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April 24, 1997

ROBERT L. FULTZ, Petitioner,
DONNA STRATMAN, Warden, Metropolitan Correctional Center, San Diego, California, Respondent,

The opinion of the court was delivered by: GONZALEZ

 Robert L. Fultz, a person in federal custody, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. *fn1" His petition raises the question whether the former "special parole" statute, 21 U.S.C. § 841(c), permitted the United States Parole Commission to impose a new term of special parole following revocation of a previous term. To date, the Ninth Circuit has not addressed this question, four other circuits have answered it in the negative, and two other circuits have answered it in the affirmative.


 Fultz was convicted in this District of conspiracy to possess a controlled substance and possession of a controlled substance with intent to distribute. On April 10, 1978, he was sentenced to serve five years in custody, to be followed by ten years of special parole. He was released on regular parole on October 15, 1981.

 On April 16, 1984, Fultz began serving his ten-year special parole term, which was to last until April 15, 1994. On August 3, 1987, the United States Parole Commission found that Fultz had violated the conditions of his special parole by leaving the district without permission, failing to report a change of residence, and failing to submit supervision reports. Fultz was credited with his time spent on special parole and released to special parole on February 21, 1988.

 On February 27, 1990, the Parole Commission again found that Fultz had violated the conditions of his special parole, this time by passing a check with insufficient funds and committing petty theft. This time, Fultz did not receive credit for his "street time," including the period from April 16, 1984, to April 22, 1987 (prior to the first revocation), and from February 22, 1988, to December 11, 1989 (between the first and second revocations). Fultz was released on April 11, 1991, to a term of special parole set to end on February 10, 1999.

 The Parole Commission on August 24, 1992, found that Fultz had violated the conditions of his special parole a third time. The "Notice of Action" states that the special parole is revoked and that "none of the time spent on special parole shall be credited." Fultz was charged with battery, excessive use of alcohol, violation of a special condition regarding alcohol, and failure to report to his parole officer. He was released again on November 18, 1994, to a term of special parole set to end on March 19, 2000.

 On June 10, 1996, the Parole Commission issued a summons for Fultz to appear on charges of violating a special condition, use of dangerous and habit-forming drugs, association with a person having a criminal record, possessing an open container of alcohol, failing to report a change of employment and falsifying supervision reports. The Parole Commission issued a warrant for Fultz's arrest on September 9, 1996. Fultz was arrested on September 29, 1996, and confined at the Metropolitan Correctional Center in San Diego.


 Fultz filed the instant petition on October 18, 1996, contending that he is being detained unlawfully because the Parole Commission lacked authority to release him to special parole in 1987 after revoking his special parole and incarcerating him for his first violation. He argues that instead, the Parole Commission had authority only to either incarcerate him for the remainder of his special parole term or release him to regular parole. He contends that in either event, his ten-year sentence would have concluded by now, and that this Court must therefore order his release. The government opposes the petition on the grounds that (1) Fultz has failed to exhaust his administrative remedies and (2) the Parole Commission properly imposed the subsequent terms of special parole.

 A. Exhaustion of Administrative Remedies

 The government argues that Fultz has failed to exhaust his administrative remedies because he did not raise this claim in his appeals from the Parole Commission's second and third revocations of his special parole. Fultz acknowledges that he has not challenged the Parole Commission's authority to impose a subsequent term of special parole in his appeals to the Parole Commission. However, he argues that such an appeal would be futile, because the Parole Commission itself promulgated the regulation at issue and has resisted other court challenges to the regulation's validity.

 Several courts have waived the administrative exhaustion requirement for petitioners raising the issue presented here. In Evans, it was unclear whether the petitioners had presented their claims to the Parole Commission. Evans, 78 F.3d at 264. However, the Parole Commission had not raised the exhaustion requirement, and the Seventh Circuit declined to raise it sua sponte. Id. The court also noted that the petitioners' argument did not "depend on factual nuances." Id. In any event, "nothing the Commission could do, short of repealing 28 C.F.R. § 2.57(c), would aid the petitioners, but the process would require them to spend additional time in prison." Id.

 In the Ninth Circuit, courts in the District of Oregon and this District have held that petitions similar to this one present extraordinary circumstances. In Nordling, Judge Hogan explained, "The fact that the only body of administrative review is the body responsible for drafting and administering the regulations at issue in this proceeding makes this a 'unique circumstance' under which the administrative exhaustion requirement may be waived." Nordling, 958 F. Supp. 498, 1997 WL 94231, *2. Similarly, Judge Moskowitz has written that "not only would an appeal by the petitioner to the Appeals Board likely be futile, given the consistent posture of the Commission in litigation across the country, . . . but if the petitioner's argument is credited, he has now been detained past the expiration of his six-year term of imprisonment." Thomas v. Stratman, No. 96-2094, at 3 (S.D. Cal., Feb. 21, 1997).

 The instant case presents the same situation. Fultz's petition presents a question of law, namely the validity of 28 C.F.R. § 2.57(c). The determination of this question does not depend on a resolution of factual issues that would be assisted by the development of an administrative record. The detention does not result from an alleged error in the administrative process that the Parole Commission should have the opportunity to correct. It also appears that there is little likelihood of the Parole Commission granting the relief that Fultz seeks, in view of the fact that it promulgated the regulation and has consistently maintained the position that the regulation is lawful. Finally, Fultz would be severely prejudiced were he required to pursue a likely futile appeal before the Parole Commission at this time, when, under the reasoning of the majority of courts, his proper custodial term has expired. Accordingly, the Court finds that Fultz has demonstrated extraordinary circumstances justifying waiver of the administrative exhaustion requirement.

 B. The Special Parole Statute

 Special parole is a type of post-release supervision that antedates the United States Sentencing Guidelines. The imposition of special parole was mandatory for persons convicted of certain drug offenses. Former 21 U.S.C. § 841(c) provided,

A special parole term . . . may be revoked if its terms and conditions 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.

 Although the Sentencing Reform Act of 1984 replaced special parole with supervised release, persons sentenced prior to the change are still subject to the previous law. Evans v. United States Parole Comm'n, 78 F.3d 262, 263 (7th Cir. 1996).

Three things are "special" about special parole: first, special parole follows the term of imprisonment, while regular parole entails release before the end of the term; second, special parole was imposed, and its length selected, by the district judge rather than by the Parole Commission; third, when special parole is revoked, its full length becomes a term of imprisonment. In other words, "street time" does not count toward completion of special parole; as a rule, ...

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