                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-1937
                                   ___________

Amel F. Lueth,                          *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Southern District of Iowa.
Charles Beach, Sr.; Edward F.           *
Reilly, Jr.,                            *
                                        *
             Appellees.                 *
                                   ___________

                             Submitted: June 15, 2007
                                Filed: August 17, 2007 (Corrected: 9/04/07)
                                 ___________

Before MURPHY, BOWMAN, and SHEPHERD, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       The question presented in this case is whether a special parole term for a drug
offense begins to run immediately upon the expiration of the imprisonment term for
that particular offense or, rather, upon the expiration of the aggregate imprisonment
term for all of the offenses of conviction. Like the District Court,1 we conclude that
the special parole term must run consecutive to the aggregate term of imprisonment.



      1
        The Honorable Robert W. Pratt, United States District Court for the Southern
District of Iowa.
       On July 31, 1985, Amel F. Lueth was sentenced for his convictions of various
drug offenses. On Count 1 (engaging in a continuing criminal enterprise in violation
of 21 U.S.C. § 848), Lueth was sentenced to a twenty-year term of imprisonment. On
Counts 3, 6, 7, 9, 10, and 11 (possession of cocaine and marijuana with intent to
distribute in violation of 21 U.S.C. § 841), Lueth was sentenced to terms of
imprisonment ranging from five to fifteen years plus a three-year special parole term.
On Counts 13–16 (income tax fraud and evasion in violation of 18 U.S.C. § 371 and
26 U.S.C. §§ 7201, 7206(1)), Lueth was sentenced to terms of imprisonment ranging
from three to five years. The court ordered the sentences to run concurrently, except
that the sentences on Counts 13–16 were ordered to run consecutive to the sentences
on Counts 3, 6, 7, 9, 10, and 11.

       The United States Bureau of Prisons (BOP) aggregated the sentences into a
single twenty-year imprisonment term followed by a three-year special parole term.
See generally BOP Sentence Computation Manual, ch. VII (1993) (discussing
aggregation of adult sentences). On November 10, 2004, the BOP released Lueth
from prison before the expiration of his twenty-year term on account of good-time
allowances that Lueth had earned under 18 U.S.C. § 4161. Lueth remained, however,
under mandatory release supervision of the United States Parole Commission and was
subject to certain conditions "as if on parole" until the expiration of the twenty-year
term, less 180 days, that being November 30, 2004.2 Certificate of Mandatory Release
and Mandatory Release to Special Parole, Joint Ex. App. at 32 (citing 18 U.S.C. §
4164). According to the Parole Commission, Lueth's three-year special parole term
commenced the following day, December 1, 2004, and required Lueth to continue
abiding by the conditions attached to his mandatory release. On December 8, 2004,
Lueth's probation officer advised the Parole Commission that Lueth had violated a


      2
       Lueth had been released pursuant to 18 U.S.C. § 4161 on at least two previous
occasions, but was re-incarcerated on each occasion for violating the conditions of the
mandatory release.

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condition of his special parole; therefore, Lueth was re-incarcerated on December 10,
2004.

       On February 18, 2005, Lueth filed a petition for a writ of mandamus under 28
U.S.C. § 1361, arguing that the Parole Commission erroneously determined the
commencement date of his special parole term. According to Lueth, he began to serve
his special parole term on July 31, 2000, the date he discharged the longest sentence
on the counts carrying special parole (Counts 3, 6, 7, 9, 10, and 11). Thus, Lueth
argues, he completed his special parole term on July 31, 2003, and was not subject to
the Parole Commission's supervision after his release from prison on November 30,
2004. The Parole Commission filed a motion to dismiss Lueth's petition, asserting
that the petition was both procedurally flawed and without merit. The District Court
determined that Lueth's sentence was correctly calculated and dismissed the case. See
Fed. R. Civ. P. 12(b)(6) (dismissal for failure to state a claim upon which relief can
be granted). We review de novo a dismissal for failure to state a claim upon which
relief can be granted, accepting all well-pleaded facts in the petition as true. Ferris,
Baker Watts, Inc. v. Ernst & Young, LLP, 395 F.3d 851, 853 (8th Cir. 2005).

        Before addressing the merits of Lueth's claim, we consider whether Lueth
properly brought the claim in a petition for a writ of mandamus under 28 U.S.C.
§ 1361. The Parole Commission argues that Lueth should have brought the claim in
a petition for habeas corpus under 28 U.S.C. § 2241 and that the District Court should
have construed Lueth's petition as such. Because the District Court found "no merit
to the underlying claim," however, it "assume[d] without deciding that the case ha[d]
been properly pled and [was] properly before th[e] Court." Order Dismissing Case,
March 8, 2006, at 1. We agree with the Parole Commission that Lueth's petition is
more appropriately construed as a petition for habeas corpus. See Huskey v. Keohane,
No. 96-3069, 1998 WL 2457, at *1 (8th Cir. Jan. 6, 1998) (per curiam) (stating that
petitions for writ of mandamus that challenged the execution of prisoner's sentence
were correctly construed by the District Court "as § 2241 petitions"); Chatman-Bey

                                          -3-
v. Thornburgh, 864 F.2d 804, 806–10 & nn.2, 4 (D.C. Cir. 1988) (en banc) (cited with
approval in Huskey and holding that prisoner's claim that authorities failed to properly
aggregate his consecutive sentences in determining his parole eligibility could only
be brought in habeas, not in mandamus).3

       Turning to the substance of Lueth's petition, we conclude that it lacks merit for
several reasons. First, the statute authorizing the imposition of special parole
commands that special parole be served in addition to, and not concurrent with, other
parole. 21 U.S.C. § 841(c) ("A special parole term provided for in this section . . .
shall be in addition to, and not in lieu of, any other parole provided for by law.");4 see
also U.S. Parole Comm'n v. Viveros, 874 F.2d 699, 700–01 (9th Cir. 1989) (holding
that special parole term imposed on a drug conviction did not begin running until
defendant completed parole on a separate conspiracy conviction); United States v.


      3
        We note that our jurisdiction to decide this case is not affected by Lueth's
alleged failure to exhaust his administrative remedies because the exhaustion
prerequisite for filing a 28 U.S.C. § 2241 petition is judicially created, not
jurisdictional. See Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1990), overruled on
other grounds by Reno v. Koray, 515 U.S. 50, 54–55 (1995); Del Raine v. Carlson,
826 F.2d 698, 703 (7th Cir. 1987); see also Day v. McDonough, 126 S. Ct. 1675,
1681–82 (2006) (noting that the requirement that state prisoners exhaust state
remedies before filing a federal habeas petition is not a jurisdictional requirement);
Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d 992, 996–97 (8th Cir.
2006) ("[T]he language of a statute must be 'sweeping and direct' for [an exhaustion
requirement] to be considered jurisdictional." (quoting Weinberger v. Salfi, 422 U.S.
749, 757 (1975)). But see Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir.
1992) (per curiam) (holding that the exhaustion requirement in § 2241 is
jurisdictional, but relying on a case addressing the exhaustion requirement of 18
U.S.C. § 3585(b)).
      4
       Section 841(c) was repealed by the Comprehensive Crime Control Act of 1984,
but remained applicable to offenses committed prior to November 1, 1987. See Billis
v. United States, 83 F.3d 209, 210 n.2 (8th Cir.) (per curiam) (citing legislative history
of § 841(c)), cert. denied, 519 U.S. 900 (1996).

                                           -4-
Qualls, No. 96-7129, 1997 WL 337534, at *2 (10th Cir. June 19, 1997) ("A special
term of parole can only be served after completion of incarceration and any term of
regular parole."). The reasons for this requirement were recognized by the Second
Circuit in Mastrangelo v. United States Parole Commission:

      The mandatory special parole term is designed to test the offender's
      ability to lead a lawful life in the community. . . . To permit the special
      parole term to run concurrently with an ordinary term of imprisonment
      would undermine this process. Nor is it the answer that the intended
      effect might be preserved if the prisoner is released on regular parole
      from a term of imprisonment during some or all of the time that the
      special parole term is claimed to be running concurrently, since it cannot
      be known at the time [of sentencing] that the prisoner's future behavior
      and the parole board's future decision concerning the prisoner's destiny
      will have led to his release on regular parole by the time petitioner claims
      the special parole term should commence.

682 F.2d 402, 404–05 (2d Cir. 1982) (per curiam). The Second Circuit's reasoning
is well taken and directly applicable to Lueth's claim. We reject Lueth's suggestion
that his special parole term could run while he was serving his imprisonment term on
Count 1 (even though, as it turned out, he was on mandatory release at the time). See
Qualls, 1997 WL 337534, at *2 (rejecting prisoner's argument that "because the
district court ordered his sentences on Counts 1, 3, and 4 to run concurrently, the
special terms of parole [for Counts 3 and 4] would begin to run and expire prior to the
end of his period of incarceration on Count 1").

      Second, we conclude that the BOP appropriately aggregated Lueth's multiple
sentences into a single sentence. Such aggregation is permitted by 18 U.S.C. §§ 4161
(providing for the aggregation of sentences in calculating sentence reductions based




                                          -5-
on "good time allowances") and 4205 (discussing eligibility for release on parole).5
"When multiple sentences are aggregated by the Bureau of Prisons pursuant to 18
U.S.C. [§§] 4161 and 4205, such sentences are treated as a single aggregate sentence
for the purpose of every action taken by the Commission pursuant to these rules . . . ."
28 C.F.R. § 2.5; see also BOP Sentence Computation Manual, ch. VII, at 29 (1993)
("A concurrent sentence or violator term that is running along with another sentence
or violator term, and that has an [expires full term] date which is longer, are combined
to form a single sentence."). The BOP Sentence Computation Manual directs that in
a concurrent sentence situation, if the sentence that does not include a special parole
term is longer than the sentence that includes a special parole term "then the [special
parole term] will not begin to run until the expiration of the aggregated sentence,
including any period of supervision." BOP Sentence Computation Manual, ch. VII,
at 54 (1993). The BOP and the Parole Commission therefore correctly determined
that the special parole term did not commence until the expiration of Lueth's twenty-
year aggregated imprisonment term.

       Finally, we reject Lueth's argument that commencing the special parole term at
the end of his twenty-year aggregated imprisonment term violated Bifulco v. United
States, 447 U.S. 381 (1980). Bifulco recognized that a special parole term could not
be imposed as a sanction for violating 21 U.S.C. § 848. Id. at 399. The court
sentencing Lueth, however, specifically attached the special parole term to the
violations of 21 U.S.C. § 841 listed in Counts 3, 6, 7, 9, 10, and 11, not to the
violation of 21 U.S.C. § 848 listed in Count 1. "Imposition of a longer term of
imprisonment on Count 1 . . . than those imposed on [the other counts] did not convert
the special parole term[] into part of the sentence imposed on Count 1." Qualls, 1997
WL 337534, at *2. See also United States v. Tarvers, 833 F.2d 1068, 1077 (1st Cir.
1987) (holding that, while special parole term could not be imposed for a violation of

      5
       Sections 4161 and 4205 have been repealed, but remain applicable to offenses
committed before November 1, 1987. Pub. L. No. 98-473, §§ 218(a)(4)–(5),
235(a)(1), (b)(1)(A)–(B), 98 Stat. 2027, 2031–32 (1984).

                                          -6-
21 U.S.C. § 848, special parole term was properly imposed for violations of 21 U.S.C.
§ 841).

      For these reasons, we affirm the District Court's order dismissing the case.
                      ______________________________




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