Tuttle v. US Parole

Opinion

USCA1 Opinion

November 20, 1995

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 95-1103 



                                     DALE TUTTLE,



                                Petitioner, Appellant,



                                          v.



                           U.S. PAROLE COMMISSION, ET AL.,



                               Respondents, Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                    [Hon. Richard G. Stearns, U.S. District Judge]
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                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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            Dale Tuttle on brief pro se.
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            Donald  K. Stern,  United States  Attorney,  and David  S. Mackey,
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        Assistant United States Attorney, on brief for appellee.


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Per Curiam.  Pro  se appellant Dale Tuttle,  who is
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            imprisoned  in Massachusetts on  an armed robbery conviction,



            appeals  from the  district court's  dismissal of  his habeas



            petition.  We affirm.



                      Tuttle  committed  the  robbery  for  which  he  is



            presently confined while on federal parole.  Accordingly, the



            United  States Parole  Commission  issued a  warrant for  his



            arrest,  but  placed  it  as   a  detainer  against  him   in



            Massachusetts.  In his habeas petition, Tuttle sought removal



            of  the detainer, alleging that the Commission had not held a



            parole  revocation hearing or  conducted timely dispositional



            review of the detainer.  Both parties agree that, in order to



            obtain habeas relief, Tuttle  must show that the Commission's



            alleged delay has prejudiced him.



                      Tuttle argues that  he has been prejudiced  because



            mitigating evidence that might have induced the Commission to



            permit  his continued  release on  parole despite  the parole



            violation  has been  lost during  the period  of delay.   For



            purposes  of this opinion, we assume, but do not decide, that



            the  loss  of  mitigating   evidence  relevant  to  a  parole



            revocation hearing  or dispositional review  would constitute



            prejudice.1   See  United States v.  Williams, 558  F.2d 224,
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            1.  A few courts have also  suggested that due process rights

            may be implicated if delay in executing a warrant lodged as a

            detainer  might result  in  the loss  of mitigating  evidence

            relevant to the decision to revoke parole.  See United States
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            v. Williams, 558  F.2d 224, 227 (5th Cir. 1977); U.S. ex rel.
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227 (5th Cir. 1977) ("even if [a parolee] admits the [parole]



            violation, he  may be  prejudiced if delay  has impaired  his



            ability to present evidence of mitigating circumstances  that



            might affect the decision to incarcerate him").  But, because



            Tuttle's  claims of  prejudice  are  conclusory  in  critical



            respects  or otherwise  unpersuasive, habeas  relief was  not



            warranted,  nor was an evidentiary  hearing.  See McDonald v.
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            New Mexico Parole Board,  955 F.2d 631, 634 (10th  Cir. 1991)
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            (dismissal of habeas petition  asserting delay in executing a



            warrant   was  justified   in   part   because   petitioner's



            allegations  of prejudice were conclusory), cert. denied, 504
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            U.S. 920 (1992).



                      Tuttle claims that his probation officers no longer



            remember his good conduct while on parole, but he proffers no



            confirming  statement by  those officers  and does  not state



            that they  are unavailable  to provide  such statements.   He



            also alleges  that he  cannot show his  continuous employment



            while on  parole, because "over the years" his employers have



            moved away or gone out of business.  Even if  true, this fact



            would  not  show  prejudice.    Tuttle  identifies  only  one



            employer, but  he gives no  details why witnesses  or records


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            Caruso v. U.S. Board  of Parole, 570 F.2d 1150, 1154 (3d Cir.
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            1978).  Ordinarily,  a parole revocation hearing  need not be

            held  until the warrant is  executed.  See  Moody v. Daggett,
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            429 U.S.  78, 89 (1976).  In  view of our disposition herein,

            we need  not  address the  question  raised in  Williams  and
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            Caruso.
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from that employer  are unavailable,  and he  does not  state



            when  they became  unavailable.   See  Poynor v.  U.S. Parole
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            Comm'n,  878 F.2d  275, 277  (9th Cir.  1989) (to  constitute
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            prejudice, the mitigating evidence must have been lost during



            the  period of  delay by  the Commission).   Finally,  Tuttle



            alleges that  his girlfriend, who  died in  1990, could  have



            testified  to  certain facts  supporting  Tuttle's allegation



            that he committed the  robbery in order to  help her pay  her



            medical costs.  Tuttle does not say that she did not have the



            money for treatment.  The loss  of his girlfriend's testimony



            was not prejudicial.   Tuttle mentions that there  are "other



            witnesses" who  could also attest  to these "facts"  but with



            whom he has  "lost touch."  He does not say  when he fell out



            of contact with these witnesses  or whether he ever attempted



            to reach them.



                      Affirmed.
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