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TIPPINS v. LUTHER

October 14, 1994

BYRON D. TIPPINS, Petitioner
v.
DENNIS LUTHER, WARDEN, FCI McKEAN and UNITED STATES PAROLE COMMISSION, Respondents



The opinion of the court was delivered by: ILA JEANNE SENSENICH

 I. RECOMMENDATION

 It is recommended that the petition for writ of habeas corpus be denied.

 II. REPORT

 Petitioner Byron D. Tippins (petitioner), a prisoner at the Federal Correctional Institution in McKean, Pennsylvania, brings this habeas corpus action pursuant to 28 U.S.C. ยง 2241, challenging an August 28, 1991 decision of the United States Parole Commission (Commission) rescinding his parole.

 Procedural History

 Petitioner was paroled on April 20, 1987. He was to remain under parole supervision until February 20, 1999. He was originally convicted on May 19, 1981 in the U.S. District Court for the Southern District of Georgia of the offense of bank robbery. He received an eighteen-year term of imprisonment.

 By letter, dated September 26, 1988, petitioner's probation officer informed the Commission that petitioner had violated the conditions of his release. Specifically, petitioner's probation officer informed the Commission that petitioner had changed his residence without notifying the probation office, that he failed to submit monthly supervision reports, and that he was arrested on two separate occasions. In regard to the first arrest, he was found guilty of use of a motor vehicle without authority. In regard to the second arrest, petitioner was charged with possession of heroin with intent to distribute. Petitioner's probation officer also reported that petitioner had tested positive for cocaine. The probation officer recommended that a warrant be issued for petitioner's arrest.

 On October 6, 1988, the Commission issued a warrant for petitioner's arrest. Petitioner was arrested on November 1, 1988. By letter, dated November 15, 1988, the Commission informed petitioner that probable cause had been found to believe that he violated the conditions of his parole. Petitioner received a revocation hearing on December 8, 1988. His parole was revoked on January 12, 1989. He was not given credit for any of the time he spent on parole and he was continued to a presumptive parole, June 4, 1991, after the service of 34 months. He appealed the decision to the Commission's National Appeals Board. The National Appeals Board affirmed the Commission's decision on April 25, 1989. On January 10, 1991, the Commission informed petitioner that there was no change in his case and that his presumptive parole date of June 4, 1991 was an effective parole date.

 On March 8, 1991, petitioner escaped from a halfway house. After his return to federal custody, he received a hearing before a disciplinary hearing officer on August 8, 1991. He had received notice of this hearing on July 25 or 26, 1991. He stated that his reason for escaping was a urine test taken on February 20, 1991, in which he tested positive for cocaine. The recommendation was that petitioner's parole be rescinded.

 The Commission was not aware of petitioner's escape status or his positive urine test until his rescission hearing on August 28, 1991. There was no order retarding his June 4, 1991 parole date, but there had also been no delivery of a parole certificate to him. In the hearing summary, the hearing examiners noted that either the Bureau of Prisons failed to notify the Commission or the Commission took no action due to the change in location of the Commission's Northeast Regional Office from Philadelphia, Pennsylvania, to the Washington, D.C. area. The hearing panel offered petitioner an opportunity to continue his hearing for two months so that the appropriate notice of action could be issued and he could prepare for the hearing based on the two misconducts. He chose to proceed with his hearing.

 The hearing panel reviewed the charged with petitioner. He admitted to both charges of use of narcotics and escape from the halfway house. However, he stated that he had returned to federal custody on March 15, 1991, and not on March 27, 1991, as reflected in the records of the Bureau of Prisons. The panel chose to rely on the information contained in the Bureau records rather than petitioner's claim. The panel recommended that his case be reopened and that his parole effective date of June 4, 1991 be rescinded. The hearing panel recommended that petitioner be continued to a presumptive parole of June 21, 1993, after service of an additional 24 months plus 18 days in escape status. The Commission concurred with the hearing panel's recommendation and issued a Notice of Action to petitioner on October 9, 1991. Petitioner appealed the decision to the National Appeals Board. The National Appeals Board affirmed the Commission's decision on February 10, 1992.

 On August 28, 1992, the Commission reopened petitioner's case and granted parole effective November 10, 1992, after recalculating the amount of time he was in escape status. That recalculation resulted in a change in the applicable escape guidelines.

 On May 22, 1992, petitioner filed the instant petition for a writ of habeas corpus. In this petition, petitioner raises the following issues:

 
(1) That the Parole Commission failed to violate me even as a I went to the parole hearing in August.
 
(2) That I was not given credit for time served while in Middleton Correctional Facility.
 
(3) That they Failed to conduct the pliminary [sic] hearing within the appropiate [sic] time period, it was 100 days before I had my initial hearing.
 
(4) That the Parole Commission failed to conduct a revocation/recession [sic] hearing within the statutory time period, it was over 165 days before I was given a ...

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