Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 1289 (9th Cir. 1987)

Preston PARNELL, Petitioner-Appellant,v.UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 86-6053.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 1988.Decided July 14, 1988.

Before FLETCHER, FARRIS and PREGERSON, Circuit Judges.


MEMORANDUM* 

Preston Parnell appeals pro se the district court's dismissal of his writ of habeas corpus. Parnell alleges that he was wrongly subjected to the U.S. Parole Commission's supervision after he was mandatorily released for good conduct six years before expiration of his maximum sentence. We affirm.

BACKGROUND

Parnell served nine and a half years of a 16 year sentence for bank robbery. On January 4, 1985, he was mandatorily released pursuant to 18 U.S.C. §§ 4161-4164, having earned a total of 2464 days' reduction for good conduct and meritorious good conduct. The certificate of mandatory release included the condition that he participate in a drug treatment program and submit to urinalysis testing upon request.

On February 21, 1985, Parnell's parole officer requested revocation of parole, alleging that he failed to submit to drug treatment and that he was hostile to supervision. At a revocation hearing on June 4, 1985, the Parole Commission opined that Parnell had violated the terms of parole, but did not revoke parole because Parnell, after consultation with his appointed counsel, appeared willing to conform to Commission supervision.

Parnell filed this habeas petition on September 23, 1985. The district court dismissed the petition on May 19, 1986. Parnell timely appealed.

DISCUSSION

Parnell's petition alleges that the Parole Commission lacks supervisory authority over mandatory releasees. Specifically, it alleges that the Commission held a revocation hearing on false grounds, and that it lacked authority to force Parnell to sign, upon threat of reincarceration, the certificate of mandatory release and authorization for admission to a drug treatment program. In addition, the petition asserts that because good time credits, once earned, may not be taken away, any reincarceration would be an illegal extension of Parnell's sentence. It also alleges the Commission is prejudiced against Parnell.

This court reviews the denial of a Sec. 2255 petition de novo. Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987).

I. Parole Commission Authority over Mandatorily Released Prisoners.

Parnell asserts that he is not subject to the Parole Commission's supervisory authority because he was released from prison under the mandatory release provisions, 18 U.S.C. §§ 4161-41641 , rather than released on parole. This argument lacks merit.

A prisoner who accumulates good-time credit "shall be released at the expiration of his term of sentence less the time deducted for good conduct." 18 U.S.C. § 4163. Release, however, is conditional: a prisoner released pursuant to Sec. 4163 "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." Id. Sec. 4164 (emphasis added). Prisoners released mandatorily are subject to the Parole Commission's supervision exactly as if they had been paroled. Arciniega v. Freeman, 439 F.2d 776, 777 (9th Cir. 1971); Godoy v. United States Bd. of Parole, 345 F. Supp. 1292, 1294 (C.D. Cal. 1972); United States v. Bonanno, 452 F. Supp. 743, 757 (N.D. Cal. 1978), aff'd 595 F.2d 1229 (9th Cir. 1979); see also Lazard v. United States, 583 F.2d 176, 177 (5th Cir. 1978).

Parnell also argues that the Commission lacks authority to revoke the good time credits he earned while in custody. Were this true, violation of parole could bear no sanction and any reincarceration of Parnell would be illegal. This is meritless.

Title 18 U.S.C. § 4165 provides that " [i]f during the term of imprisonment a prisoner commits any offense or violates the rules of the institution, all or any part of his earned good time may be forfeited." "Term of imprisonment" includes time on parole. Raines v. United States Parole Comm'n, 829 F.2d 840, 844 (9th Cir. 1987).

II. Whether the Parole Commission abused its discretion in setting the conditions of Parnell's release.

This court has limited review of the Commission's parole decisions. We may override its judgment only if the Commission has abused its discretion. Berg v. United States Parole Comm'n, 735 F.2d 378, 379 (9th Cir. 1984); Torres-Macias v. United States Parole Comm'n, 730 F.2d 1214, 1216 (9th Cir. 1984).

Parnell's claim that his revocation hearing was held on false grounds is without merit. On March 19, 1985 a summons was issued which charged Parnell with violating the drug treatment condition of his release, and on June 4, 1985 the Commission held a hearing. Parnell's claim, therefore, is an implicit argument that conditioning his release upon participation in the drug treatment program was improper.

The Parole Commission may impose upon parolees conditions of parole to the extent that such conditions are reasonably related to the nature and circumstances of the offense and the history and characteristics of the parolee. 18 U.S.C. § 4209(a). Parole conditions must be sustained on review unless they are arbitrary and capricious; i.e., unless there is no rational basis in the record for them. Bagley v. Harvey, 718 F.2d 921, 925 (9th Cir. 1983).

The record shows that the Commission had evidence that Parnell had frequently used drugs prior to his incarceration and that the money he obtained from bank robberies had often been spent on drugs. The Commission could reasonably have concluded that a drug treatment program could help prevent recidivism, and thus that Parnell's demonstrated reluctance to participate in the program necessitated a revocation hearing.

B. Refusal to Sign Mandatory Release.

Parnell contends that the Commission unlawfully forced him to sign the Certificate of Mandatory Release at the June 4, 1985 revocation hearing under threat of imprisonment.

The Commission indisputably has the authority to revoke parole if a parolee refuses to consent to parole supervision. "The enforcement leverage that supports the parole conditions derives from the authority to return the parolee to prison to serve out the balance of his sentence if he fails to abide by the rules." Morrissey v. Brewer, 408 U.S. 471, 478 (1971). Because drug treatment was a legitimately imposed condition of Parnell's release, the Commission did not abuse its discretion in requiring him to sign the necessary documents for admission to the Drug Program Plan and the Release of Confidential Information Agreement.

C. Parole Commission Prejudice against Parnell.

Parnell alleges in his complaint that the Parole Commission is prejudiced against him, as evidenced by the fact that his release had to come about through accumulation of good time credits rather than by a parole grant from the Commission (which thrice denied parole during his incarceration), and by the Commission's addition of the drug treatment condition to his Release Certificate. The magistrate correctly called the allegation "conclusory". Parnell's additional factual assertions regarding prejudice, in addition to having been presented for the first time on appeal, fail because they lack support in the record and because three of them concern events subsequent to the appeal of this petition (the "dirty" urinalysis tests, the failure to notify Parnell of the arrest warrant, and the untimely notice of the result of a parole revocation hearing).

We dismiss Parnell's motion for injunctive relief filed August 13, 1987 for lack of jurisdiction. The events giving rise to the motion all occurred subsequent to the district court's denial of the habeas petition that is the subject of this appeal. Furthermore, the motion acknowledges that the claims arising from these events are presented in a separate habeas petition (Case No. CV 874270-MRP(P)) and motion for injunctive relief filed in the District Court for the Central District of California. Those claims are not properly before this court until there is a district court final order and appeal of that petition and its accompanying injunction. 28 U.S.C. § 1291.

CONCLUSION

The district court's dismissal of Parnell's petition for writ of habeas corpus is AFFIRMED. The motion for injunctive relief is DISMISSED for lack of jurisdiction.

 *

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

 1

These four provisions have been repealed effective November 1, 1987. Act of Oct. 12, 1984, Pub. L. No. 98-473, Title II, Secs. 218(a) (4), 235, 98 Stat. 2027, 2031, as amended by Act of Dec. 26, 1985, Pub. L. No. 99-217, Sec. 4, 99 Stat. 1728