Opinion
00 Civ. 9297 (RWS).
September 5, 2002
ANDREW OROSZ, Petitioner Pro Se, North White Plains, NY.
HONORABLE JAMES B. COMEY, United States Attorney for the Southern District of New York, Attorney for Respondents, New York, NY. By: ELIZABETH WOLSTEIN, ESQ., Assistant US Attorney, Of Counsel.
O P I N I O N
Petitioner Andrew Orosz ("Orosz") has filed pro se for the issuance of a writ of habeas corpus under 28 U.S.C. § 2241, naming as respondent the United States of America and the United States Chief Probation Officer Chris J. Stanton (collectively the "Respondents").
For the reasons set forth below, the petition is denied.
Prior Proceedings
In 1983, Orosz and a co-defendant were tried in the Southern District of New York on a twenty-five count indictment for crimes arising out of an arson-for-profit scheme in the South Bronx. See Orosz v. United States, No. 87 Civ. 6856 (KC), 1988 WL 61943, at *1 (S.D.N.Y. June 6, 1988). They were charged with violations of RICO, the explosive and firearm statutes, and mail and wire fraud. After a two-week jury trial, Orosz was convicted on March 11, 1983 on all counts. Id. On May 18, 1983, Orosz was sentenced to a maximum of fourteen years imprisonment. Id. The Second Circuit affirmed Orosz's conviction in a summary order, Orosz, 742 F.2d 1442 (2d Cir. 1983).
The criminal case giving rise to the instant petition began shortly after Orosz's March 1983 conviction. On July 23, 1983, in a criminal complaint filed in the Southern District of New York, Orosz was charged with violating 18 U.S.C. § 844(i) (arson) and 1512 (tampering with a witness). An indictment was filed on August 5, 1983, and the case was assigned to this Court. A superseding information was filed on March 22, 1984. The same day, Orosz entered a guilty plea to the two counts charged in the criminal complaint.
On the basis of his guilty plea, Orosz was sentenced on January 28, 1986 to a five-year term of imprisonment on count one, to be served consecutively with the earlier sentence. With regard to count two, the commitment order stated that the sentence was suspended "and the Defendant is placed on probation for a period of (3) (THREE) (YEARS) on Count 2 to be served upon the completion of jail term imposed on Count 1."
On September 26, 1994, Orosz was mandatorily released, which is the statutory equivalent of being released on parole. On September 1, 2000, the Parole Commission terminated his parole supervision. Based on the wording of the Commitment Order, the Probation Office determined that Orosz's three-year term of probation began when he completed parole on September 1, 2000.
See 18 U.S.C. § 4161 (repealed) ("A prisoner having served his term of terms less good-time deductions shall, upon release, be deemed as if released on parole. . . ."). Orosz's mandatory release term will therefore be referred to as parole.
Orosz filed the instant petition on November 21, 2000, arguing that he was being held illegally on the sentence of probation imposed in the Court's January 29, 1986 Commitment Order. On December 7, 2000, Chief Judge Mukasey found that it was "unclear from the face of the petition" what claims Orosz was attempting to raise and that he had not alleged what steps, if any, he had taken to exhaust his administrative remedies. Orosz v. United States, 00 Civ. 9297, Order (Dec. 7, 2000), Slip op. at 2, 3. Accordingly, the Court directed Orosz to file an amended petition "to allege facts supporting his claim and to show how he has exhausted his administrative remedies." Id. at 3. Any amended petition had to be submitted to the Pro Se Office within sixty days of the date of the Order.
Sixty-one days later, on February 6, 2001, Orosz filed the Amended Petition, alleging that Orosz exhausted his administrative remedies by bringing "the matter to the attention of his probation officer," and receiving a letter in response in January 2001. That letter stated that the Probation Office understood the wording of the Commitment Order, as interpreted in the case law, to signify that Orosz's probation was to begin upon the completion of his term of imprisonment — including any parole served — rather than upon his release from physical confinement, as Orosz claimed.
On May 14, 2002, this Court directed the Government to respond to the Amended Petition. The Government responded on July 16, 2002, at which time the petition was considered fully submitted.
Discussion
I. Standard of Review
In addressing Orosz's petition, the Court is mindful that the plaintiff is proceeding pro se and that his submissions should be held "`to less stringent standards than formal pleadings drafted by lawyers. . . .'" Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595 (1972)); see also Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993). Indeed, district courts should "read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments they suggest.'" McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, the Court is also aware that pro se status "`does not exempt a party from compliance with relevant rules of procedural and substantive law." Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (quotations omitted).
II. Parole Constitutes Part of Jail Term
The Government argues that the petition should be denied because the Commitment Order indicates that Orosz's term of probation began when his parole — and thus his term of imprisonment — ended on September 1, 2000.
"The intent of the sentencing court must guide any retrospective inquiry into the term and nature of a sentence." United States v. Taylor, 47 F.3d 508, 511 (2d Cir. 1995) (quoting United States v. Einspahr, 35 F.3d 505, 507 (10th Cir. 1994)). This Court sentenced Orosz in 1986. As a result, this Court has intimate knowledge of its intent in 1986, and that intent was that the probation term should begin after the completion of both jail and parole time.
A case decided a little more than one year after Orosz was sentenced reveals the Court's belief that parole is considered part of a sentence, and that probation should follow after its completion. In United States v. Gibbs, No. 82 Cr. 0028, 1987 WL 17935 (S.D.N.Y. Sept. 25, 1987), the petitioner had been sentenced to three years' incarceration on Count I of the indictment, and three years of probation on the other four counts. "The terms of probation were to begin at the completion of the sentence on the Count One." Id. at *1. Gibbs was paroled on February 7, 1986, but the Court specifically noted that his probationary period began at the end of his parole supervision, on May 15, 1986, rather than at the time he left prison. Id.
This interpretation is in keeping with authorities from other Circuits. E.g., United States v. Flynn, 49 F.3d 11, 14 (1st Cir. 1995) ("[T]he most natural reading of unadorned language imposing a probation term consecutive to a sentence on another count delays the commencement of probation until the entire previous sentence, including any parole, has been completed."); Einspahr, 35 F.3d at 505, 507 ("[U]nless the sentencing court specifically indicates that a consecutive sentence of probation begins at a prisoner's release from custody or confinement, the default assumption is that the full term of the earlier sentence must be completed before the probation period commences."); United States v. Chancy, 695 F.2d 1275, 1277 (11th Cir. 1982) (defendant had not yet begun probation when parole violator warrant was issued "ten days before [his] sentence of imprisonment and terms of parole were to expire"). The Einspahr Court explained that "[t]he confinement period and any subsequent period of parole supervision are best understood as two parts of a single indivisible sentence." 35 F.3d at 507.
This interpretation is also in keeping with the sentencing regime that existed when Orosz was sentenced in 1986. Under the mandatory release scheme then in place, parole was inevitable for nearly all federal defendants sentenced to a term of imprisonment, as long as they behaved themselves. See 18 U.S.C. § 4161, 4163 (for sentences other than life, establishing mandatory reduction in sentence for good behavior; prisoner given early release on such basis to be "deemed as if released on parole"). Armed with the knowledge that Orosz was likely to be paroled, the Court considered that parole to be part of the jail term. If this Court had intended Orosz's probation to begin immediately at the end of his confinement, as opposed to the end of his jail term (meaning both confinement and any probationary period), it would have said so expressly. E.g., United States v. King, 990 F.2d 190, 191, 192 (5th Cir. 1993) (where probation "to commence upon defendant's release from custody," probation commenced upon "release from physical custody in federal prison"); United States v. Laughlin, 933 F.2d 786, 789 (9th Cir. 1991) (where probation to "begin upon [defendant's] release from prison," probation began when defendant "walked out the prison door").
As a result, Orosz's probation began on September 1, 2000, when his term of parole ended, and his petition is denied.
As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see also United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). The Court certifies pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).
Conclusion
For the foregoing reasons, Orosz's petition is denied.
It is so ordered.