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MARTIN v. LUTHER

June 11, 1981

LEE C. MARTIN, PETITIONER,
v.
DENNIS M. LUTHER, UNITED STATES PAROLE COMMISSION, ET AL., RESPONDENTS.



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

ORDER

Before the court is Lee C. Martin's petition for a writ of habeas corpus filed on June 3, 1981, pursuant to 28 U.S.C. § 2241. The facts as stated in the petition are supplemented by the facts alleged in Martin's prior petition filed on April 20, 1981 (81 C 2202) and denied by this court on May 19, 1981, and by the government's response to Martin's prior petition.

Martin was convicted on two counts of distribution of narcotics on April 13 and 15, 1976. He was sentenced to two concurrent six year terms of imprisonment to be followed by a special parole term.

On October 12, 1979, the petitioner was released from prison pursuant to 18 U.S.C. § 4163. The mandatory release indicated that Martin would remain under the jurisdiction of the United States Parole Commission, as if on parole, as provided in 18 U.S.C. § 4164, until June 8, 1981.

On February 6, 1981, the Commission issued a mandatory release violator warrant for Mr. Martin on the basis of information that Mr. Martin had been arrested on January 9, 1981 by the Lombard, Illinois police and charged with unlawful delivery of marijuana and possession of dangerous drugs.

On March 11, 1981, Martin was arrested by the United States Marshal's Service and has been incarcerated at the Metropolitan Correctional Center in Chicago since that time.

After his arrest, Mr. Martin was scheduled for a preliminary hearing on April 1 and April 3, 1981. The preliminary hearing is required by 18 U.S.C. § 4214 to determine whether there was probable cause to believe that Martin violated a condition of his mandatory release. That statute provides, inter alia, that a preliminary hearing shall be conducted "without unnecessary delay," and that the parolee shall have an opportunity to be represented by an attorney retained by the parolee.

On April 3, 1981, Mr. Martin's retained counsel requested a thirty-day postponement to allow Mr. Martin to proceed with his defense of the state charges. The preliminary hearing was then scheduled for May 1, 1981 but on this date, petitioner's attorney was again unavailable and the hearing was postponed.

On April 20, 1981, Mr. Martin filed his first petition for a writ of habeas corpus requesting that this court set bail pending the Parole Commission's revocation determination and alleging that the failure of the Parole Commission to hold a preliminary hearing within ten days of his arrest on March 11, 1981 violated the due process clause of the Fifth Amendment and Parole Commission regulations. See Morrissey v. Brewer, 408 U.S. 471, 98 S.Ct. 2593, 53 L.Ed.2d 484 (1972). This court denied that petition on May 19, 1981 since the government's response indicated that the petitioner had agreed to a thirty-day postponement of the preliminary hearing and since there was nothing to indicate that the Parole Commission would not hold a hearing promptly upon making contact with petitioner's attorney.

On June 3, 1981, Martin filed the present petition. Petitioner now claims that the jurisdiction of the United States Parole Commission expired as of June 8, 1981 and that he cannot now be held for an alleged violation of the conditions of his mandatory release.

18 U.S.C. § 4164 states that

  A prisoner having served his term less good-time
  deductions shall, upon release, be deemed as if
  released on parole until the expiration of the
  maximum term or terms for which he was sentenced
  less one hundred and eighty days.

18 U.S.C. § 4210 states in pertinent part that

  (a) A parolee shall remain in the legal custody
  and under the control of the Attorney General
  until the expiration of the maximum term or terms
  ...

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