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HEBEL v. LUTHER

November 12, 1982

PETER MICHAEL HEBEL, A/K/A PETER MICHAELS, PETITIONER,
v.
DENNIS LUTHER, WARDEN, METROPOLITAN CORRECTIONAL CENTER, RESPONDENT.



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

ORDER

On April 12, 1982, Petitioner Peter Michael Hebel was arrested on a parole violator warrant. On July 29, 1982, this Court permitted petitioner to be released on bail pending a parole revocation hearing. Hebel v. Luther, 544 F. Supp. 179 (N.D.Ill. 1982). A hearing was held on August 16, 1982 at the Chicago Metropolitan Correctional Center. On September 1, 1982, the Parole Commission determined that petitioner's parole should be revoked. On September 29, 1982, petitioner appealed this decision to the Regional Commissioner, and the decision was affirmed on October 27, 1982. This Court vacated petitioner's bail on October 29, 1982 pursuant to the government's motion. Petitioner was ordered to surrender on November 2, 1982 at the MCC. On that date, petitioner appeared before this Court seeking immediate release.

I.

Although petitioner's motion erroneously states that he seeks release on the basis of accrued good-time allowances, his memorandum indicates that the grounds for his motion are actually the following. Petitioner claims that 1) from July 29, 1982 until the present, he has remained under the "jurisdiction" of the Parole Commission as that term is used in 18 U.S.C. § 4210(b), 2) the time he spent under the jurisdiction of the Commission is time "in custody" and automatically counts toward the service of his sentence, 3) either the Parole Commission or this Court is required to credit his sentence for the time he served on parole, and finally 4) when the parole period is properly credited, the result requires petitioner's immediate release.

Although this Court agrees with petitioner's assertion that, from July 29, 1982 until the present, he has remained, for some purposes, under the jurisdiction of the Parole Commission, this conclusion does not require automatic crediting of petitioner's sentence and his immediate release. Rather, for the reasons hereinafter stated, this Court believes that the case must be remanded to the Commission for a determination of the appropriate reduction, if any, in the amount of time petitioner is required to serve.

II.

Without citing any authority, the government asserts that once petitioner was released on bail, he was free from the Parole Commission's jurisdiction. This Court agrees with petitioner that this assertion is neither consistent with the Commission's regulations, nor compelled by logic. Specifically, 28 C.F.R. § 2.44(d)(1980), replacing 28 C.F.R. § 2.46(c), provides that the issuance of a parole violator warrant does not suspend Commission jurisdiction, but rather causes it to be maintained. The regulation's passage was, in part, directed at a problem analogous to the situation at hand, namely that of a parolee against whom a warrant had been issued, but with regard to whom execution had been stayed pending the outcome of a criminal trial. Under the earlier regulation, it had been argued that the issuance of the violator warrant, since it tolled the running of the parole term in some sense, also removed the parolee from Commission jurisdiction. Revised § 2.44(d) was promulgated to make clear that, upon issuance of the warrant, the parolee remains under Commission jurisdiction, even though the alleged violator is allowed to remain at liberty while awaiting a criminal trial. 45 Fed.Reg. 84054-84055 (Dec. 22, 1980). The regulation reflects the Commission's recognition of the fact that "[d]uring the period such a parolee is at liberty awaiting trial, the commission is still responsible to society for providing adequate supervision and control of that parolee's behavior." Id. at 84055. This Court sees no valid distinction, nor has the government provided any, between the situation contemplated by the regulation and that of Mr. Hebel, where bail was ordered by this Court pending final determination of the merits of the charges. In both situations, Commission jurisdiction is properly maintained. The fact that the government would have been required to request this Court to issue a warrant had petitioner absconded while on bail does not alter this conclusion, nor does the fact that the government was required to seek vacation of petitioner's bail from the Court. Nothing in the statutory or regulatory scheme indicates that this Court's and the Commission's jurisdiction over petitioner are necessarily mutually exclusive. Since the government's arguments are premised on an assumption of exclusive jurisdiction, this Court believes that they are without merit.

III.

Despite this Court's acceptance of the first leg of petitioner's argument, it does not immediately follow that the time petitioner spent under Commission jurisdiction must be credited against his sentence. Petitioner's argument is based on his inaccurate assertion, with which the government erroneously agrees, that time spent under the jurisdiction of the Parole Commission is invariably considered to be time spent "in custody," and thus must be credited against petitioner's sentence under the terms of 18 U.S.C. § 3568. The two cases cited by petitioner interpreted statutes which have since been superceded, and the decision on which the government relies is inapposite.*fn1

Rather, the issue is apparently governed by 18 U.S.C. § 4210(b) and the regulations promulgated thereunder. The latter statute provides that:

  (b) Except as otherwise provided in this section,
  the jurisdiction of the Commission over the
  parolee shall terminate no later than the date of
  the expiration of the maximum term or terms for
  which he was sentenced, except that — . . .
  (2) in the case of a parolee who has been
  convicted of a Federal, State, or local crime
  committed subsequent to his release on parole,
  and such crime is punishable by a term of
  imprisonment, detention or incarceration in any
  penal facility, the Commission shall determine,
  in accordance with the provisions of section
  4214(b) or (c), whether all or any part of the
  unexpired term being served at the time of parole
  shall run concurrently or consecutively with the
  sentence imposed for the new offense, but in no
  case shall such service together with such time
  as

  the parolee has previously served in connection
  with the offense for which he was paroled, be
  longer than the maximum term for which he was
  sentenced in connection with such offense.

Pursuant to this statute, the Parole Commission has promulgated 28 C.F.R. § 2.52. Section (c) of that regulation states that:

  (c) A parolee whose release is revoked by the
  Commission will receive credit on service of his
  sentence for time spent under ...

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