Walden v. U.S. Parole Commission

114 F.3d 1136

Opinion

United States Court of Appeals,

Eleventh Circuit.

No. 95-8556.

Darryl W. WALDEN, Plaintiff-Appellant,

v.

UNITED STATES PAROLE COMMISSION, Phil Burgest, U.S. Probation Officer, Defendants-Appellees.

June 12, 1997.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:94-cv-2599-RLV), Robert L. Vining, Jr., Judge.

Before BIRCH, Circuit Judge, and HILL and FARRIS*, Senior Circuit Judges.

HILL, Senior Circuit Judge:

Darryl W. Walden appeals the district court's dismissal of his

"Instanter Petition for All Writs Act." For the following reasons,

we affirm.

I.

Darryl W. Walden was convicted of armed robbery in 1973, and

received a fifteen year sentence. He was incarcerated and later

transferred to a federal institution. He was paroled in 1980. In

1983, he was arrested in Virginia after a traffic stop during which

drug paraphernalia was found in the car. All charges against

Walden were ultimately dismissed, but a parole violator warrant was

issued. After his return to custody, the Parole Commission

(Commission) held a parole revocation hearing, and his parole was

revoked.

* Honorable Jerome Farris, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by designation. While serving his parole violator term, Walden received two

new federal sentences.1 The remainder of his original fifteen-year

sentence, and the two federal sentences totalling eight years were

aggregated into a sentence of fifteen years, four months and

twenty-two days.

The day before Walden's mandatory release date of February 25,

1994, his probation officer recommended that the Commission impose

a special drug aftercare condition on his probation. The condition

was imposed over his objection, and he was released.

In June of 1994, the probation officer submitted a violation

report indicating that Walden had violated the conditions of his

release by failing to work regularly and to notify his probation

officer of any change in employment and residence. The officer

also reported that Walden had failed to participate in the drug

aftercare program by missing appointments and failing to provide

urine samples. In July, the officer requested a violator warrant

be issued on the grounds that Walden had failed to comply with the

drug aftercare program. The Commission issued a mandatory releasee

violator warrant on July 29, 1994. On August 10, the violator

warrant was executed and Walden was returned to custody.

Just prior to his return to custody, on August 1, 1994, Walden

filed a pro se "Instanter Petition for All Writs Act," requesting,

inter alia, that the district court (1) enjoin the Commission from

any further supervision of him on the grounds he was being held

beyond the full-term expiration of his sentence; (2) enjoin the

1 He received a three year consecutive term for assault on a federal correctional officer and a five year consecutive term for possession of a weapon at a federal correctional facility. revocation of his parole; and (3) reverse the Commission's

decision to impose drug aftercare as a condition of his release.

He also requested a court order permitting him to file a writ of

habeas corpus sometime in the future.

The Magistrate Judge granted Walden permission to proceed in

forma pauperis but denied without prejudice his request for leave

to file a future petition for habeas corpus on the grounds the

request was premature.

On November 7, 1994, he filed a motion to supplement his

original petition to add a claim that the Commission lacked

authority under the Sentencing Reform Act of 1984, Pub.L. 98-473 §

235(b)(4), to revoke or amend the conditions of his parole. He

also filed an "Ex Parte Motion for Discovery and Production,"

requesting that the respondents be ordered to produce certain

documents and other personal property. Walden filed two other

discovery and procedural motions. In April of 1995, the district

court denied all of the pending motions and dismissed the petition

as frivolous pursuant to 28 U.S.C. § 1915(d). Walden filed a

timely notice of appeal.

After two continuances at his request, Walden's parole

revocation hearing was held on June 27, 1995, and his parole was

revoked. He received a fourteen-month parole violator term.

Walden was released again on October 9, 1995. The full-term

expiration date of his sentence is November 28, 1998, with

supervision to terminate on June 1, 1998.

We review the dismissal of Walden's petition for an abuse of discretion.2 Clark v. State of Ga. Pardons and Paroles Bd., 915

F.2d 636, 639 (11th Cir.1990).

II.

Walden claims that the Parole Commission had no authority to

revoke his parole because the plain language of Section 235(b)(4)

of the Sentencing Reform Act (SRA or the Act) transferred authority

to revoke or amend the conditions of his parole from the Commission

to the district court. Pub.L. 98-473, Title II, c. II § 235(b)(4),

98 Stat. 1837, 1987 (1984) (set out as a note to 18 U.S.C. § 3551

(Chapter 227) (1985)). This appears to be an issue of first

impression; we find no reported case interpreting this SRA

provision.

The SRA provides for the total revamping of the sentencing

procedures in the federal judicial system. See United States v.

Weaver, 920 F.2d 1570, 1575 (11th Cir.1991). It replaces a system

of indeterminate sentences and the possibility of parole with

determinate sentencing and no parole. See United States ex rel

D'Agostino v. Keohane, 877 F.2d 1167, 1169 n. 2 (3rd Cir.1989).

Inasmuch as there will be no parole for those convicted after the

effective date of the SRA, the Act abolishes the Parole Commission,

and repeals most of the pre-existing statutory framework governing

parole of federal prisoners. Pub.L. 98-473, §§ 218(a)(5), 235, 98

Stat. at 2027, 2031. See Stange v. U.S. Parole Comm'n, 875 F.2d

760, 761 (9th Cir.1989); D'Agostino, 877 F.2d at 1169 ("It is well

settled that the Sentencing Reform Act abolished the United States

2 We have reviewed the other issues Walden raises on appeal, and find no reversible error. Parole Commission and repealed the federal parole statutes.")

Section 235 of the Act, however, "saves" the Parole Commission

and the federal parole statutes for a period of time during which

the transition to the new system will occur.3 Section 235(b)(1)

provides that 18 U.S.C. Chapter 311, §§ 4201-4218, which creates

the Parole Commission and contains the parole law, "remains in

effect for five years after the effective date [of the Act]", or

November 1, 1992. 98 Stat. at 2027, 2032-33. See Farese v. Story,

823 F.2d 975, 976 (6th Cir.1987). The Parole Commission and all 4 laws relating to parole in existence on October 31, 1987,

therefore, were to continue in effect until November 1, 1997. Id.

See also S.Rep. No. 98-225, reprinted at 1984 U.S.Code Cong. &

Admin.News 3182, 3372 (legislative history to Pub.L. 98-473). We

have previously held that, "Congress explicitly provided that the

parole system was to remain in effect for those sentenced

thereunder during the transition to the sentencing guidelines."

Weaver, 920 F.2d at 1575 n. 10 (emphasis added).

The Parole Commission's authority to modify the conditions of

or revoke parole is part of this system. See 18 U.S.C. §

4203(b)(3). The Commission will "wind-up" its duties by

"discharg[ing] its final responsibilities toward those sentenced

under the preexisting law." Romano v. Luther, 816 F.2d 832, 839

(2d Cir.1987).

Section 235(b) as enacted provided for a five-year phase-out

3 This section is known as the "Savings Provision of Sentencing Reform Act of 1984." Pub.L. 98-473 §§ 211 to 239. 4 This is the day before the SRA became effective. of the parole system. At the end of that time, the Act provides

that:

(4) Notwithstanding the other provisions of this subsection, all laws in effect on the day before the effective date of this Act pertaining to an individual who is

(B)(i) subject to supervision on the day before the expiration of the five-year period following the effective date of this Act; or

(ii) released on a date set pursuant to paragraph (3);

including laws pertaining to terms and conditions of release, revocation of release, provision of counsel, and payment of transportation costs, in accord with the Rules of Criminal Procedures, shall remain in effect as to the individual until the expiration of his sentence, except that the district court shall determine whether release should be revoked or the conditions of release amended for violation of a condition of release.

98 Stat. at 2032-33 (emphasis added).

The original five-year transition period would have expired on

October 31, 1992.5 This section of the SRA has been amended twice.

In 1990, the five-year transition period was extended to ten years,

Pub.L. 101-650, Title III, § 316, Dec. 1, 1990, 104 Stat. 5115

(1990); and in 1996, the ten-year period was extended to fifteen

years. Pub.L. 104-232, §§ 1-3 Oct. 2, 1996, 110 Stat. 3055 (1996).

Accordingly, the transition period does not now expire until

October 31, 2002.6

5 The SRA's effective date was postponed by amendment from November 1, 1986 to November 1, 1987. Sentencing Reform Amendments Act of 1985, Pub.L. 99-217, § 4, 99 Stat. 1728 (1985).

6 The 1996 amendment is entitled the "Parole Commission Phaseout Act of 1996." Pub.L. 104-232, Oct. 2, 1996; 110 Stat. 3055 (1996). Section 2 of those amendments is entitled the "Extension of the Parole Commission." The amendment states that it is an "Act to provide for the extension of the Parole Commission to oversee cases of prisoners sentenced under prior At the end of this time, parole and the Parole Commission will

cease to exist. For those still subject to supervision on the day

before the Parole Commission ceases to exist, Section 235(b)(4)

provides that they remain subject to all the then-repealed parole

laws until their sentences expire. Since the Parole Commission

will no longer exist, however, Section 235(b)(4) provides that the

district court will assume the authority to revoke or modify the

conditions of parole.

Walden's argument that Section 235(b)(4) transferred authority

over him to the district court immediately upon his release in 1994

is without merit.7 Although the language of the section may appear

to do so if read in isolation from the rest of Section 235, the

intention and meaning of Section 235(b) is quite clear in the

context of the rest of the "savings provision."8

law." Id. 7 Walden will be subject to supervision until June 1, 1998. At the time of his parole in 1994, and his revocation in 1995, the wind-up period was ten years and would have ended on October 31, 1997. As he will be subject to supervision on October 31, 1997, Section 235(b)(4) clearly applied to him at the time of the revocation.

On October 2, 1996, the wind-up period was extended to fifteen years. Walden, therefore, will not be subject to supervision on the "day before the expiration of the [fifteen-year] period following the effective date of this Act," which will now be October 31, 2002. Briefs in this appeal were filed on August 16, 1996, before the October 1996 amendments to the SRA. Accordingly, the issue of the applicability of these amendments to Walden's claim was neither briefed nor argued, and we do not consider it in deciding this case. 8 "This is an unsightly literary blemish, but not a grave legal infirmity. In school the composition would not pass, but it may be tolerated in the court-house. The meaning is clear, though the verbal inaccuracy is glaring." Dickson v. State, 62 Ga. 583, 590 (1879). Section 235(b)(1) retains the Parole Commission and provides

that it continue to exercise authority over all parolees until its

demise at the end of the phase-out period. Section 235(b)(4)

retains the prior laws related to parole for the phase-out period

in order to deal with those released but still under supervision.

Cf. D'Agostino, 877 F.2d at 1171 n. 5. The drafters of the SRA

intended that:

[t]he Parole Commission and current law provisions were to remain in effect for five years from the effective date of the title. During this five year period, the Commission was authorized to deal with sentences imposed under the pre-Act practices and the lengths of sentences, parole and good time statutes would remain in effect as to any individual sentenced before the new Act.

Id. at 1171 (citing 1984 U.S.Code Cong. & Admin.News at 3372).

Only after the expiration of the wind-up period, does the Parole

Commission cease to exist. Only then is the authority over any

remaining parolees transferred to the district court.9

III. CONCLUSION

The ten-year (much less the fifteen-year) transition period at

the end of which the Parole Commission will cease to exist has not

expired. The Parole Commission continues to exist with the

authority to modify or revoke parole. This authority will not

transfer to the district court until the day after the expiration

of the phaseout period and the complete dissolution of the Parole

Commission. Accordingly, the district court did not abuse its

9 Although we have not decided the applicability to Walden of the 1996 extension of the wind-up period to fifteen years, the Parole Commission continued to exercise authority at the time of Walden's revocation under the 1990 SRA amendments which extended the life of the Commission for five more years, or until October 31, 1997. discretion in dismissing Walden's petition, and the judgment of the

district court is AFFIRMED.