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RUBIO v. CHAIR. OF U.S. PAROLE BD.

March 20, 1973

JOSE RUBIO, PETITIONER,
v.
THE CHAIRMAN OF THE U.S. PAROLE BOARD, CHICAGO DIVISION, CHICAGO, ILLINOIS, RESPONDENT.



The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the respondent's motion to dismiss this case pursuant to Rule 12(b)(1) and (6) of the Federal Rules of Civil Procedure. The respondent contends that this Court does not have jurisdiction over the subject matter and further that the petitioner has failed to state a claim upon which relief can be granted.

The petitioner, Jose Rubio, has brought this action styled as an action for declaratory judgment against the United States Parole Board, contending that his mandatory release under Title 18 U.S.C. § 4163 and 4164 is not parole and does not subject him to the authority of the United States Parole Board. The petitioner further contends, in effect, that his good time is vested and has the effect of releasing him from the rules and regulations of the United States Parole Board.

It is the opinion of this Court that while this Court has jurisdiction over the subject matter of this action, the petitioner has failed to state a claim upon which relief can be granted.

I. This Court has jurisdiction over the instant action.

Respondent's contention that this Court would not have jurisdiction over a petition for declaratory judgment is technically correct. However, under the mandate of Haines v. Kerner, 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819 (1972) that pro se complaints should be held to less stringent standards than those formal pleadings drafted by lawyers, it is clear that the instant action should be treated as a petition for habeas corpus. As the Court noted in Van Buskirk v. Wilkinson, 216 F.2d 735 (9th Cir. 1954), the petitioner has "mistaken his remedy," an understandable error for which he should not be penalized. Thus, jurisdiction is proper over the instant habeas corpus petition because the petitioner's place of custody is in this district.

II. The petitioner has failed to state a claim upon which relief
    can be granted.

The crux of the petitioner's challenge is to that part of Section 4164 which states that persons released pursuant to the mandatory release provision "be deemed as if released on parole." More specifically, he challenges:

1. the requirements of making periodic reports;

  2. the legality of respondent's devising a set of
     rules for his conduct after his mandatory
     release;
  3. the authority under which he can be arrested and
     returned to prison for failure to comply with the
     conditions of his release; and
  4. the conclusion that his custody remains, and
     jurisdiction exists, in the Attorney General of
     the United States in a dormant state until the
     full term of his original sentence shall have been
     completed.

The challenges to the constitutionality of §§ 4163 and 4164 are without merit. See Desmond v. United States Board of Parole, 397 F.2d 386 (1st Cir. 1968), cert. denied, 393 U.S. 919, 89 S.Ct. 249, 21 L.Ed.2d 206 (1968) upholding the constitutionality of that section. See also Robinson v. Willingham, 369 F.2d 688 (10th Cir. 1966); United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6th Cir. 1944), cert. denied, 322 U.S. 751, 64 S.Ct. 1262, 88 L.Ed. 1581 (1944); Gould v. Green, 78 U.S.App.D.C. 363, 141 F.2d 533 (1944). We agree with the statement of the Court in Desmond that:

    We cannot say that Congress, in affording prisoners
  relief from service of time in prison, cannot impose
  conditions, subject to reasonable rules and
  regulations, governing the continued freedom from
  ...

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