FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      December 3, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JESUS JOHN HERNANDEZ,

             Petitioner - Appellant,

v.                                                         No. 13-1531
                                              (D.C. No. 1:12-CV-00881-MKS-KMT)
JOE STARMANN, Director,                                     (D. Colo.)
Independence House South; UNITED
STATES PAROLE COMMISSION,

             Respondents - Appellees.


                            ORDER AND JUDGMENT*


Before LUCERO, GORSUCH, and MORITZ, Circuit Judges.


      Jesus John Hernandez, proceeding pro se,1 appeals from the district court’s

denial of his application for a writ of habeas corpus under 28 U.S.C. § 2241. He

argues that the United States Parole Commission (“Commission”) lacked authority to


      *
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
       We construe Hernandez’s pro se filing liberally. See Garza v. Davis,

, 1201 n.2 (10th Cir. 2010).
impose a second term of special parole after special parole had been revoked, that the

Commission failed to hold a required parole hearing, and that the district court should

have held an evidentiary hearing.2 Exercising jurisdiction under 28 U.S.C. § 1291

and reviewing de novo, see 

, we affirm.

                                             I

       In 1986, Hernandez was convicted of conspiracy to import marijuana,

distribution or possession with intent to distribute cocaine, conspiracy, continuing

criminal enterprise, and being a felon in possession of a firearm. He was sentenced

to an aggregate term of imprisonment of twenty years to be followed by ten years of

special parole.3 In July 1994, he was released on regular parole. Then, in 1995, the

Commission imposed a special drug aftercare condition, which included drug testing.

After completing regular parole, Hernandez began his ten-year special parole term in

September 2005. Two years later, in September 2007, the Commission issued a

parole violator warrant and placed him in custody for special parole violations: a

traffic violation, failure to submit to drug testing, use of drugs, failure to report to his

supervising officer, and violating a restriction on working as a paralegal. The

       2
        Because Hernandez recognizes that the Commission is the true respondent,
we refer to both respondents as the Commission.
       3
        Under the Controlled Substances Act of 1970, “certain drug offenders were
required to serve a term of special parole following . . . completion of the primary
sentence, which may include regular parole. . . .” See Escamilla v. Warden, FCI El
Reno, 

, 345-46 (10th Cir. 1993). The Sentencing Reform Act of 1984 and
the Controlled Substances Penalties Amendments Act of 1984 replaced special parole
with supervised release. See 

n.2.


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Commission revoked special parole in February 2008. Hernandez did not receive

credit for the two years of “street time” he spent on special parole. See 21 U.S.C.

§ 841(c) (repealed 1984) (requiring forfeiture of time spent on special parole).4 In

September 2008, the Commission re-paroled Hernandez. After he tested positive for

drug use in late 2011, the Commission ordered his temporary placement in a halfway

house for drug treatment and required that he pay for drug abuse treatment and

testing. According to the Commission’s Notice of Action, Hernandez was serving

ten years of special parole. His parole was not revoked, however, and it will expire

in September 2017, ten years after he was returned to custody on the special parole

violator warrant.

      In his § 2241 application, Hernandez alleged that (1) because special parole

has been repealed, he should not be required to serve a ten-year term of special

parole; and (2) the requirements imposed on him after sentencing—that he submit to

drug testing and pay for drug testing, counseling, and supervision—violated the Ex

Post Facto Clause. Later, Hernandez asserted that the Commission improperly



      4
          Section 841(c) provided:
      A special parole . . . may be revoked if its terms and conditions are
      violated. In such circumstances the original term of imprisonment shall
      be increased by the period of the special parole term and the resulting
      new term of imprisonment shall not be diminished by the time which
      was spent on special parole. A person whose special parole term has
      been revoked may be required to serve all or part of the remainder of the
      new term of imprisonment.


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imposed a new ten-year term of special parole after revoking his special parole,

thereby increasing his sentence by two years.

      In two separate orders, the district court denied the § 2241 application, finding

that special parole had not been repealed as to Hernandez, that the Commission’s

imposition of parole conditions did not violate the Ex Post Facto Clause, and that he

was not entitled to credit for the two years he was on special parole before the

Commission revoked it. Also, the district court found that the Commission properly

re-imposed a new term of special parole.

      Hernandez filed a motion to alter or amend judgment under Federal Rule of

Civil Procedure 59(e), reasserting that the second ten-year term of special parole

imposed by the Commission is unlawful. The district court granted the motion in

part to reconsider his issues as clarified and denied it in part because the § 2241

application was properly denied. When the Commission revoked Hernandez’s

special parole in 2008, the court found, his re-parole was to regular, not special,

parole. See Whitney v. Booker, 

, 1281-82 (10th Cir. 1998) (holding

that after special parole has been revoked, the Commission lacks authority to

re-impose special parole). Noting that the Commission referenced Hernandez’s

subsequent release as special parole, the district court suggested that the Commission

review his status under Whitney. But, regardless of whether he was released to a

second term of special parole or to regular parole, the district court decided that

Hernandez had not identified any injury suffered after his re-parole in 2007, and


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therefore was not entitled to relief. Further, the district court presumed that he will

not suffer injury unless parole is revoked, at which time the question of eligibility for

“street time” will arise. Hernandez appealed.

                                            II

                                            A

      On appeal, Hernandez continues to argue that the Commission lacked authority

to impose a second term of special parole. The Commission counters that it had this

authority because Johnson v. United States, 

, 712 (2000), is an

intervening change of law overruling Whitney. Alternatively, the Commission

argues that regardless of whether Hernandez is serving regular or special parole, he

has suffered no injury. The Commission maintains that he would incur an injury only

if he violates the terms of his parole, which has not yet occurred. Only in that event

would Hernandez’s type of parole matter, because “street time” typically is credited

for regular parole, but not for special parole. See 28 C.F.R. § 2.52(c) (permitting

“street time” for regular parole); 

(disallowing “street time” for special

parole).

      Under the circumstances of this case, there is no need to address whether

Johnson overruled Whitney. Rather, we agree with the district court that regardless

of the type of parole Hernandez is serving, he is ineligible for § 2241 relief because

he has failed to show that he has incurred any harm. His parole has not been




                                           -5-
revoked, and he is not eligible for release until September 2017, unless the

Commission decides that he may be released before that time.

                                           B

      Hernandez additionally argues that the district court did not address his

argument that the Commission improperly refused to comply with 18 U.S.C.

§ 4211(c)(1) and provide a required parole hearing. We conclude that this argument

is moot. New evidence attached to the Commission’s brief indicates that it held a

hearing on April 1, 2014, and on May 20 issued a Notice of Action to continue

supervision because there is a likelihood that, if Hernandez were released, he would

engage in criminal conduct. Hernandez has had his hearing.

                                           C

      Finally, Hernandez argues that the district court should have held an

evidentiary hearing. We disagree. The record does not indicate that he was entitled

to any relief or that the court abused its discretion in denying a hearing. See Curtis v.

Chester, 

, 549 (10th Cir. 2010) (stating that a denial of evidentiary

hearing is reviewed for abuse of discretion).




                                           -6-
                                      III

      The judgment of the district court is AFFIRMED. Hernandez’s motion for

limited remand and motion for review of that motion are DENIED as moot.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge




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