Unpublished Disposition, 935 F.2d 275 (9th Cir. 1990)

MEMORANDUM^** 

In these consolidated appeals, Lennal Khabir Shabazz appeals pro se the district court's denial of his 28 U.S.C. § 2241 habeas corpus petition, which the district court construed as a Sec. 2255 motion, and the denial of his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

Shabazz is serving a seven year sentence for interstate transportation of forged securities. He was committed to federal prison on February 25, 1982. On October 28, 1982, Shabazz escaped from federal custody and was not returned until January 9, 1985. Thereafter, the United States Parole Commission ("Commission") extended his maximum prison term to October 1, 1990.

On November 4, 1988, Shabazz was released from federal custody with statutory and good time deductions pursuant to 18 U.S.C. § 4163. At the time of his release, Shabazz was given a certificate of mandatory release which informed him that he was being released "as if on parole" pursuant to 18 U.S.C. § 4164. Shabazz refused to sign the certificate. Shabazz was required to serve under parole supervision until April 4, 1990.

Shabazz violated the terms of his parole on several occasions, and on June 21, 1989, the Commission issued a warrant for his arrest. Shabazz was released by state prison officials to the custody of the U.S. Marshal's Service on August 29, 1989. A parole revocation hearing was held and on December 20, 1989, the Commission revoked Shabazz's parole. This decision was upheld by the National Appeal Board on June 20, 1990.

* A challenge to the legality of a sentence is properly brought under 28 U.S.C. § 2255. United States v. Giddings, 740 F.2d 770, 772 (9th Cir. 1984). A challenge to the manner of execution of a sentence is properly brought under 28 U.S.C. § 2241. Id. Because Shabazz challenges the manner of execution of his sentence rather than the legality of his sentence, the district court erred in construing the petition as a section 2255 motion. Nevertheless, any error is harmless because the district court did not err in its consideration of the merits.

Shabazz contends that his seven year sentence imposed by the district court on December 7, 1981 expired on December 7, 1988 and consequently, the Commission had no jurisdiction over him at the time of his parole violations. As a result, Shabazz argues, he is now being detained illegally beyond the time period of his sentence. This contention lacks merit.

The computation of a federal sentence is governed by 18 U.S.C. § 3568 which provides that " [t]he sentence of imprisonment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such credit." Under section 3568, the time elapsing between escape and retaking contributes nothing to the service of a sentence. 18 U.S.C. § 3568; In re Garmon, 572 F.2d 1373, 1375 (9th Cir. 1978).

Here, Shabazz's argument fails to account for the 805 days he spent on escape status. Because Shabazz could not receive credit for the time spent on escape, he was still on parole at the time of the subsequent violations. See In re Garmon, 572 F.2d at 1375.¹  Thus, the Commission had jurisdiction over him at the time of his parole violations.

II

Shabazz also contends that the Commission lacked jurisdiction over him because he was not released on parole. To support this contention, Shabazz relies on the fact that he never signed the certificate of mandatory release. This contention lacks merit.

"A prisoner having served his term or terms 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. § 4164. Prisoners released from a penal institution after reduction of their sentences for good conduct are within the jurisdiction of the Commission to the same extent as though they had been released on parole. See Zerbst v. Kidwell, 304 U.S. 359, 362-363 (1938).

When Shabazz was released from federal custody on November 4, 1988, he remained under the Commission's jurisdiction as a parolee. 18 U.S.C. § 4164; Zerbst, 304 U.S. at 362-363. Shabazz's refusal to sign a release agreement does not affect the jurisdiction of the Commission or the conditions of his release under 18 U.S.C. § 4164. See id. Accordingly, the district court properly dismissed the claim.

III

Shabazz also contends that his right to due process was violated when the Commission failed to hold a preliminary hearing to determine whether there was probable cause to hold him prior to the final revocation hearing. Shabazz also contends that he has been prejudiced by the thirteen day delay in holding the parole revocation hearing because he lost twelve to twenty days of good time credit. These contentions lack merit.

The conviction of any criminal offense while on parole constitutes probable cause to hold the parolee for a parole revocation hearing. 18 U.S.C. § 4214(b) (1). A parole violator who is summoned or retaken by warrant shall receive a revocation hearing within ninety days of the date of retaking. 18 U.S.C. § 4214(c). To state a constitutional claim, a petitioner must show that the delay in the parole revocation hearing was both unreasonable and prejudiced his rights. Hopper v. United States Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983).

While on parole, Shabazz was arrested and subsequently convicted of telephone fraud, a felony under California state law. Therefore, probable cause existed to hold Shabazz without a preliminary hearing, pending the final revocation hearing. Furthermore, Shabazz has failed to present evidence suggesting that he would have received good time credit absent a delay in holding a revocation hearing. Moreover, the thirteen day delay was not unreasonable. Accordingly, the district court properly dismissed the claim.² 

IV

Shabazz also contends that the district court erred in failing to grant his "First Request For Admissions from Respondents" filed on November 14, 1989. This contention lacks merit.

The Supreme court has held that Rule 33 of the Federal Rules of Civil Procedure is not applicable to habeas corpus proceedings. Harris v. Nelson, 394 U.S. 286, 290 (1969). Nevertheless, "a district court, confronted by a petition for habeas corpus which establishes a prima facie case for relief, may use or authorize the use of suitable discovery to elicit facts necessary to help the court to dispose of the matter as law and justice require." Id.

Despite its title, the document filed by Shabazz appears to be a set of interrogatories pursuant to Fed. R. Civ. P. 33. As such, Shabazz is not entitled to answers to the interrogatories. Harris, 394 U.S. at 290. Furthermore, the circumstances of this case do not warrant the use of discovery. Id. Accordingly, there was no error in the government's failure to answer Shabazz's "request for admissions." See id. 394 at 290, 297.

AFFIRMED.