Gеorge H. EDWARDS, Jr., Petitioner-Appellant, v. James N. CROSS, Warden, & U.S. Parole Comm‘n, Respondents-Appellees.
No. 14-2205.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 8, 2015. Decided Sept. 16, 2015.
799 F.3d 869
403 (2009) (citing Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)). Because the state court applied a contrary standard, its conclusion merits no AEDPA deference. Id. at 404; see also Ruhl v. Hardy, 743 F.3d 1083, 1091 (7th Cir.2014). Instead, we make our own independent decision regarding harmless error, as if the state court had never addressed the issue. Acevedo, 572 F.3d at 404. On collateral review the Brecht standard applies: we ask whether the error “had substantial and injurious effect or influence” on the outcome of the proceeding. Id. at 403 (quoting Brecht, 507 U.S. at 623, 113 S.Ct. 1710).
We are confident that the error here had no such effect on Dansberry‘s decision to plead guilty, for largely the same reasons given by the district court. Dansberry II, at *8-9, 2013 U.S. Dist. LEXIS 159811, at *29-32. The state trial and aрpellate courts found no evidence that Dansberry would have changed his plea had he known that he faced a mandatory minimum sentence of 26 years rather than 20 years. And on habeas review, we presume that a state court‘s factual determinations are correct.
What is more, the record shows that Dansberry‘s minimum sentence had little, if any, influence on his decision. He was much more concerned about his maximum sentence; he wanted to avoid being executed. He pled guilty largely because he expected he would receive about 40 years of incarceration instead. When he did plead, he did so “blindly,” without any promise of a particular sentence, even though he had been informed that he could receive life imprisonment or even the death penalty. Ultimately, he was sentenced to 80 years in prison. It is highly unlikely, and there is no evidence in the record to suggest, that Dansberry‘s mistaken belief that his minimum sentence was 20 years rather than 26 years had any effect on his decision to plead guilty.
III. CONCLUSION
The district court‘s denial of Dansberry‘s petition for a writ of habeas corpus is AFFIRMED.
Gerald M. Burke, Attorney, Office оf the United States Attorney, Civil Division, Fairview Heights, IL, for Respondents-Appellees.
Before BAUER, MANION, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge.
George H. Edwards, Jr. appeals from the district court‘s denial of his petition for a writ of habeas corpus. See
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 parolе 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
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
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 wаs 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
But in 2007, Edwards pleaded guilty to one count of wire fraud. He was sentеnced 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);
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
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
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
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 Commissiоn 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 Commissiоn 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) (“[w]aiver is not meant as an overly technical appellate hurdle” and the nuances of a litigant‘s argu-
ments
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 viоlation, 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
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,
A special parole term imposed under this section ... may be revoked if its terms and cоnditions 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
The authority to reimpose special parole was called into question subsequently when this court and a number of others interpreted
In McGee, we confronted the question of whether district courts could reimpose supervised release after revoking it under
Looking at the text of
We thus rejected the more “flexible reading” of
abrogated by Johnson, 529 U.S. at 713, 120 S.Ct. 1795.
Several years later, we confronted the somewhat related question of whether a term of special parole revoked under
Under our holding in Evans then, Edwards should now be sеrving a term of regular, not special, parole. But Evans’ continued viability was called into question by the Supreme Court‘s decision in Johnson v. United States. As explained above, in Johnson the Court rejected McGee‘s interpretation of
The Court found further support for its “unconventional” reading in a Webster‘s dictionary definition of revoke meaning “to call or summon back.” This secondary definition of revoke suggested Congressional understanding that some of the revoked term may remain after imprisonment. Id. at 706-07. Finally, the Court observed that such a reading of revoke served the evident Congressional purpose of providing supervision to those who most needed it, chief among them, according to the Court, be-
ing
The Court also drew on the pre-Guidelines parole regime and its repeated use of the word revoke without any question that a nеw term of parole could follow reimprisonment after revocation of parole. Id. at 710-11. Indeed, the Court expressly noted that the same was true of special parole. Noting in a footnote our decision in Evans, the Court observed that some courts had concluded that reimposition of special parole after revocation of the initial term and reimprisonment was inconsistent with
According to the government, by overruling McGee‘s understanding of “revoke” in
Although the Second Circuit‘s approach is a defensible one, we believe that it overlooks several important reasons why Johnson‘s interpretation of the word “revoke” in
The Court in Johnson also pointed to another textual reason in support of its reading of revoke:
There is yet another textual reason that the unconventional interpretation of “revoke” in
We are also unconvinced that the same policy concerns that animated the Court‘s interpretation in Johnson apply to
ruary
And finally, if Johnson leaves us still uncertain as to the meaning of “revoke” in
III.
Admittedly, our conclusion in Evans was “[i]mpelled in part by United States v. McGee,” Evans, 78 F.3d at 264 (emphasis added). But our decision in Evans was also driven by the language of the former
ROVNER
CIRCUIT JUDGE