Ward v. United States Parole Commission

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 24, 2007

Charles R. Fulbruge III
No. 06-50234 Clerk
Summary Calendar

EDWARD J. WARD,

Petitioner-Appellant,

versus

UNITED STATES PAROLE COMMISSION,

Respondent-Appellee.

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Appeal from the United States District Court
for the Western District of Texas
No. 1:05-CV-176
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Before DAVIS, SMITH, and OWEN, Circuit Judges.

PER CURIAM:*

Edward Ward appeals the denial of his petition for a writ of

mandamus. Ward, who was sentenced in October 1983 to, inter alia,

a 15-year term of special parole, claims that the United States

Parole Commission (“USPC”) terminated its jurisdiction over him by

issuing a certificate of discharge in May 2000, while he was on

regular parole. He challenges the USPC’s continued exercise of

jurisdiction, including the issuance of a violator’s warrant in

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 06-50234
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November 2000.

Ward has moved to supplement the record on appeal. His motion

is granted.

A term of special parole “is an additional period of supervi-

sion which commences upon completion of any period on parole or

mandatory release supervision from the regular sentence; or if the

prisoner is released without supervision, commences upon such re-

lease.” 28 C.F.R. § 2.57(a). If a parolee is granted early

termination of regular parole pursuant to 28 C.F.R. § 2.43, “the

Special Parole Term commences to run at that point in time.” Id.

“Early termination from supervision from a Special Parole Term may

occur as in the case of a regular parole term, except that the time

periods considered shall commence from the beginning of the Special

Parole Term.” Id.

A notice of discharge issued by mistake does not estop the

USPC from acting on a violator’s warrant absent a showing of af-

firmative misconduct by the government and a showing that the pa-

rolee was prejudiced. See Russie v. United States Dep’t of Jus-

tice, 708 F.2d 1445, 1448-49 (9th Cir. 1983); cf. Llerena v. United

States, 508 F.2d 78, 82 (5th Cir. 1975) (stating that error by dis-

trict court does not provide immunity from a term of special pa-

role). Our review of the record reveals no indication that the

USPC considered early termination of Ward’s 15-year term of special

parole; indeed, under the governing regulations, the USPC could not

validly grant early termination of a mandatory term of special pa-
 No. 06-50234
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role where, as here, such a term had yet to commence. See 28

C.F.R. § 2.57(e).

At most, the record indicates a mistake in the issuance of the

certificate of discharge, which did not prejudice Ward, who has ad-

mitted that he was unaware of the certificate. In view of the

foregoing, the district court did not abuse its discretion in deny-

ing mandamus relief on this claim. See United States v. Denson,

603 F.2d 1143, 1146 (5th Cir. 1979).

Ward, who contends that the violator’s warrant was validly ex-

ecuted in December 2000, argues that the USPC denied him due pro-

cess because it failed to hold a revocation hearing following exe-

cution of the warrant. Ward concedes in his reply brief, however,

that a revocation hearing was conducted by the USPC on April 11,

2006, and he does dispute the district court’s determination that

he received credit for the time served between his arrest and his

conviction on money laundering charges in 2001. Accordingly,

Ward’s demand for mandamus relief in the form of a revocation hear-

ing and sentence credit is moot. See Musgrave v. Arnow, 497 F.2d

111, 111 (5th Cir. 1974).

AFFIRMED; MOTION TO SUPPLEMENT THE RECORD GRANTED.