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Ivy v. Harmon

United States District Court, D. Kansas

May 14, 2018

HENRY L. IVY, JR., Petitioner,
v.
STEVEN HARMON, Jailer, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE.

         This 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.

         I. Facts

         On May 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 release. Id.

         On January 23, 1991, the sentencing judge ordered that Petitioner be resentenced. Id. at 4. The court found that:

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.)

         The 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.

         On 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.

         On 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.

         Petitioner 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.

         II. ...


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