No. 96-1253, Kalady v. Booker

Attachments (Recommendation of United States Magistrate Judge; Order of Dismissal) are not available electronically.* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 12/27/96 TENTH CIRCUIT

_____________________ JOSEPH M. KALADY, Petitioner-Appellant,
v. JOE W. BOOKER, Warden and UNITED STATES PAROLE COMMISSION, Respondents-Appellees. No. 96-1253 (D.C. No. 95-Z-1655) (D. Colorado)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and KELLY , Circuit Judges.

_____________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Kalady is a federal inmate. Having received a state conviction and a federal parole, he brought this habeas corpus actio n claiming entitlement to credit for certain jail time served in the Indiana State P enitentiary and further claiming the Parole Commission incorrectly classified his of fense behavior. The district court denied the petition for writ of habeas corpus and dismissed the action without prejudice. Mr. Kalady, who has paid the appropriate fee, appeals this decision. We reverse in part, affirm in part, and remand.
A chronology of the significant events is helpful i n understanding the issues:
In 1982, Mr. Kalady pled guilty in federal court to charges of conspiracy and bank theft. He was sentenced to concurrent ter ms of five years on the conspiracy count and ten years on the bank theft co unt. In a companion case, Mr. Kalady pled guilty to the interstate transportation of money, knowing it was stolen. He was sentenced to a ten-year term to run concurrently with his other federal sentences.
In 1983, Mr. Kalady pled guilty to interstate trans portation of funds, knowing the funds had been taken from a bank by fraud. He was sentenced to a1 Black's Law Dictionary defines nunc pro tunc as " [a] phrase applied to

acts allowed to be done after the time when they sh ould be done, with a retroactive effect, i.e. , with the same effect as if regularly done. Nunc pro tunc entry is an entry made now of something actually pr eviously done to have effect of former date." Black's Law Dictionary964 (5th ed. 1981).
-3- five-year term to run consecutively to his other fe deral sentences. Thus, at this point his total federal sentence was fifteen years.
At this time in 1983, Mr. Kalady was serving a thirty-four-year sentence in an Indiana State Prison. Mr. Kalady's 1982 federal sentences were to run concurrently with his state sentence. Consequently , after his federal sentencings, Mr. Kalady was serving both his federal and state s entences in the Indiana facility.
On August 8, 1986, the United States Parole Commiss ion issued a certificate of parole nunc pro tunc 1 to Mr. Kalady, paroling him from his federal term to the Indiana state detainer. The certificate was backdated to March 2, 1986, but Mr. Kalady did not receive and sign the certificate unt il September 10, 1986. There was no change in Mr. Kalady's physical custody.-4-

On December 23, 1987, Indiana released Mr. Kalady o n appeal bond without notifying the federal authorities. Upon hi s release by the state, Mr. Kalady failed to report to his United States Probat ion Officer for supervision until July 28, 1988.
In 1988, Mr. Kalady was indicted in federal court i n Wyoming for conspiracy, mail fraud, wire fraud, and aiding and abetting. He was arrested and released on an unsecured bond. The district court issued a bench warrant for Mr. Kalady's arrest after he failed to appear for trial
.
In 1989, the United States Parole Commission also i ssued a warrant for Mr. Kalady's arrest charging him with a law violation ( the district of Wyoming federal charges), leaving his parole district without permi ssion, and failure to appear for trial. Mr. Kalady was arrested in November 1989.
In 1990 Mr. Kalady received a parole revocation hea ring. The information submitted to the panel reflected Mr. Kalady conspir ed to commit various fraudulent activities in order to participate in th e profit from purchases of bankrupt properties and assets with a value of appr oximately $15 million. The panel recommended Mr. Kalady's offense be rated cat egory six severity as it-5-

involved a conspiracy to commit fraud of over one m illion dollars. The panel also recommended the forfeiture of Mr. Kalady's "street time" from the date of his release from state custody on December 23, 1987, until July 28, 1988, the date Mr. Kalady reported to his Probation Officer. In a1991 special reconsideration hearing the panel recommended forfeiture of all of the time Mr. Kalady had spent on federal parole, from March 2, 1986 (the date of parole as provided in the certificate of parole nunc pro tunc) to November 8, 1989 (the date the Parole Commission arrest warrant was executed).
Mr. Kalady was subsequently convicted in the Distri ct of Wyoming for failure to appear and was sentenced to a forty-mont h term of imprisonment to run consecutive to his prior federal sentences. The le ngth of this sentence was based, in part, on a finding by the sentencing judge that Mr. Kalady intended to defraud his victims of $34,000.
Mr. Kalady then filed the present habeas petition c ontending: (1) he is entitled to "jail time credit" from the date of the writing of the initial Parole Certificate (March 2, 1986) until his release from the Indiana State Prison (December 23, 1987), or alternatively, he claims he is entitled to credit from the date on his Certificate of Parole (March 2, 1986) u ntil the date he received and2Although Congress repealed 18 U.S.C. § 4210(b)(2) in 1987, it is

applicable to Mr. Kalady because he was sentenced i n 1982 and 1983.
-6- signed his Certificate of Parole (September 10, 198 6); and (2) Mr. Kalady claims the Parole Commission was bound by the Wyoming District Court's finding of an intended loss of $34,000 rather than their independ ent finding of $15 million.
The district court found Mr. Kalady's federal parol e began March 2, 1986, the date stated on the certificate of parole nunc p ro tunc, and further concluded Mr. Kalady was not entitled to credit for "jail tim e" he spent in state custody from March 2, 1986, to December 23, 1987. Further, the district court concluded the Parole Commission is entitled to take into account factors which could not be considered by a court of law and has the power to m ake its own independent finding regarding the extent of a parolee's offense s. The district court thereupon denied the petition and dismissed the action without prejudice.
Mr. Kalady appeals this decision. We find that, al though Mr. Kalady is not entitled to credit for time he spent on parole, see 18 U.S.C. § 4210(b)(2) (1994) 2 ; 28 C.F.R. § 2.52(c)(2); Harris v. Day , 649 F.2d 755, 760 (10th Cir. 1981), his parole did not begin until September 10, 1986, not March 2, 1986. Accordingly, he is entitled to 192 days of federal jail time cre dit. The authorities cited by both-7-

the magistrate and district court judges as support ing their contrary holding in fact support our position. First, the plain langua ge of 28 C.F.R. § 2.29(a) (1996) states: "A grant of parole shall not be deemed to be operative until a certificate of parole has been delivered to the prisoner."
The cited cases, with one possible exception, also support our holding. Ross v. Beeler , referencing a prospective presumptive parole date , expressly states: " Under 28 C.F.R. § 2.29 a grant of parole does not o perate until the parole certificates are delivered to the prisoner , and, until then, the government has a substantial interest in whether a parole gran t will be rescinded." No. 88-C5507, 1989 WL 55056, at *2 (N.D. Ill. May 12, 1989) (emphasis added) (not cited by the district court). Parness v. United States Parole Comm'n , 488 F. Supp. 100, 102 (S.D.N.Y. 1980), states: if a prisoner granted an effective date of parole v iolates any of the rules of the prison facility or engages in new crim inal activity prior to the delivery of the certificate of parole , "the Regional Commissioner may reopen the case and retard the par ole date for up to 60 days without a hearing, or schedule a resciss ion hearing ...." (quoting 28 C.F.R. § 2.34(a)) (emphasis added). Th e reference to retardation of the parole date implies that up until receipt of th e parole certificate, the prisoner is not yet on parole, and the referenced "rescissio n hearing" may differ from a parole "revocation hearing." See Drayton v. McCall , 584 F.2d 1208, 1209 (2d-8-

Cir. 1978). The cited footnote in Christopher v. United States Bd. of Parole , 589 F.2d 924, 925 n.1 (7th Cir. 1978), connotes a simil ar implication. The court, quoting 28 C.F.R. § 2.29(a), refers to the prisoner 's grant of parole as "inchoate." Id. Inchoate means "[i]mperfect; partial; unfinished; b egun, but not completed." Black's Law Dictionary686 (5th ed. 1981). Although the cited footnote i n Drayton , 584 F.2d at 1216 n.14, may provide tenuous support to the magistrate and district court judges' holding, it is just that-- tenuous.
Moreover, two additional cases support our holding. In an unpublished decision, the Sixth Circuit stated: [A] federal right to parole does not exist in this case. Under 28 C.F.R. § 2.29(a)(b)(c), a federal prisoner is not vested with a right to parole until he receives a certificate of parole . [The plaintiff prisoner] was not issued a parole certificate priorto the rescission of his presumptive parole date. Therefore, he was notdeprived of any liberty interest [because he had no constitutional right to parole.] Smith v. Gluch , 880 F.2d 1322, 1979 WL 87479, at *1 (6th Cir. 198 9) (table case) (emphasis added). The clear implication is that a prisoner does not become a parolee, or even obtain a liberty interest in parol e, until the prisoner receives a certificate of parole. The second case, Tippins v. Luther , 869 F. Supp. 331 (W.D. Pa. 1994), also clearly presumes receipt of a certi ficate of parole is necessary for parolee status. "Since [the prisoner] escaped in M arch of 1991, he did not receive a certificate of parole when his 'effective date' [ of parole] of June 4, 1991 arrived.-9-

Thus, he never became a parolee ." Id. at 334 (emphasis added). Notably, the court later stated: " Since [the prisoner] was not paroled and escaped wh ile he was still a prisoner awaiting parole, the time he s pent in the county jail after he was arrested for escape was counted toward his fede ral sentence ." Id. at 335 (emphasis added).
Although we find the government's arguments, as App ellee, well-reasoned and persuasive, they fail to cite supporting legal authority. Therefore, we decline to adopt their espoused position.
Accordingly, we reverse the district court in regar d to this issue, and order Mr. Kalady be credited 192 days jail time against h is 1982 and 1983 federal sentences. We do, however, affirm the judgment of the district court as to the remainder of the issues Mr. Kalady raises on appeal . We do so for substantially the same reasons set forth by the magistrate judge in his Recommendation of October 5, 1995, and the district court in its Orde r of Dismissal of May 14, 1996, copies of both being attached hereto.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with our opinion.-10- Entered for the Court: WADE BRORBY United States Circuit Judge