UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY WAYNE THURMAN,

Plaintiff-Appellant,

v.

TONY DEMICO, UNITED STATES PAROLE COMMISSION,

Defendant-Appellee.	No. 98-6200

(D.C. No. 97-CV-1324)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

Petitioner Anthony Wayne Thurman, appearing pro se, appeals from an order of the United States District Court for the Western District of Oklahoma denying his petition for habeas relief under 28 U.S.C. § 2241. Mr. Thurman argues that the United States Parole Commission ("USPC") lacked statutory authority under 28 U.S.C. § 841(c) to impose new terms of special parole following the revocation of his original special parole term in November 1990. As a result, Mr. Thurman was not credited for "street time" served during various periods of re-release.

The district court adopted the findings and recommendation of a magistrate judge and denied relief under § 2241. Noting a circuit split on the issue, and the lack of Tenth Circuit precedent on point, the district judge agreed with the reasoning in Adcock v. Warden, No. CIV-95-1720-R (W.D. Okla. Oct. 9, 1996), which followed the minority view that 21 U.S.C. § 841(c) permits the USPC to impose additional terms of special parole following revocation of a prisoner's original special parole term.

Subsequent to the district court's decision in this case, the Tenth Circuit resolved this issue in Whitney v. Booker, 147 F.3d 1280 (10th Cir. 1998). Whitney adopted the view of the Second, Third, Fourth, Fifth and Seventh Circuits,1 and held that "§ 841(c) does not authorize the Commission to reimpose special parole after the original term has been revoked." Whitney, 147 F.3d at 1282 (emphasis supplied).

In light of the clearly contrary holding in Whitney, we VACATE the judgment of the district court and REMAND the case to the district court. The district court shall then remand to the USPC for recalculation of Mr. Thurman's term consistent with the Tenth Circuit's holding in Whitney. Should the USPC determine that Mr. Thurman's maximum period of supervision has expired, Mr. Thurman must be released from custody.

Mr. Thurman also asserts for the first time on appeal that he should have been credited for street time earned during certain periods of regular parole served during the principal incarceration portion of his sentence. As this issue was not raised in the district court, we review only for plain error. See Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."). The record before us raises concerns that Mr. Thurman may have been improperly denied credit for portions of street time served while on regular parole.2 However, because the record before us is unclear, we REMAND this issue to the district court for further findings with respect to Petitioner's claim. Because the recalculation of Mr. Thurman's sentence may render him eligible for immediate release, we GRANT Petitioner's Motion to Expedite the Proceedings. The district court should consider this motion on an expedited basis on remand.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge