United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
MATTHEW F. KENNELLY United States District Judge.
Louis Johnson has filed a petition for a writ of habeas
corpus, alleging that his ongoing confinement resulting from
a term of special parole imposed in 1976 is unlawful. For the
reasons set forth below, the Court denies the petition.
1976, a federal judge sentenced Johnson to twenty years in
prison for drug-related offenses under 21 U.S.C. §§
841(a)(1) and 846. Applying the version of section 841 in
effect at the time, the judge imposed a three-year term of
"special parole." "Special parole was a
short-lived instrument of federal criminal justice."
Evans v. U.S. Parole Comm'n, 78 F.3d 262, 264
(7th Cir. 1996). Congress eliminated special parole when it
enacted the Sentencing Reform Act of 1984, but it still
applies to individuals- such as Johnson-who received a
sentence including a term of special parole before November
1, 1987. Edwards v. Cross, 801 F.3d 869, 871 (7th
Cir. 2015). Relevant to this case are two features of special
parole that distinguish it from regular parole. First,
"special parole follows the term of imprisonment, while
regular parole entails release before the end of the
term." Id. Second, "when special parole is
revoked, its full length becomes a term of
served about seven years of his twenty-year sentence before
he was released on regular parole in May 1983. At that point,
his term of regular parole was to last until January 31,
1996, followed by the special parole term that would continue
until January 30, 1999. See Certificate of Parole
(Apr. 11, 1983), Owens' Ex. 2, dkt. no. 9-2;
Certification of Special Parole (Apr. 28, 1983), Owens'
Ex. 3, dkt. no. 9-2.
1985, however, two years into his first term of regular
parole, Johnson committed a shooting that resulted in
convictions for aggravated battery and attempted murder.
Shortly after the Chicago Police Department arrested Johnson
for the shooting, the United States Parole Commission issued
a warrant for his arrest. The United States Marshal placed
the warrant as a detainer, meaning that the Marshal would be
notified upon Johnson's release from prison "so he
[could] be immediately taken into federal custody for a
revocation of parole hearing." See Matamoros v.
Grams, 706 F.3d 783, 788 (7th Cir. 2013); see
also 28 C.F.R. § 2.47(a) ("When a parolee is
serving a new sentence in a federal, state or local
institution, a parole violation warrant may be placed against
him as a detainer."). Johnson was sentenced to a 40-year
term of imprisonment for the shooting. He remained in state
prison until 2005, at which time the U.S. Marshal took him
into federal custody pursuant to the detainer.
December 2005, the Parole Commission revoked Johnson's
regular parole and ordered him to serve the remainder of his
original 1976 sentence, on which nearly thirteen years
remained. Sentence Monitoring & Computation
Data, Owens' Ex. 1, dkt no. 9-2, at 10. Johnson remained
in federal prison until 2013, when he was released on regular
parole based on "good time deductions."
See id. at 9; 28 C.F.R. § 2.35(a). But
Johnson's parole was revoked in May 2014 because he
failed to comply with a parole condition requiring him to
pursue mental health treatment. He was incarcerated until
April 2015, when he was released on parole again for several
weeks until his parole was revoked-this time because he
absconded from his residential reentry center. In February
2017, Johnson was released from federal custody on ordinary
parole for the fourth and final time, only to have his parole
revoked again in June 2017 after he violated a term of his
parole that barred him from having contact with a particular
December 8, 2017, with Johnson's original twenty-year
sentence scheduled to expire in March of the following year,
the Parole Commission released him and allowed his three-year
term of special parole to commence. Certificate of Special
Parole (Dec. 8, 2017), Owens' Ex. 28, dkt. no. 9-2. Upon
his release, however, he received a form indicating that he
had no remaining period of regular or special parole.
See Notice of Release & Arrival, Ex. 2 to
Johnson's Dec. 7, 2018 Submission, dkt. no. 8. Johnson
also alleges that his probation officer told him that he
"had to be good until March 2018 and then [his] parole
supervision would be over." Pet. for Writ of Habeas
Corpus, dkt. no. 1, at 3.
was re-arrested in May 2018 for violating his parole
conditions related to mental health treatment and contact
with federal judges. While he was in federal custody awaiting
his parole revocation hearing, Johnson filed this petition
for a writ of habeas corpus. The Parole Commission ultimately
decided to revoke his special parole, resulting in his
incarceration for three years from the date of date of his
most recent arrest. See Notice of Action (Nov. 6,
2018), Owens' Ex. 34, dkt. no. 9-2, at 1; see also
Edwards, 801 F.3d at 871-72 ("[I]f an individual is
reimprisoned for violating special parole, when he is
released he must serve the entire original term of the
special parole reduced only by the additional time spend in
prison-he receives no credit for the 'street time'
spent on special parole before the violation.").
Johnson's term of special parole-and thus his current
term of incarceration-will expire on May 2, 2021.
central argument in support of his petition is that in
December 2017, upon his release from federal incarceration,
he was given a notice of release indicating that there was no
remaining period of supervision or special parole.
See Ex. 2 to Johnson's Dec. 7, 2018 Submission,
dkt. no. 8. He contends that the imposition of the term of
special parole and his ongoing incarceration that resulted
from the revocation of that parole are therefore unlawful.
argument is foreclosed by the Seventh Circuit's decision
in Matamoros v. Grams, 706 F.3d 783 (7th
Cir. 2013). In Matamoros, the court considered
whether the petitioner seeking a writ of habeas corpus had
been given sufficient notice of his term of special parole to
satisfy the Due Process clause of the Fifth Amendment to the
U.S. Constitution. The court found that the notice provided
was sufficient under the circumstances because the court
presumed that Matamoros had been told about the special
parole term when he was sentenced, he had received several
documents informing him about the special parole term, and
the statute itself (21 U.S.C. § 841) clearly made
special parole a mandatory part of his sentence of
conviction. Matamoros, 706 F.3d at 790-91. Each of
these factors applies equally to Johnson. Perhaps most
significantly, Johnson's term of special parole was
imposed under section 841(c), which the Seventh Circuit
described as "the provision most damaging to
Matamoros' contention that he had every reason to believe
that he was no longer a parolee subject to supervision"
because of its clear and mandatory language. Id. at
791 (internal quotation marks omitted). Under
Matamoros, therefore, Johnson had sufficient notice
of his term of special parole to satisfy due process.
alternative, it is possible to understand Johnson as arguing
that the government was estopped from imposing a term of
special parole because it represented that he had no
outstanding term of parole or supervised release when it
released him from custody in December 2017. But the court in
Matamoros considered and rejected this argument as
well, explaining that estoppel applies only if the government
engaged in "affirmative misconduct." Id.
at 794. As in Matamoros, Johnson has not pointed to
any evidence that the failure to note his special parole term
on the notice of release was "anything more than the
result of mere negligence." Id. To the extent
that Johnson's argument relies on the alleged statement
by his parole officer that his parole term would expire in
March 2018, he has similarly failed to present evidence or
even plausibly allege that this was a knowing or purposeful
other arguments require only a brief discussion. First, he
contends that his period of regular probation should have run
concurrently with his term of state incarceration. But the
regulations governing the calculation of his parole term
require these sentences to run consecutively. See 28
C.F.R. § 2.47(e)(2) ("[T]he revoked parolee's
original sentence (which due to the new conviction, stopped
running upon his last release from federal confinement on
parole) again start[s] to run only upon release from the
confinement portion of the new sentence . . . .").
Second, Johnson argues that he was improperly confined for
more than two-thirds of his original twenty-year sentence.
But the regulation imposing mandatory parole after the
two-thirds mark of his term of incarceration, 28 C.F.R.
§ 2.53, required only his release on parole-it did not,
as Johnson appears to suggest, prevent the Parole Commission
from revoking his parole for violating its conditions.
See 28 C.F.R. § 2.53(c) ("A prisoner
released on ...