Thurman v. Demico

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 7 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
ANTHONY WAYNE THURMAN,
Plaintiff-Appellant,
v. No. 98-6200
(D.C. No. 97-CV-1324)
TONY DEMICO, UNITED STATES (W.D. Okla.)
PAROLE COMMISSION,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL and MURPHY, Circuit Judges.
Petitioner Anthony Wayne Thurman, appearing pro se, appeals from an
order of the United States District Court for the Western District of Oklahoma
denying his petition for habeas relief under 28 U.S.C. § 2241. Mr. Thurman
argues that the United States Parole Commission (“USPC”) lacked statutory
authority under 28 U.S.C. § 841(c) to impose new terms of special parole
following the revocation of his original special parole term in November 1990.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
As a result, Mr. Thurman was not credited for “street time” served during various
periods of re-release.
The district court adopted the findings and recommendation of a magistrate
judge and denied relief under § 2241. Noting a circuit split on the issue, and the
lack of Tenth Circuit precedent on point, the district judge agreed with the
reasoning in Adcock v. Warden, No. CIV-95-1720-R (W.D. Okla. Oct. 9, 1996),
which followed the minority view that 21 U.S.C. § 841(c) permits the USPC to
impose additional terms of special parole following revocation of a prisoner’s
original special parole term.
Subsequent to the district court’s decision in this case, the Tenth Circuit
resolved this issue in Whitney v. Booker, 147 F.3d 1280 (10th Cir. 1998).
Whitney adopted the view of the Second, Third, Fourth, Fifth and Seventh
Circuits, 1 and held that Ҥ 841(c) does not authorize the Commission to reimpose
special parole after the original term has been revoked.” Whitney, 147 F.3d at
1282 (emphasis supplied).
In light of the clearly contrary holding in Whitney, we VACATE the
judgment of the district court and REMAND the case to the district court. The
1
See Strong v. United States Parole Comm’n, 141 F.3d 429, 433 (2d Cir.
1998); United States v. Robinson, 106 F.3d 610, 613 (4th Cir. 1997); Fowler v.
United States Parole Comm’n, 94 F.3d 835, 840 (3d Cir. 1996); Evans v. United
States Parole Comm’n, 78 F.3d 262, 264 (7th Cir. 1996); Artuso v. Hall, 74 F.3d
68, 71 (5th Cir. 1996).
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district court shall then remand to the USPC for recalculation of Mr. Thurman’s
term consistent with the Tenth Circuit’s holding in Whitney. Should the USPC
determine that Mr. Thurman’s maximum period of supervision has expired, Mr.
Thurman must be released from custody.
Mr. Thurman also asserts for the first time on appeal that he should have
been credited for street time earned during certain periods of regular parole
served during the principal incarceration portion of his sentence. As this issue
was not raised in the district court, we review only for plain error. See Fed. R.
Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court."). The record before
us raises concerns that Mr. Thurman may have been improperly denied credit for
portions of street time served while on regular parole. 2 However, because the
2
Based on the record before us, it appears that Mr. Thurman was properly
denied credit for 5 months’ street time served on regular parole between May 1,
1981 and November 30, 1981, because he was convicted for a robbery committed
while on parole. See 28 C.F.R. § 2.52(c)(2) (mandating forfeiture of street time
served from date of release to date of warrant where parolee convicted of offense
punishable by incarceration or detention). However, although Mr. Thurman’s
subsequent parole revocations did not involve convictions, his principal term of
incarceration was ultimately extended nearly 15 months; initially scheduled to end
December 16, 1998, it did not end until March 5, 1990. Particularly confusing is
that the record appears to reflect that Mr. Thurman was denied credit for
approximately 6 months’ street time served on regular parole between January 8,
1987 and June 8, 1988 (the date a warrant was issued for a DUI and for failure to
report an arrest), (see Def.’s Mot. to Dismiss ¶¶ 13-14 (entry no. 26)), even
though the October 6, 1998 order by the USPC revoking parole stated that Mr.
(continued...)
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record before us is unclear, we REMAND this issue to the district court for
further findings with respect to Petitioner’s claim. Because the recalculation of
Mr. Thurman’s sentence may render him eligible for immediate release, we
GRANT Petitioner’s Motion to Expedite the Proceedings. The district court
should consider this motion on an expedited basis on remand.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
(...continued)
2
Thurman was to be credited for street time served. (Id., Ex. M.)
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