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Ortiz v. Apker

July 21, 2010

ALEX ORTIZ, PETITIONER
v.
CRAIG APKER, ET AL., RESPONDENTS



The opinion of the court was delivered by: Hon. John E. Jones III

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

Petitioner Alex Ortiz ("Petitioner") or ("Ortiz"), who presently is confined at the Brooklyn Metropolitan Detention Center ("MDC Brooklyn") in Brooklyn, New York, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2241.*fn1 At the time of filing, Ortiz was an inmate at the Low Security Correctional Institution Allenwood ("LSCI Allenwood") in White Deer, Pennsylvania. He alleges that the United States Parole Commission ("Commission")'s action in re-imposing a term of special parole after revoking his original term violates the controlling precedent in the Third Circuit set forth in Fowler v. United States Parole Commission, 94 F.3d 835 (3d Cir. 1996). For the reasons set forth below, the Petition will be granted, and this matter will be remanded to the United States Parole Commission for further proceedings.

I. Factual Background

On January 20, 1984, Ortiz was sentenced by the United States District Court for the Southern District of New York to a term of imprisonment of ten (10) years, to be followed by a ten (10) year special parole term.*fn2 (See Doc. 7-3 at 4*fn3 , Sentence Monitoring Computation Data.) Ortiz was sentenced following his conviction for distributing and possessing with intent to distribute a schedule I narcotic drug. (See id.) He began serving the ten (10) year special parole term on March 19, 1998, and was to remain under special parole supervision until March 18, 2008. (See id. at 6, Certificate of Special Parole.)

In a Notice of Action dated November 5, 1999, the Commission found that, based on his admission, Ortiz had violated the conditions of his release as set forth in the following charges: "Charge No. 1 - Use of Dangerous and Habit Forming Drugs. Charge No. 2- Law Violation: Disorderly Conduct. Charge No. 3- Violation of Special Condition (DAPS)." (See id. at 8, 11/5/99 Notice of Action.) Consequently, the Commission revoked Ortiz' special parole, ordered that he receive no credit for the time accumulated while on special parole, i.e. street time, and that he continue to serve to presumptive parole on December 13, 2000 after serving sixteen (16) months. (See id.) The Commission further ordered the conversion of Ortiz' special parole term to a regular term of imprisonment with eligibility for parole under 18 U.S.C. § 4208(a). (See id.)

On December 5, 2000, the Commission issued a notice of Action vacating the portion of its November 5, 1999 Notice that had converted the special parole term to a regular parole term/term of imprisonment. (See id. at 11, 12/5/00 Notice of Action.) The Notice stated that this decision was "[b]ased on the Commission's determination that the decision in Johnson v. United States, 120 S.Ct. 1795 (2000) invalidates prior lower court decision mandating the conversion of a special parole term after its revocation." (See id.) The Commission subsequently issued a Certificate of Parole reparoling Ortiz to his special parole term as of December 13, 2000, and providing that he was to remain on supervision until August 15, 2009. (See id. at 12-14, 12/13/00 Certificate of Parole.)

On May 29, 2001, Ortiz agreed to the Commission's disposition of parole violations based on the following charges: Use of Dangerous and Habit Forming Drugs; Failure to Submit to Drug Testing; and Violation of Special Condition (DAPS). (See id. at 15-17, Notice to Alleged Parole, Special Parole, or Mandatory Release Violator Eligibility for Expedited Revocation Procedure.) In accepting the Commission's decision, which was to revoke special parole, provide no credit for time spent on special parole, and reparole after sixteen (16) months, Ortiz waived his right to a revocation hearing.(See id.) Following his acceptance, the Commission formalized its decision in a Notice of Action dated June 8, 2001. (See id. at 19-20, 6/8/01 Notice of Action.) When Ortiz was reparoled for the second time on August 22, 2002, his new full term date was December 23, 2009, such that he had lost about three and one-half months of street time. (See id. at 22-23, 8/22/02 Certificate of Parole.)

On April 15, 2003, the Commission issued a warrant charging Ortiz with violations based on illegal drug use and failing to report to his probation officer as directed, and specifically, having absconded from supervision as of January 28, 2003. (See id. at 25-26, Warrant Application.) Ortiz was not arrested on the warrant until over two years later, on March 15, 2005. (See id. at 27-30, Summary Report of a Preliminary Interview.) Ortiz again accepted the Commission's expedited revocation proposal pursuant to which special parole was revoked, he received no credit for time spent on special parole, and he was to be reparoled after fourteen (14) months. (See id. at 31, 6/20/05 Response to Expedited Revocation Proposal.) The Commission formalized its decision in a Notice of Action dated July 7, 2005. (See id. at 32-34.) When Ortiz was reparoled for the third time on May 13, 2006, his new full term date was July 14, 2012. (See id. at 35-37, 5/13/06 Certificate of Parole.)

On February 9, 2007, the Commission issued a warrant charging Ortiz with two separate violations of the special drug aftercare conditionas well as use of dangerous and habit forming drugs. (See id. at 38-39, Warrant Application.) On July 11, 2007, Ortiz again accepted the Commission's expedited revocation proposal pursuant to which special parole was revoked, he received no credit for time spent on special parole, and he was to be reparoled after sixteen (16) months. (See id. at 40, Response to Expedited Revocation Proposal.) The Commission formalized its decision in a Notice of Action dated August 22, 2007. (See id. at 44-46, 8/22/07 Notice of Action.)

II. Procedural Background

Ortiz filed the instant Petition on November 2, 2007. (Doc. 1.) By Order dated November 15, 2007, service of the Petition was directed. (Doc. 3.) On December 5, 2007, Respondents filed a Response (Doc. 7) and supporting exhibits (Doc. 7-3). On December 17, 2007, Ortiz filed his Reply. (Doc. 9.) On March 10, 2008, Respondents filed a Notice of Supplemental Authority bringing to the Court's attention the decision in Edwin Nazario v. U.S. Parole Commission, Civil No. 3:07-CV-0282, slip op. (M.D. Pa. Feb. 13, 2008) (Vanaskie, J.). (Doc. 10.) Ortiz filed a Response to the Notice of Supplemental Authority on March 31, 2008. (Doc. 11.) Accordingly, the Petition is fully briefed and ripe for review.

III. Discussion

In his Petition, Ortiz asserts that the Commission lacked authority to re-impose additional terms of special parole after it revoked his original term of special parole, and that, in doing so, it violated Fowler. (See Doc. 1 at 3-4.) He argues that the Commission erred in interpreting what he identifies as dicta in the United States Supreme Court's decision in Johnson v. United States, 529 U.S. 694 (2000) as overruling Fowler such that it is permissible for the Commission to reparole violators to successive terms of special parole after having revoked the original term of ...


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