United States District Court, D. Kansas
HENRY L. IVY, JR., Petitioner,
STEVEN HARMON, Jailer, Respondent.
MEMORANDUM AND ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.
matter is a petition for habeas corpus filed under 28 U.S.C.
§ 2241. Petitioner, currently in parole revocation
proceedings, challenges the legality of the United States
Parole Commission (“USPC”) warrant authorizing
his detention. For the reasons set forth below, the Court
denies the petition for lack of merit.
12, 1988, Petitioner was convicted in the United States
District Court for the Western District of Missouri of the
following crimes committed prior to November 1, 1987:
conspiracy to distribute cocaine and cocaine base; possession
with intent to distribute cocaine base; and use of firearms
during the commission of a felony. (Doc. 20-1, at 2, 4.) On
July 29, 1988, Petitioner was sentenced to “20 (twenty)
years on Count 1, 20 years on Count 2, 20 years on Count 3,
20 years on Count 4, 40 (forty) years on Count 5, mandatory 5
(five) years on Count 6, 40 (forty) years on Count 7.”
Id. at 2. All counts were to run concurrent with one
another, except for Count 6, which must be served
consecutively to the other sentences. Id. The
sentence also included five years of special supervised
January 23, 1991, the sentencing judge ordered that
Petitioner be resentenced. Id. at 4. The court found
defendant's post-confinement supervision should be by
“special parole term” rather than the court
imposed “supervised release.” Supervised release
became effective as of November 1, 1987, United States v.
Padilla, 869 F.2d at 381, but, prior to November 1, 1987
post-confinement supervision was by “special parole
term.” Defendant committed the crimes for which he was
convicted and sentenced prior to November 1, 1987, thus, his
post-confinement supervision should be amended to
“special parole term.”
Id. at 4-5. The court scheduled Petitioner's
resentencing for February 28, 1991. On February 19, 1991,
prior to Petitioner's resentencing, the Supreme Court of
the United States issued its decision in Gozlon-Peretz v.
United States, 498 U.S. 395 (1991). The Supreme Court
held that “for offenses committed in the interim period
between October 27, 1986, and November 1, 1987, supervised
release applies for all drug offenses in the categories
specified by ADAA § 1002.” Id. at 409.
Petitioner was resentenced on March 7, 1991. The order states
that Petitioner was “to serve five (5) years special
supervised release program on Counts 2, 3, and 4, to run
concurrent terms of each count.” (Doc. 20-1, at 6.)
USPC issued a Certificate of Mandatory Release for Petitioner
on October 9, 2013. Id. at 11. The Certificate
included categories for “Mandatory Release, ”
“Special Parole, ” and “Court Designated
Parole.” Id. The category for “Mandatory
Release” is checked and provides that Petitioner:
is entitled to 6695 days Statutory and/or Extra Good
Time deductions from maximum term sentence imposed as
provided by law, and is hereby released from this institution
under said sentence on 07-24-2014. Said person was
released by the undersigned according to Title 18 U.S.C.
Section 4163. Upon release the above named person is to
remain under the jurisdiction of the United States Parole
Commission, as if on parole as provided in Title 18, U.S.C.
Section 4164, as amended under the conditions set forth on
the reverse side of this certificate, and is subject to such
conditions until expiration of the maximum term, or terms of
sentence, less 180 days on 09-15-2032 with a total
of 6808 days remaining to be served.
Id. Petitioner was released from prison on July 24,
2014, via mandatory release. Id. at 8, 10. The
Sentence Monitoring Computation Data as of July 24, 2014, has
a line for “special parole term, ” which is left
blank. Id. at 8.
September 5, 2014, a USPC Case Analyst requested that the
Commission issue a warrant for Petitioner's arrest for
violating the terms of his mandatory release. Id. at
14-15. The Warrant Application alleges that Petitioner was
arrested on September 3, 2014, for possession of heroin,
possession with intent to distribute heroin, and possession
of marijuana. Id. The USPC signed and issued the
warrant that same day. Id. at 16. On May 23, 2017,
the United States Marshals executed the warrant and arrested
Petitioner in Nashville, Tennessee. Id. at 17. The
Case Analyst supplemented the arrest warrant on September 15
and September 18, 2017, to add charges for leaving the
district without permission, failure to report change in
residence, and failure to report to supervising officer as
directed. Id. at 18-19. On October 25, 2017, the
Case Analyst corrected the September 18, 2017 warrant
supplement to add language stating that Petitioner had not
had contact with his supervising officer since an in-person
visit on August 18, 2014, and his whereabouts were unknown
until his arrest in May, 2017. Id. at 20.
August 4, 2017, the Probation Office for the Western District
of Kentucky attempted to conduct Petitioner's preliminary
interview to allow the Commission to make a probable cause
determination. Id. at 21. Because Petitioner elected
to be represented by counsel and counsel had not been
assigned, the preliminary interview was postponed until
August 10, 2017. Id. After the preliminary
interview, the interviewing officer recommended that the USPC
make a finding of probable cause. Id. at 22. On
November 16, 2017, the USPC informed Petitioner through
counsel that they had made a probable cause finding.
Id. at 23-25.
filed this § 2241 petition in the United States District
Court for the Western District of Kentucky, and the matter
was transferred to this Court on January 8, 2018, due to
Petitioner's transfer to Leavenworth, Kansas.