence relative to the term of special parole.
McFayden was convicted in 1981 in the United States District Court for the Western District of Pennsylvania of two counts of conspiracy and three counts of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). He was sentenced to five eight-year terms of imprisonment on these offenses, all terms of imprisonment to run concurrently. Although a special term of parole was mandatory for convictions under 21 U.S.C. § 841(a)(1), the sentencing judge failed to impose the required three-year term of special parole. After the death of the sentencing judge, the district judge to whom the matter was transferred amended the sentence on December 18, 1984 to include the mandatory three-year special parole term on the three section 841(a) counts, to run concurrently.
On September 15, 1989, McFayden filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the Middle District of Alabama, where he was serving his sentence. In the petition, McFayden asserted that (1) it was the intention of the original sentencing judge to impose a sentence that did not exceed eight years as to any count; (2) he was not given notice that he would be resentenced to the special parole terms; (3) he was not afforded his Sixth Amendment right to counsel for the purpose of the resentencing; and (4) he was not afforded his right to be present at the resentencing. Although he did not expressly request that the court vacate his sentence to the extent it included the special parole terms, it would appear that this is the relief he sought. He contended that his "eight year term of imprisonment was exacted as of July 31, 1988" and that the special parole terms imposed by the district court in 1984 were invalid.
The court construed the petition as filed pursuant to 28 U.S.C. § 2255 and transferred the petition to the United States District Court for the Western District of Pennsylvania. By order entered November 16, 1989, that court denied the petition, which it also treated as filed under section 2255.
McFayden filed a timely notice of appeal. Thereafter, he filed in the district court a motion to correct an illegal sentence under Federal Rule of Criminal Procedure 35. The district court appointed the federal public defender to represent McFayden and set a resentencing hearing for April 20, 1990, which was rescheduled for May 31, 1990. In light of the possibility of resentencing which might have mooted the issue on appeal, this court held the matter c.a.v.*fn1 However, in lieu of resentencing, the district court entered an order on May 30, 1990 denying McFayden's Rule 35 motion on the ground that it was not filed within the time period set by former Rule 35(a).*fn2
Inasmuch as there has been no resentencing, this court must now turn to the issue presented by the appeal.
McFayden's principal contention is that the amended sentence adding the special parole term was imposed in an illegal manner because he was not present as required by Rule 43(a) of ...