Ward v. United States Parole Commission , 233 F. App'x 360 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2007
Charles R. Fulbruge III
No. 06-50234 Clerk
Summary Calendar
EDWARD J. WARD,
Petitioner-Appellant,
versus
UNITED STATES PAROLE COMMISSION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
No. 1:05-CV-176
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Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
Edward Ward appeals the denial of his petition for a writ of
mandamus. Ward, who was sentenced in October 1983 to, inter alia,
a 15-year term of special parole, claims that the United States
Parole Commission (“USPC”) terminated its jurisdiction over him by
issuing a certificate of discharge in May 2000, while he was on
regular parole. He challenges the USPC’s continued exercise of
jurisdiction, including the issuance of a violator’s warrant in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-50234
-2-
November 2000.
Ward has moved to supplement the record on appeal. His motion
is granted.
A term of special parole “is an additional period of supervi-
sion which commences upon completion of any period on parole or
mandatory release supervision from the regular sentence; or if the
prisoner is released without supervision, commences upon such re-
lease.” 28 C.F.R. § 2.57(a). If a parolee is granted early
termination of regular parole pursuant to 28 C.F.R. § 2.43, “the
Special Parole Term commences to run at that point in time.” Id.“Early termination from supervision from a Special Parole Term may
occur as in the case of a regular parole term, except that the time
periods considered shall commence from the beginning of the Special
Parole Term.” Id.A notice of discharge issued by mistake does not estop the
USPC from acting on a violator’s warrant absent a showing of af-
firmative misconduct by the government and a showing that the pa-
rolee was prejudiced. See Russie v. United States Dep’t of Jus-
tice, 708 F.2d 1445, 1448-49 (9th Cir. 1983); cf. Llerena v. United
States, 508 F.2d 78, 82 (5th Cir. 1975) (stating that error by dis-
trict court does not provide immunity from a term of special pa-
role). Our review of the record reveals no indication that the
USPC considered early termination of Ward’s 15-year term of special
parole; indeed, under the governing regulations, the USPC could not
validly grant early termination of a mandatory term of special pa-
No. 06-50234
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role where, as here, such a term had yet to commence. See 28
C.F.R. § 2.57(e).
At most, the record indicates a mistake in the issuance of the
certificate of discharge, which did not prejudice Ward, who has ad-
mitted that he was unaware of the certificate. In view of the
foregoing, the district court did not abuse its discretion in deny-
ing mandamus relief on this claim. See United States v. Denson,
603 F.2d 1143, 1146 (5th Cir. 1979).
Ward, who contends that the violator’s warrant was validly ex-
ecuted in December 2000, argues that the USPC denied him due pro-
cess because it failed to hold a revocation hearing following exe-
cution of the warrant. Ward concedes in his reply brief, however,
that a revocation hearing was conducted by the USPC on April 11,
2006, and he does dispute the district court’s determination that
he received credit for the time served between his arrest and his
conviction on money laundering charges in 2001. Accordingly,
Ward’s demand for mandamus relief in the form of a revocation hear-
ing and sentence credit is moot. See Musgrave v. Arnow, 497 F.2d
111, 111 (5th Cir. 1974).
AFFIRMED; MOTION TO SUPPLEMENT THE RECORD GRANTED.