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MARKER v. REILLY

United States District Court, E.D. Pennsylvania


April 19, 2004.

George Marker, Plaintiff,
v.
EDWARD F. REILLY, JR., et al., Defendants

The opinion of the court was delivered by: CLIFFORD GREEN, Senior District Judge

MEMORANDUM

Petitioner filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 claiming that he is entitled to relief from the special parole term imposed upon him by Respondent. This Court referred the petition to the Honorable M. Faith Angell, United Stated Magistrate for a Report and Recommendation. After considering the arguments of Petitioner and Respondent, Judge Angell recommended that Petitioner's request for habeas relief be conditionally granted and the matter remanded to the Parole Commission for further proceedings and recalculation of Petitioner's parole, consistent with her opinion. She based her recommendation upon the fact that Fowler v. United States Parole Comm., 94 F.3d 835 (3d. Cir. 1996), is precedential authority binding upon this court, and as such established that the Parole Commission lacked the authority under 21 U.S.C. § 841(c) to reinstate Petitioner's special parole once it was revoked. After careful consideration of the arguments advanced by the parties and the Report and Recommendation of Magistrate Judge Angell, I conclude that Petitioner is entitled to the relief recommended and accordingly I will overrule Respondent's Objections, and will approve and adopt the Report and Recommendation.

Because the facts are not in dispute and the law is thoroughly and correctly analyzed in the Report and Recommendation, I make only the following observation in overruling Respondent's Objections. Respondent recognizes that existing decisions of a Circuit Court are binding precedent upon District Courts unless they are overruled by the Court of Appeals en bane or come into conflict with a subsequent decision to which it owes obedience, such as a decision by the Supreme Court (Respondent's Objection at page 7, 8). It is clear that Johnson v. United States, 529 U.S. 694 (2000), relied upon by Respondent, dealt not with Section 841(c) but with supervised release under 18 U.S.C. § 3583(e)(3). Thus Fowler is not in conflict with Johnson, even though United States v. Malesic, 18 F.3d 205 (3d. Cir. 1994) cited to in the Fowler opinion, was overturned by Johnson. I must follow Fowler as written and not as restated in the light of Johnson as Respondent urges. Indeed, under the internal operating procedure of the United States Court of Appeals for the Third Circuit, only the Third Circuit en banc may overrule or reverse a prior precedent. Accordingly, I will enter an Order adopting and approving the Report and Recommendation of the Magistrate Judge.

  An appropriate Order follows.

  ORDER

  AND NOW, this ___ day of April 2004, upon consideration of the Report and Recommendation of United States Magistrate Judge M. Faith Angell, Respondent's Objections thereto, and the Memoranda filed by the parties, IT IS HEREBY ORDERED that:

1. Respondent's Objections are OVERRULED.
2. The Report and Recommendation of United States Magistrate M. Faith Angell is APPROVED and ADOPTED.
3. Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is CONDITIONALLY GRANTED. This matter is REMANDED to the Parole Commission for further proceedings and recalculation of Petitioner's parole consistent with the Report and Recommendation.
20040419

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