Frederick Lee Dietz v. United States Parole Commission

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
*
designation.
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0005n.06
Filed: January 2, 2008
No. 06-6443
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FREDERICK LEE DIETZ,
Petitioner-Appellant,
v.
UNITED STATES PAROLE COMMISSION,
Respondent-Appellee.
/
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF TENNESSEE
BEFORE: KEITH and CLAY, Circuit Judges; HOOD, District Judge:*
CLAY, Circuit Judge: Petitioner Frederick Lee Dietz appeals from the district court’s order
of November 2, 2006 denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C.A.
§ 2241 (West 2006). Dietz challenges the United States Parole Commission’s determination of the
length of time remaining in his term of parole. For the reasons set forth below, we AFFIRM the
judgment of the court below.
BACKGROUND

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Dietz had been convicted of using the telephone to facilitate the commission of a felony on1
April 15, 1983 in the Western District of Texas.
The portion of the warrant applicable to Dietz’s claim states: “the following parole action2
was ordered: Withdraw Warrant dated 8/7/92 and Reinstate to Supervision (inactive due to new
sentence).”
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A. Substantive Facts
On December 4, 1986, Frederick Lee Dietz was sentenced in the Southern District of Florida
to fifteen years imprisonment for conspiracy to possess with the intent to distribute cocaine in
violation of 21 U.S.C. § 846 (2000). Shortly thereafter, on December 16, 1986, Dietz was sentenced
to serve three years consecutive to his fifteen-year sentence for violating an earlier sentence of
probation. Dietz was released on parole on July 9, 1992 and was scheduled to remain under parole1
supervision until July 9, 2004.
Dietz’s criminal activities continued after his release on parole. On August 7, 1992, a parole
violation warrant was issued against Dietz for absconding from parole supervision. Dietz was
subsequently arrested for conspiracy to possess marijuana in violation of 21 U.S.C. § 846 and
sentenced in the Southern District of Texas on September 13, 1993 to 114 months of imprisonment
which was later reduced to a sixty-two-month sentence. On September 24, 1994, an amended parole
violation warrant was issued that included the conspiracy to possess marijuana charge. The August
7, 1992 parole violation warrant was withdrawn on July 28, 1997. On April 30, 1998, Dietz was2
released from prison and began a five-year supervised release period running concurrently with his
parole obligation from his December 4, 1986 sentence.

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Dietz failed to appear for supervision after his release and subsequently pleaded guilty to
possession of cocaine in Louisiana state court on October 1, 1998, an offense for which he received
a six-month sentence. As a result, Dietz’s supervised release in the Southern District of Texas was
revoked, and a twenty-seven-month supervised release violation sentence was imposed on December
16, 1998. On February 16, 2000, a parole violation warrant was issued for the period of parole that
had commenced on July 9, 1992 as a result of Dietz’s conviction in the Southern District of Florida.
Dietz attended a parole revocation hearing on March 19, 2001 after which Dietz’s parole was
revoked.
B. Procedural History
On May 15, 2001, the United States Parole Commission (“the Commission”) issued a notice
of action revoking Dietz’s parole and ordering the forfeiture of all time spent on parole. On August
31, 2001, the Commission issued a notice of action ordering that its parole violation warrant be
executed nunc pro tunc October 23, 1998. As a result Dietz was given a new parole date of July 22,
2003. On April 18, 2002, in response to Dietz’s administrative appeal, the Commission’s National
Appeals Board changed Dietz’s release date to July 23, 2002 with a period of supervised release to
end on October 22, 2010.
Dietz filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, which was
denied by the district court on October 8, 2002. Dietz challenged the jurisdiction of the Commission
over his case and the Commission’s failure to inform him of possible penalties at the revocation
hearing. Dietz v. Sanders, 100 Fed. Appx. 334 (6th Cir. 2004). We affirmed the district court’s
denial of the habeas corpus petition on March 31, 2004. Id.

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Dietz filed a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the
district court for the Middle District of Tennessee on September 21, 2005. On November 2, 2006,
the district court dismissed Dietz’s petition with prejudice. Dietz timely filed a notice of appeal to
this Court on November 10, 2006.
DISCUSSION
A. Preservation of the Issue
Dietz raised the issue of credit for the time he spent in federal custody throughout the
administrative appeals process and at the court below, preserving this issue for review. However,
the Commission argues that we should not address this issue because it was already raised in a
previous habeas proceeding. (Comn’s Br. 7.) The Commission also argues in the alternative that
Dietz’s claims should have been raised during a previous habeas proceeding, and as a result, we
should dismiss Dietz’s petition as an abuse of the writ. (Comn’s Br. 8.)
The Commission contends that 28 U.S.C. § 2244(a) (2000) allows us to decline to reach the
merits of Dietz’s claims because this Court has rendered a decision on the merits of these claims in
the disposition of Dietz’s previous habeas petition. Although habeas corpus petitions filed pursuant
to § 2241 are not subject to the strict bars on second and successive petitions imposed on 28 U.S.C.
§ 2255 (2000) habeas petitions, courts may decline to address claims brought repeatedly. 28 U.S.C.
§ 2244(a) (Judges need not hear challenges to a petitioner’s detention “if it appears that the legality
of such detention has been determined by a judge or court of the United States on a prior application
for a writ of habeas corpus, . . .”). However, § 2244(a) applies to claims that have not only been

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Although “abuse of the writ” is generally viewed as a pre-AEDPA standard, courts have3
applied this equitable principle to habeas petitions brought under § 2241 due to the discretion
allowed by 28 U.S.C. § 2244(a). Whab v. U.S., 408 F.3d 116, 119 n.2 (2d Cir. 2005) (“While the
standards for determining whether a petition ‘abuses the writ’ under the doctrine of McCleskey v.
Zant have much in common with those for determining whether a petition is ‘second or successive’
under §§ 2244 and 2255, the two doctrines are not coterminous. The fact that a petition is not
technically ‘second or successive,’ and subject to the gatekeeping requirements of §§ 2244 and 2255,
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brought by the petitioner, but have actually been heard and decided by the court. Sanders v. United
States, 373 U.S. 1, 12 (1963) (“[Section] 2244 is addressed only to the problem of successive
applications based on grounds previously heard and decided.”).
Dietz previously raised the issue of the Commission’s refusal to credit him the time he spent
on parole in the appeal of his first habeas corpus petition. Dietz v. Sanders, 100 Fed. Appx. at 337-
38. Dietz claimed that the Commission’s regulation regarding the forfeiture of “street time” (the
time spent on parole) upon parole revocation was an unreasonable interpretation of the statute
governing parole revocation. Id. at 337. This claim is distinguishable from Dietz’s present claim
that the Commission did not apply its procedures correctly in deciding his case. In addition, we
declined to reach Dietz’s “street time” claim in his previous petition because it had not been raised
at the district court. Id. at 338. Thus, we cannot decline to decide Dietz’s claim on the merits
pursuant to 28 U.S.C. § 2244(a) because the issue Dietz currently raises was not actually heard and
decided in the denial of his previous habeas corpus petition.
The Commission also contends that Dietz’s claim should not be reviewed on the merits
because it constitutes an abuse of the writ. A habeas petition may be seen as an abuse of the writ of
habeas corpus if the petitioner raises a claim in a subsequent petition that he could have raised in an
earlier petition. McCleskey v. Zant, 499 U.S. 467, 489 (1991). It is within the discretion of the3

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does not necessarily mean that its filing might not be found abusive under the traditional equitable
doctrine.”) (internal citations omitted). The Supreme Court has acknowledged that in habeas cases
requiring an exercise of a court’s discretion, “the court must be guided by the general principles
underlying our habeas corpus jurisprudence.” Calderon v. Thompson, 523 U.S. 538, 554 (1998).
Dietz also claims that his sentence is unlawful because the warrant that was lodged against4
him in September of 1994 was later withdrawn. Dietz claims that this resulted in his parole “never
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court to decline to decide the petition on the merits in these circumstances. Id. Dietz clearly could
have raised the present challenge in his first habeas petition and has given no explanation for his
failure to do so. Therefore, we may exercise our discretion and dismiss Dietz’s petition as an abuse
of the writ. Despite our ability to dismiss Dietz’s petition on discretionary grounds, we choose to
decide this case on the merits.
B. Standard of Review
We review de novo a district court’s denial of a § 2241 habeas corpus petition. Rosales-
Garcia v. Holland, 322 F.3d 386, 401 (6th Cir. 2003) (en banc). “The federal court’s scope of
review over a decision by the Parole Commission is extremely limited.” Hackett v. U.S. Parole
Com’n, 851 F.2d 127, 129 (6th Cir. 1987) (per curiam). Therefore, we apply a limited abuse of
discretion standard and will uphold the Commission’s decision if there exists a rational basis for the
Commission’s conclusions. Id. at 129-30 (quoting with approval Solomon v. Elsea, 676 F.2d 282,
290 (7th Cir. 1982)).
C. Analysis
Dietz bases his habeas corpus petition on his claim that the Commission did not follow its
own procedures by refusing to credit the period Dietz served in prison on an unrelated federal
sentence towards his successfully completed parole time. Dietz claims that his sentence should end4

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effectively [being] revoked between September, 1993 and April, 1998 . . .” (Pet.’s Br. 6.) However,
the warrant issued on February 16, 2000 was executed, and after a revocation hearing Dietz’s parole
was actually revoked on May 15, 2001. Thus, Dietz’s argument lacks merit.
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1,690 days earlier because of the time he spent in federal custody between September 13, 1993 and
April 30, 1998. (Pet.’s Br. 6.) A glaring flaw in Dietz’s argument is that the Commission’s
procedures create no enforceable rights. Caporale v. Gasele, 940 F.2d 305, 306 (8th Cir. 1991)
(“[W]e have no jurisdiction to review departures from internal rules which are ‘merely statements
of policy, organization, procedure or practice.’” (quoting Vargas v. United States Parole Comm'n,
865 F.2d 191, 195 (9th Cir.1988))); D'Amato v. United States Parole Comm'n 837 F.2d 72, 76 (2d
Cir. 1988) (“[T]he Commission's internal procedures manual does not create a due process right in
a parolee.” (citing Lynch v. United States Parole Comm'n, 768 F.2d 491, 497 (2d Cir.1985))); United
States Parole Commission Rules and Procedures Manual 8 (2003), available at
http://www.usdoj.gov/uspc/rules_procedures/uspcmanual8-15-03final.pdf (“The notes, procedures,
and appendices do not confer legal rights and are not intended for reliance by private persons.”). As
a result, even if the Commission acted contrary to its procedures, as long as its decision had a
rational basis, we would be required to deny Dietz’s petition. Nevertheless, inasmuch as the
Commission’s interpretation of its procedures may inform our analysis of whether there was a
rational basis for the Commission’s decision, we will analyze the relevant procedures along with the
statutory and regulatory provisions governing revocation of parole.

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The Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, § 218(a)(5), Oct.5
12, 1984, 98 Stat. 2027, repealed the statutory provisions granting authority to the United States
Parole Commission, 18 U.S.C. §§ 4201-4218, effective November 1, 1987. However, for
individuals who committed offenses before November 1, 1987, this repeal was not to take effect until
November 1, 1992. This provision of the Comprehensive Crime Control Act has been extended
multiple times, and currently the 18 U.S.C. §§ 4201-4218 will continue to apply in this limited form
until November 1, 2008. United States Parole Commission Extension and Sentencing Commission
Authority Act of 2005, Pub. L. No. 109-76, 119 Stat. 2035. As a result, the authority of the
Commission over persons who committed offenses before November 1, 1987 continues to be
governed by 18 U.S.C. §§ 4201-4218.
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After providing notice and the opportunity to be heard, the Commission may revoke the
parole of a parolee who has been convicted of a crime. 18 U.S.C. § 4214(d) (repealed 1987). Upon5
revocation of parole, the Commission may determine whether the time served on parole should be
credited towards the sentence of the parolee. As set forth in § 4210(b)(2):
in the case of a parolee who has been convicted of any criminal offense committed
subsequent to his release on parole, and such offense is punishable by a term of
imprisonment, detention or incarceration in any penal facility, the Commission shall
determine, in accordance with the provisions of section 4214(b) or (c), whether all
or any part of the unexpired term being served at the time of parole shall run
concurrently or consecutively with the sentence imposed for the new offense, but in
no case shall such service together with such time as the parolee has previously
served in connection with the offense for which he was paroled, be longer than the
maximum term for which he was sentenced in connection with such offense.
18 U.S.C. § 4210(b)(2) (repealed 1987) (emphasis added). This provision calls for the parolee after
revocation to serve all or a part of the unexpired portion of the parolee’s sentence as determined at
the time of parole, not at the time of the conviction that caused the revocation. See Weeks v.
Quinlan, 838 F.2d 41, 44 (2d Cir. 1988) (“[T]he Parole Commission may revoke the parole of any
parolee convicted of a new offense punishable by imprisonment, and may order that no credit be
received for time served after the date of release on parole.”). Although § 4210(b) makes no

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reference to crediting the amount of time a parolee has been confined for an unrelated conviction,
this provision credits the amount of time the parolee has served for the underlying offense for which
parole was granted.
The Commission’s regulations also make no reference to crediting the time a parolee has
served for an unrelated conviction. The Commission’s regulations regarding revocation decisions
are contained in 28 C.F.R. § 2.52, which provides:
(c) A parolee whose release is revoked by the Commission will receive credit on
service of his sentence for time spent under supervision, except as provided below:
. . .
(2) It is the Commission's interpretation of 18 U.S.C. 4210(b)(2) that, if a
parolee has been convicted of a new offense committed subsequent to his
release on parole, which is punishable by any term of imprisonment,
detention, or incarceration in any penal facility, forfeiture of time from the
date of such release to the date of execution of the warrant is an automatic
statutory penalty, and such time shall not be credited to the service of the
sentence. An actual term of confinement or imprisonment need not have been
imposed for such conviction; it suffices that the statute under which the
parolee was convicted permits the trial court to impose any term of
confinement or imprisonment in any penal facility. . . . However, in no event
shall the violator term imposed under this subsection, taken together with the
time served before release, exceed the total length of the original sentence.
28 C.F.R. § 2.52(c)(2) (2007). On appeal Dietz does not challenge the validity of this regulation.
However, Dietz contends that despite the absence of any reference to convictions unrelated to a
parolee’s offense in either the statute or the regulations that govern the revocation decisions of the
Commission, the Commission’s internal guidelines require the Commission to credit the time Dietz
served in prison on an unrelated conviction.
The Commission’s procedure manual discusses the credit to be given when parole has been
revoked due to a conviction. The manual states:

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Credit for Time in Confinement. Upon revocation, credit is to be given a prisoner
towards service of his maximum sentence for every day in federal confinement not
previously credited (including confinement on a warrant later withdrawn; and
confinement on an improperly executed warrant, whether or not the prisoner was also
in state or local custody).
Rules and Procedures Manual § 2.52-01(g). Dietz asserts that this provision entitles him to a credit
for his federal confinement. However, this broad reading of the import of § 2.52-01(g) would be
inconsistent with the Commission’s regulations and the statutory scheme.
As stated above, the Commission’s regulations provide that a parolee who is subsequently
convicted of a new crime “forfeit[s the] time from the date of such release to the date of execution
of the warrant.” 28 C.F.R. § 2.52(c)(2). The regulations do not make an exception for the time spent
imprisoned pursuant to the new conviction even though they contemplate the possibility that such
imprisonment could occur. Id. (“An actual term of confinement or imprisonment need not have
been imposed for such conviction.”). The only federal court that has addressed this issue has
concluded that time confined pursuant to an unrelated conviction was not contemplated by § 2.52-
01(g). In Kelly v. Meifee, 2003 WL 22845717 (S.D.N.Y. 2003), the court stated:
At first reading, S.S. 2.52-01(g) appears to authorize credit toward the original
sentence for all time spent in federal custody, regardless of whether it was pursuant
to the execution of a PV [“parole violation”] warrant. This reading, however, would
conflict with 28 C.F.R. § 2.52. As noted, 28 C.F.R. § 2.52 mandates that a parolee
who has been convicted of a new crime punishable by imprisonment forfeit the time
between having been released on parole and the execution of a parole violator
warrant for the new crime. Presumably, this forfeiture occurs even when some of that
time has been spent in custody. Thus, construing S.S. 2.52-01(g) in a manner
consistent with the underlying federal regulation, we read it as requiring credit
toward the original sentence for all time spent in federal, state or local custody due
to the execution of a PV warrant.

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Kelly, 2003 WL 22845717, at *11. We agree with the court in Kelly that § 2.52-01(g) can be
reasonably construed as only authorizing credit for time spent in custody due to the execution of a
parole violation warrant.
CONCLUSION
Because the Commission did not abuse its discretion by refusing to credit the time Dietz
spent in federal custody unrelated to the offense for which he was paroled, we AFFIRM the district
court’s denial of habeas corpus relief.

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