Edwards v. Cross (801 F.3d 869, 2015)

ROVNER, Circuit Judge.

George H. Edwards, Jr. appeals from the district court’s denial of his petition for a writ of habeas corpus. See 28 U.S.C. § 2241. He is currently under the supervision of the United States Parole Commission serving a term of special parole that stems from a narcotics conviction in 1985. Although Edwards completed his term of imprisonment for that conviction in 2000, the Parole Commission has responded to his regrettable history of parole violations with repeated reimprisonment and the reimposition of special parole, which remains in force to this day. Edwards maintains that the Parole Commission lacks the authority to reimpose special parole and seeks an order compelling the Commission to convert his current term of special parole to ordinary parole. Edwards’ appeal hinges on the definition of the word “revoke” in the special parole statute, see 21 U.S.C. § 841(c) (1982 ed.), which was repealed over twenty years ago in 1984, see Act of Oct. 12, 1984, Pub.L. No. 98-473, § 224(a)(6). Although we concluded in Evans v. U.S. Parole Commission, 78 F.3d 262 (1996), that the Parole Commission could not reimpose special parole after a term of reimprisonment, that conclusion has since been called into question by the Supreme Court’s subsequent decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), interpreting the word “revoke” in 18 U.S.C. § 3583(e) (1988 & Supp. II 1990), a supervised release statute with some similarities to 21 U.S.C. § 841(c). The district court concluded that our interpretation of the word “revoke” in Evans was undermined by the Court’s holding in Johnson and denied Edwards’ petition. We conclude that the differences between former § 841(c) and § 3583(e) predominate over the admitted similarities; thus, we hold that our decision in Evans interpreting § 841(c) continues to be good law. Accordingly, we vacate and remand the decision of the district court.

I.

In order to understand the issue presented by this case and why Edwards remains under the authority of the Parole Commission over thirty years after his 1985 narcotics conviction, we must recount both the history of Edwards’ repeated parole violations and the enactment and repeal of several statutes pertaining to post-imprisonment supervision. Edwards’ extended encounter with imprisonment and parole began in 1985 when he was convicted of cocaine distribution and sentenced to fifteen years imprisonment to be followed by ten years of “special parole.” See § 841(c) (1982 ed.).

Special parole was created in 1970 as a mandatory additional penalty for drug offenses. The Sentencing Reform Act of 1984 eliminated parole (both special and regular), replaced it with supervised release, and repealed 21 U.S.C. § 841. See United States v. Sandidge, 784 F.3d 1055, 1067 (7th Cir.2015) (“We note that the system of supervised release followed the elimination of parole in the federal system.”). However, the Parole Commission continues to exercise jurisdiction over the dwindling number of individuals, like Johnson, who committed a federal offense before November 1, 1987, when the Sentencing Reform Act took effect. E.g., United States v. Wells, 177 F.3d 603, 607 n. 3 (7th Cir.1999). “Three things are ‘special’ about special parole: first, special parole follows the term of imprisonment, while regular parole entails release before the end of the term; second, special parole was imposed, and its length selected, by the district judge rather than by the Parole Commission; third, when special parole is revoked, its full length becomes a term of imprisonment.” Evans, 78 F.3d at 263. Thus, if 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 spent in prison — he receives no credit for the “street time” spent on special parole before the violation.

This mechanism is illustrated by Edwards’ long history of violating his special parole. In February 2000, Edwards began his term of special parole, which was due to expire in February 2010. In March 2001, he was taken into custody for violating the terms of his parole (by shoplifting, failing a drug test, and failing to provide personal and business records to his parole officer). His special parole was revoked, and he returned to prison on July 26, 2001. He was released from prison in December 2001. At this point, under § 841(c), his special parole reverted to a full ten year term less the time he spent in custody (March to December 2001); no credit was given for the time he had already spent on special parole. Thus, his new parole term was set to expire in March 2011.

But in 2007, Edwards pleaded guilty to one count of wire fraud. He was sentenced to one year and a day in prison to be followed by four years of supervised release. He completed the prison term for wire fraud in December 2007 but remained in prison because the Parole Commission revoked his parole. Reasoning that he had been on special parole when he pleaded guilty in 2007, the Parole Commission added six more years to his sentence to account for the forfeited street time between his December 2001 release from prison (following the first parole revocation) and his 2007 conviction. Edwards’ parole term was then set to expire in February 2017.

Edwards challenged the reimposition of special parole following his wire fraud conviction. The Sixth Circuit rejected Edwards’ challenge, noting that because he had been convicted of a crime, under current parole law Edwards would have forfeited his street time even if he had been serving regular parole. See Edwards v. Dewalt, 681 F.3d 780 (6th Cir.2012); 28 C.F.R. § 2.52(c)(2) (providing that an ordinary parolee convicted of a new offense while on parole will not receive credit on service of his sentence for time spent on supervision). It thus concluded that it need not decide the “interesting and difficult issue” of whether its own holding that a revoked special parole term could not be reimposed survived the Supreme Court’s decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), interpreting the supervised release statute, 18 U.S.C. § 8583(e) to allow reim-position of supervised release following its revocation. See Dewalt, 681 F.3d at 784-85 (citing Dolfi v. Pontesso, 156 F.3d 696, 698-99 (6th Cir.1998) which had held that the Parole Commission lacked authority under 21 U.S.C. § 841(c) to impose a new term of special parole after revoking the original term).

Edwards’ current situation forces us to confront this “interesting and difficult issue” directly. He was released on parole in 2010 but then sent back to prison in 2013 for again violating the terms of his supervised release (stemming from the wire fraud conviction). Shortly-thereafter, the Parole Commission issued a parole-violator warrant (for the same conduct that led to his supervised release revocation) as a detainer against him pending the completion of his sentence for violating the supervised release. See Matamoros v. Grams, 706 F.3d 783, 788 (7th Cir.2013) (“The purpose of [a] detainer is to make sure the U.S. Marshal is notified when [a parolee] is discharged from his ... prison sentence so he can be immediately taken into federal custody for a revocation of parole hearing.”).

At that time, Edwards filed a petition for a writ of mandamus under 28 U.S.C. § 1361 seeking an order compelling the Parole Commission to conduct a parole termination hearing and terminate his parole violation status and suspend his supervision in the interim. He also filed a petition for a writ of habeas corpus under § 2241, requesting an order compelling warden James Cross to convert his special parole to a regular term of imprisonment and hold a hearing on his parole violation or, in the alternative, terminate his special parole and release him from all conditions of parole. The district court denied Edwards’ mandamus petition after concluding that Edwards had not shown that the Parole Commission owed him a duty which it had failed to perform.

It also denied Edwards’ habeas petition. The court first rejected Edwards’ arguments attacking the Parole Commission’s failure to hold a revocation hearing within 90 days of his violation and its failure to hold a dispositional review within 180 days of placing the detainer against him. See 18 U.S.C. § 4214(b)(1) (repealed 1984). Finally, on the issue of the reimposition of special parole, the district court declined to address Edwards’ argument that the Commission could not reimpose special parole following his third violation because the parole had not yet been revoked. However, the court concluded that such a reimposition of special parole would be unproblematic because the Supreme Court’s decision in Johnson indirectly abrogated this court’s conclusion in Evans that release from imprisonment following revocation of special parole must be to regular, not special parole.

II.

On appeal, Edwards focuses solely on his claim that under Evans, the Parole Commission lacks the authority to reimpose special, as opposed to regular, parole once it is revoked. We note at the outset that § 2241 is a proper vehicle for relief because special parole satisfies the “custody” requirement of that statute and Edwards is in essence claiming that he is being kept on special parole in “violation of the Constitution or laws or treaties of the United States”—specifically § 841(c). See Evans, 78 F.3d at 264; see also Edwards, 681 F.3d at 784 (“Because Edwards is challenging the manner in which his parole is to be served, his claims were properly brought pursuant to the provisions of § 2241.”)

The defendants first claim that Edwards has waived his argument about reimposition of special parole. This argument goes nowhere. Not only should his pleadings in the district court be construed liberally because he was proceeding pro se, e.g., Nichols v. Mich. City Plant Planning Dep’t, 755 F.3d 594, 600 (7th Cir.2014), it is clear that he has argued from the beginning that the Parole Commission lacked power to reimpose his term of special parole. The Commission argues that Edwards did not raise his “specific complaint regarding re-imposing special parole” until his reply to the Commission’s opposition to his motion for summary judgment. But the Commission itself acknowledges that from the outset Edwards contested its authority to impose another term of special parole. The Commission also notes that it responded to Edwards’ (allegedly inadequate) argument with its own “extensive legal argument” as to whether it could reimpose special parole, so there is no question that he provided fair notice of his claim. Thus, his failure to respond to specific arguments by the Commission in a surreply (filed in response to Edwards’ reply to the Commission’s response to his motion for summary judgment) hardly amounts to waiver. See Sidney Hillman Health Ctr. v. Abbott Lab., Inc., 782 F.3d 922, 927 (7th Cir.2015) (“ ‘[wjaiver is not meant as an overly technical appellate hurdle’ and the nuances of a litigant’s arguments may differ from their stance in the district court without resulting in waiver.”) (quoting Fox v. Hayes, 600 F.3d 819, 832 (7th Cir.2010)).

The Commission also argued that Edwards’ claim was not yet ripe for review because he was not yet serving a term of special parole. But given events subsequent to Edwards’ appeal, that argument too goes nowhere. In October 2014, Edwards was scheduled to be released from prison for his supervised release violation, but he remained in prison on the detainer. Although he was still in prison on the detainer when this case was argued, the Parole Commission revoked Edwards’ parole approximately one month after oral argument. Because he did not contest that he had violated parole terms, his parole was revoked without a hearing under the expedited revocation procedure. See 28 C.F.R. § 2.66 (authorizing revocation decision without hearing in certain circumstances). In the Parole Commission’s view, Edwards was then reparoled to special, as opposed to regular parole, for what is now the fourth time—a term of special parole that, without credit for street time, will expire in February 2020. If he is reparoled to regular parole instead, as Edwards insists he must be, that parole will expire in February 2017 because he will receive credit for the three years of “street time” between January 2010 and January 2013.

Whether the Commission has the authority to reimpose a term of special parole depends on the proper interpretation of the word “revoke” in the special parole statute, § 841(c). That section states that:

A special parole term imposed under this section ... may be revoked if its terms and conditions are violated. In such circumstances the original term of imprisonment shall be increased by the period of the special parole term and the resulting new term of imprisonment shall not be diminished by the time which was spent on special parole. A person whose special parole term has been revoked may be required to serve all or part of the remainder of the new term of imprisonment. A special parole term provided for in this section or section 845 of this title shall be in addition to, and not in lieu of, any other parole provided by law.

The Parole Commission originally interpreted § 841(c) to allow the reimposition of special parole following reimprisonment after a revocation. See 28 C.F.R. § 2.57(c) (“Should a parolee violate conditions of release during the Special Parole Term he will be subject to revocation on the Special Parole Term ... and subject to reparole or mandatory release under the Special Parole Term.”)(promulgated under its statutory authority, 18 U.S.C. § 4203(a)(1) (repealed 1984)).

The authority to reimpose special parole was called into question subsequently when this court and a number of others interpreted 18 U.S.C. § 3583(e)(3), the supervised release statute that replaced § 841(c) to some extent, as prohibiting a district court from reimposing a new term of supervised release after reimprisonment. See United States v. McGee, 981 F.2d 271 (7th Cir.1992) (“Once a court revokes a defendant’s supervised release and imprisons him under § 3583(e)(3), no residual term of supervised release survives revocation.”), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; see also United States v. Malesic, 18 F.3d 205 (3d Cir.1994), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Truss, 4 F.3d 437 (6th Cir.1993), 4 F.3d 437; United States v. Rockwell, 984 F.2d 1112 (10th Cir.1993), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Tatum, 998 F.2d 893 (11th Cir.1993), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Koehler, 973 F.2d 132 (2d Cir.1992), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Cooper, 962 F.2d 339 (4th Cir.1992), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Holmes, 954 F.2d 270 (5th Cir.1992), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; United States v. Behnezhad, 907 F.2d 896 (9th Cir.1990), abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795; but see United States v. O’Neil, 11 F.3d 292 (1st Cir.1993) (concluding that courts do have power to reimpose supervised release); United States v. Schrader, 973 F.2d 623 (8th Cir.1992) (same).

In McGee, we confronted the question of whether district courts could reimpose supervised release after revoking it under § 3583(e). McGee predated the addition of subsection (h) in 1994, which gives courts express authority to revoke supervised release and impose another term of supervised release following reimprisonment. See § 3583(h) (