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