                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.                                                             ON APPEAL FROM THE UNITED
                                                               STATES DISTRICT COURT FOR THE
UNITED STATES PAROLE COMMISSION,                               MIDDLE DISTRICT OF TENNESSEE

         Respondent-Appellee.

                                                       /




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


         *
          The Honorable Joseph M. Hood, United States District Judge for the Eastern District of Kentucky, sitting by
designation.

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                                           No. 06-6443

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.1 Dietz was released on parole on July 9, 1992 and was scheduled to remain under parole

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, 1997.2 On April 30, 1998, Dietz was

released from prison and began a five-year supervised release period running concurrently with his

parole obligation from his December 4, 1986 sentence.




       1
        Dietz had been convicted of using the telephone to facilitate the commission of a felony on
April 15, 1983 in the Western District of Texas.
       2
        The portion of the warrant applicable to Dietz’s claim states: “the following parole action
was ordered: Withdraw Warrant dated 8/7/92 and Reinstate to Supervision (inactive due to new
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.


                                                 3
                                            No. 06-6443

       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


                                                  4
                                            No. 06-6443

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).3 It is within the discretion of the


       3
        Although “abuse of the writ” is generally viewed as a pre-AEDPA standard, courts have
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,

                                                  5
                                            No. 06-6443

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.4 Dietz claims that his sentence should end


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).
       4
        Dietz also claims that his sentence is unlawful because the warrant that was lodged against
him in September of 1994 was later withdrawn. Dietz claims that this resulted in his parole “never

                                                  6
                                           No. 06-6443

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.




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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                                           No. 06-6443

       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).5 Upon

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


       5
        The Comprehensive Crime Control Act of 1984, Pub.L. 98-473, Title II, § 218(a)(5), Oct.
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.


                                                 8
                                            No. 06-6443

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:


                                                  9
                                           No. 06-6443

       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.




                                                10
                                           No. 06-6443

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.




                                                11
