Minor Michael Still v. United States Marshal, United States Parole Commission and Denver Sheriff's Department

780 F.2d 848, 1985 U.S. App. LEXIS 25754

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 23, 1985
• Docket: 84-2509
• Status: Published

Opinions

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a), Tenth Circuit R. 10(e). The cause is therefore submitted without oral argument.

The issue presented by this appeal is whether the United States Parole Commission has the statutory authority to withdraw a parole violator warrant, once it has been executed, and hold it in abeyance pending the disposition of the state charges which form the basis for the warrant.

Petitioner was originally convicted in federal court of interstate transportation of a stolen vehicle and was sentenced to a five-year term of imprisonment. On February 28, 1984, he was released from prison and placed under the supervision of the Parole Commission. On April 4, 1984, the Commission issued a parole violator warrant charging petitioner with larceny and theft of a motor vehicle. On May 21, 1984, petitioner was arrested by Colorado authorities for auto theft and detained in the Denver jail. The U.S. Marshal sent a message to the Denver Police Department authorizing it to detain petitioner and “remand subject to custody of the U.S. Marshal, Denver, Co.” Brief for the Appellant, app. B. The next day, a Deputy U.S. Marshal executed the federal parole violator warrant, stating on the return that he had executed the warrant by arresting petitioner and committing him to the Denver jail. That same day, a U.S. Probation Officer conducted a preliminary interview of petitioner at the U.S. Marshal’s office in Denver, Colorado. During the interview, petitioner denied that he had committed larceny or auto theft but admitted that he had committed two technical parole violations.¹ Accordingly, the probation officer determined there was probable cause to believe that petitioner had violated the conditions of his parole. Petitioner was notified of this finding by a letter from the Parole Commission dated June 5, 1984, addressed to petitioner “c/o U.S. Marshal.” Brief for the Appellant, app. f. The letter also informed petitioner that a revocation hearing would be scheduled and that “[n]o new information was presented at [his] Preliminary Interview that would warrant [his] release pending the revocation hearing.” Id.

On July 9, 1984, petitioner’s counsel contacted the Parole Commission and learned that petitioner’s revocation hearing had been canceled on June 21, 1984. On July 13,1984, petitioner's counsel filed a petition for habeas corpus and mandamus seeking to compel the Parole Commission to grant petitioner a timely revocation hearing. In its answer to the petition, the Commission stated that the parole violator warrant had been withdrawn on June 5, 1985, the same day that petitioner was notified of the results of the preliminary interview. The Commission further stated that the warrant was “to be held in abeyance pending the outcome of State charges.” Record, vol. 1, at 6.

The district court denied the petition, finding that “18 U.S.C. § 4213(b) gives the parole commission the authority to postpone the hearing pending the outcome of the state charges.” Record, vol. 1, at 20. Petitioner filed a motion for rehearing on the grounds that the district court’s Order was based on the misapprehension that petitioner had “always been in state custody from the time of the execution of the warrant----” Record, vol. 1, at 22. The district court entered an Amended Order on October 1, 1984, 593 F.Supp. 1323, making no finding on the question whether petitioner had ever been in federal custody,² but ruling that “[a] common sense and policy-sensitive reading of the Act yields the conclusion that the Parole Commission is not precluded from withdrawing an executed warrant and then delaying its re-execution.” Record, vol. 1, at 25. Petitioner appeals from this Order, contending that the Commission exceeded its statutory authority in withdrawing and holding in abeyance the previously executed warrant. Petitioner also maintains that the procedure used by the Commission in this case is contrary to the due process safeguards announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

In 1976, Congress enacted the Parole Commission and Reorganization Act of 1976, 18 U.S.C. §§ 4201-4218 (1976), establishing the United States Parole Commission and setting forth a comprehensive procedural scheme governing the parole of federal prisoners. The Act established clear standards for the revocation of parole and, among other things, codified the full panoply of due process rights extended to alleged parole violators in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Section 4213 of the Act provides that the Commission may initiate parole revocation proceedings using either a warrant or a summons. Regardless of the procedure used, the revocation proceedings must be initiated as soon as practicable after the discovery of the alleged parole violation “except when delay is deemed necessary.” 18 U.S.C. § 4213(b) (1976). Ordinarily, imprisonment is not deemed to be grounds for delay; however, when the parolee is charged with a criminal offense, “issuance of a summons or warrant may be suspended pending disposition of the charge.” Id.

The Act’s procedural requirements are found in section 4214. Under this section, a parolee “retaken” pursuant to a warrant is entitled to a prompt hearing to determine whether there is probable cause to believe that he has committed a parole violation.³ 18 U.S.C. § 4214(a)(1)(A) (1976). Upon a finding of probable cause, the Act mandates a local revocation hearing within sixty days of the probable cause hearing. 18 U.S.C. § 4214(a)(1)(B) (1976). Where, as here, the parolee admits to a parole violation at the probable cause hearing, the Commission has ninety days from the date of the parolee’s “retaking” to conduct a revocation hearing. 18 U.S.C. § 4214(c) (1976).

The Parole Commission and Reorganization Act of 1976 is silent on the question whether the Commission may defer a parole revocation hearing by withdrawing a previously executed parole violator warrant. Respondents contend, however, that such a procedure is authorized by section 4213(b) of the Act, which provides that “in the case of any parolee charged with a criminal offense, issuance of a summons or warrant may be suspended pending disposition of the charge.” While this provision gives the Commission sufficient flexibility to defer a parole revocation hearing until the completion of the parolee’s new sentence, it does not imply that, once the Commission has triggered the Act’s procedural requirements by “retaking” the parolee pursuant to a warrant, see Moody v. Dag-gett, 429 U.S. 78, 89, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976), it can circumvent those requirements by simply withdrawing the warrant. First, we must presume that Congress understood the distinction between “issuance” and “execution,” especially since it is only the latter which sets in motion the Act’s procedural safeguards. Second, even if section 4213(b) expressly authorized the Commission to suspend execution of a warrant, it would not include the authority to withdraw a warrant once it has been executed. Because of the comprehensiveness of the Act’s procedural requirements, we decline to read into it a procedure that Congress could have easily provided for had it so intended.

Respondents have not suggested that any other section of the Act delegates to the Commission the authority exercised here, nor have we been able to discern such a grant of authority from reading the statute. We believe that a restrictive reading of the Act is mandated by the well-established principle of statutory construction that, in the absence of clearly expressed legislative intent, a statute should be construed to avoid difficult constitutional issues. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981); NLRBv. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). In our view, a broad construction of the Act would raise serious due process questions in light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). However, we do not reach this issue for we find that the Commission exceeded its statutory authority by withdrawing the parole violator warrant and holding it in abeyance.

Respondents rely primarily on two circuit court eases that have held that the Parole Commission may withdraw a previously executed parole violator warrant and reexe-cute it at a later date. Thigpen v. United States Parole Comm’n, 707 F.2d 973 (7th Cir.1983); Franklin v. Fenton, 642 F.2d 760 (3d Cir.1980). We believe that these cases are of some doubt, however, and decline to follow them.

In Franklin, the petitioner was on federal parole when he was arrested by state authorities for receiving stolen goods. When the petitioner failed to appear in state court, a federal parole violator warrant was issued. The warrant was executed, and the petitioner remained in federal custody for two weeks. When the state notified the Parole Commission that it intended to prosecute the petitioner, the Commission withdrew the warrant, ordered that the petitioner’s parole not be revoked, and released the petitioner to the state authorities. The Commission then issued a new warrant premised on identical grounds as those contained in the original warrant and placed the new warrant as a detainer at the institution where the petitioner was confined. The petitioner challenged the federal detainer in a habeas corpus action.

The Third Circuit upheld the district court’s denial of the petition, noting that it had been the general practice of the Commission to withhold its decision whether to revoke parole when the parolee is charged with a state offense while on parole. The court found that the Commission’s action was “implicitly approved” by section 4213(b) of the Act, which provides that “in the case of any parolee charged with a criminal offense, issuance of a summons or warrant may be suspended pending disposition of the charge.” Franklin, 642 F.2d at 763. In conclusion, the Franklin court remarked:

The procedure followed here is consistent with the spirit of § 4213(b) which allows issuance of a warrant to be suspended pending disposition of charges against the parolee. It is consistent also with the philosophy expressed in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), of permitting the Commission to consider events occurring after issuance of the warrant. Denying the Commission flexibility to defer final decision would serve the interests of neither parolee nor Commission. A restrictive approach would result in the revocation of parole in some situations in which later developments would bring about a different result.

Id.

In Thigpen v. United States Parole Comm’n, 707 F.2d 973 (7th Cir.1983), the Seventh Circuit, relying exclusively on the reasoning of Franklin, held that “a common sense and policy-sensitive reading of the Act yields the conclusion that the Commission is not forbidden, once having executed a warrant ..., from withdrawing that warrant and delaying its re-execution.” Id. at 977.

While we agree with the Franklin and Thigpen courts that parole revocation decisions should be premised upon consideration of all relevant information, we do not find this policy to be a sufficient basis for reading into the Act something obviously omitted from its terms. First, the Commission may already effectuate this policy by executing parole violator warrants only in those cases where no legitimate purpose would be served by delaying a parole revocation hearing. Second, as the legislative history of the Act makes clear, delaying disposition of the parole revocation hearing will often be to the parolee’s disadvantage:

If the offender during the period of his parole supervision is convicted of new offenses under state or federal law, and if the conviction is for more than a minor violation, revocation of parole is almost automatic. In such cases, the issue before the Commission is how much of the time remaining on the original sentence must be served by the parolee and whether this time should be served concurrently or consecutively with the new sentence. By conducting a parole revocation hearing early in the new sentence, the Commission retains the option to run the original sentence concurrent with the new sentence and the parolee is spared the unnecessary complications of an unresolved parole detainer pending throughout the service of his new sentence.⁴

S.Rep. No. 369, 94th Cong., 2d Sess. 17-18, reprinted in 1976 U.S.Code Cong. & Ad. News 335, 339.

Furthermore, we believe that the conclusion reached by the Third Circuit in Franklin is doubtful in light of the Third Circuit’s earlier decision in Maslauskas v. United States Board of Parole, 639 F.2d 935 (3d Cir.1980). There, relying on Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), and its interpretation of the statutory predecessor of the new Act, the Third Circuit held that the Parole Board could not execute a warrant, decide that the parolee’s parole should not be revoked, and then issue another warrant premised on the same grounds as those contained in the first warrant.⁵ In Franklin, the Third Circuit found that the Mas-lauskas decision was not controlling because Maslauskas was based on an interpretation of the statutory predecessor to the 1976 Act. However, the Franklin court’s approval of the Commission’s action was based in part on an interpretation of 28 C.F.R. § 2.44(a) (1979), which provides that a warrant may be issued or withdrawn by a member of the Commission. Ironically, in Maslauskas, the court had relied on the phrase “a warrant” in 28 C.F.R. § 2.35 (1972) in concluding that the regulation contemplated “execution [of] only one warrant for any given parole violation or violations.” 639 F.2d at 939.

Having determined that the Commission exceeded its statutory authority in withdrawing the parole violator warrant and therefore delaying petitioner’s revocation hearing, we must determine what relief, if any, petitioner is entitled to as a result of this violation. Because petitioner has been in the custody of state officials since the withdrawal of the parole violator warrant, and because he is still serving a state sentence, the Commission’s failure to afford petitioner a timely revocation hearing does not entitle him to be released from imprisonment. Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.1981); Spotted Bear v. McCall, 648 F.2d 546, 547 (9th Cir.1980). However, because petitioner was taken into federal custody under the parole violator warrant on May 22, 1984, any time he has served since that date must be credited toward the unexpired term of his federal sentence.

Petitioner’s federal sentence began to run upon execution of the parole violator warrant, see Barrier v. Beaver, 712 F.2d 231, 236 (6th Cir.1983), and the unauthorized withdrawal of the warrant did not toll the running of his sentence. Accordingly, we reverse and remand with directions that the Parole Commission afford petitioner a revocation hearing as soon as practicable and not later than sixty days from the date herecf. If such hearing results in the revocation of petitioner’s parole, the Commission is further ordered to credit petitioner with the number of days he has spent in custody since May 22, 1984. Cf. United States ex rel. Fitzpatrick v. United States Parole Comm’n, 444 F.Supp. 1302 (M.D. Pa.1978).

REVERSED.

1 . The technical parole violations were failure to report a change of address and change of employment.

2 . The record is unclear as to whether the Colorado authorities ever relinquished custody of petitioner to the federal authorities. The record does show, however, that a Deputy U.S. Marshal executed the parole violator warrant on May 22, 1984. The warrant commands the federal officer “to execute this warrant by taking the above-named ... and hold him in your custody.” Brief of Appellant, app. A (emphasis added). The Deputy U.S. Marshal stated on the return of service that he "executed same by arresting [petitioner] ... and committing him to Denver City Jail." Brief of Appellant, app. C (emphasis added).

The Parole Commission’s preliminary interview form recites that it is to be completed "following the arrest on a Warrant." It states further that “[f]ollowing the interview, you will be held in local custody pending a determination by the Commission as to whether there is probable cause____” Brief of Appellant, app. D. The summary report of petitioner’s preliminary interview states: "The parolee was taken into Federal custody May 22, 1984 ____” Brief for the Appellant, app. E at 1.

The Commission’s regulations establish that the Federal officer "shall execute [the] warrant by taking the parolee and returning him to the custody of the Attorney General,” 28 C.F.R. § 2.46(a), and that “[o]n arrest of the parolee the officer executing the warrant shall deliver to him a copy of the Warrant Application ____” Id. at § 2.46(b) (emphasis added). The Preliminary Interview is conducted after the parolee “is retaken on a warrant issued by a Commissioner ____” Id. § 2.48(a). These regulations clearly contemplate that the parolee is taken into federal custody when these procedures are followed. Thus, we must accept petitioner’s uncontrovert-ed assertion that he was taken into federal custody when the Deputy U.S. Marshal executed the parole violator warrant on May 22, 1984.

3 . The parolee’s conviction of a crime committed subsequent to his release on parole obviates the requirement for a probable cause hearing. 18 U.S.C. § 4214(b)(1) (1976). Nor is a hearing required if the parolee knowingly and intelligently waives his right to such a hearing. 18 U.S.C. § 4214(c) (1976).

4 . In Cooper v. Lockhart, 489 F.2d 308, 314 n. 10 (8th Cir.1973), the United States Court of Appeals for the Eighth Circuit described the detrimental consequences of a detainer on the parolee’s period of confinement as follows:

[T]he inmate is (1) deprived of an opportunity to obtain a sentence to run concurrently with the sentence being served at the time the detainer is filed; (2) classified as a maximum or close custody risk; (3) ineligible for initial assignments to less than maximum security prisons (i.e., honor farms or forestry camp work); (4) ineligible for trustee status; (5) not allowed to live in preferred living quarters such as dormitories; (6) ineligible for study-release programs or work-release programs; (7) ineligible to be transferred to preferred medium or minimum custody institutions within the correctional system, which includes the removal of any possibility of transfer to an institution more appropriate for youthful offenders; (8) not entitled to preferred prison jobs which carry higher wages and entitle them to additional good time credits against their sentence; (9) inhibited by the denial of possibility of parole or any commutation of his sentence; (10) caused anxiety and thus hindered in the overall rehabilitation process since he cannot take maximum advantage of his institutional opportunities.

See also Moody v. Daggett, 429 U.S. 78, 93-95, 97 S.Ct. 274, 281-82, 50 L.Ed.2d 236 (1976) (Stevens, J., dissenting).

5 . The Maslauskas court observed that its extensive research had disclosed no case in which a court had upheld the execution of a second warrant issued on the same grounds as one previously executed and disposed of in favor of the parolee. The court cited several cases where subsequent parole violations formed the basis for the issuance of the second warrant. 639 F.2d at 939. E.q., Johnson v. Holley, 528 F.2d 116 (7th Cir.1975); United States ex rel. Davis v. Johnson, 495 F.2d 335 (3d Cir.1974), cert. denied, 419 U.S. 878, 95 S.Ct. 143, 42 L.Ed.2d 118 (1974); Arrington v. McGruder, 490 F.2d 795 (D.C.Cir.1974); Wright v. Blackwell, 402 F.2d 489 (5th Cir.1968); Lipscomb v. Stevens, 349 F.2d 997 (6th Cir.1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d 479 (1965); Brown v. Taylor, 287 F.2d 334 (10th Cir.1961), cert. denied, 366 U.S. 970, 81 S.Ct. 1933, 6 L.Ed.2d 1259 (1961). The court cited only three cases in which a second warrant issued on the same grounds as the first, Greene v. Michigan Department of Corrections, 315 F.2d 546 (6th Cir.1963); United States ex rel. Hughes v. Ragen, 154 F.2d 289 (7th Cir.1946); Smith v. Witkowski, C.A. No. 77-3881 (N.D.Ill. December 21, 1979), but, in all those cases, the first warrant had never been executed. See also Wade v. United States Board of Parole, 392 F.Supp. 327 (E.D.Wash.1975) (Court’s ruling to quash warrant not to be construed to foreclose later reissuance of unexecuted warrant).