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

McKAY, cause probable and SEY- believe Before LOGAN parole. of his MOUR, Judges. the conditions had violated ployment. were failure 1. The technical violations change change report of em- of address and finding by Petitioner was notified this misapprehension based pe- letter from the Parole Commission dated “always titioner had been in 5, 1984, June addressed to “c/o from the time of the execution of the war- Appellant, U.S. Marshal.” Brief for the Record, rant----” vol. at 22. The dis- app. f. The letter also informed trict court entered an Amended Order on that a revocation sched- October F.Supp. 1323, making uled and that new information was no finding on question peti- “[n]o the whether presented Preliminary at Interview tioner custody,2 [his] had ever been federal pending that would warrant release ruling [his] but that common sense and “[a] hearing.” the revocation Id. policy-sensitive reading yields of the Act the conclusion that the Parole Commission July 9, 1984, petitioner’s On counsel con- precluded is not exe- the tacted Parole Commission and learned cuted warrant and delaying then its re-exe- petitioner’s that had 1, Record, cution.” at vol. 25. Petitioner 21, July canceled on June 1984. On appeals Order, contending from this that 13,1984, petitioner's petition counsel filed a the Commission exceeded its au- corpus seeking habeas mandamus thority in withdrawing and holding abey- compel grant the Parole Commission to previously ance the executed warrant. Pe- timely titioner also that procedure maintains the petition, its to the answer by used the Commission this case is stated that the violator warrant had contrary process to the due safeguards 1985, an- 5, been withdrawn on June the same Brewer, in Morrissey nounced day was notified of the re- 471, 2593, (1972). 92 S.Ct. 33 L.Ed.2d 484 preliminary sults of the interview. The Commission further stated that the war- 1976, Congress enacted the Parole abeyance rant “to be held in pending was Reorganization Commission and Act of charges.” Record, the outcome of State (1976), 18 U.S.C. 4201-4218 estab- §§ vol. at 6. lishing the United States Parole Commis- setting sion comprehensive pro-

The district forth a petition, court denied the governing cedural finding 4213(b)gives that “18 scheme the U.S.C. the § prisoners. federal commission the The Act established post- pone hearing pending the clear the outcome standards for the revocation of and, charges.” Record, among things, the state other vol. at 20. codified the full Petitioner filed rehearing panoply process rights a motion for due extended to grounds alleged the Morrissey violators in that the district court’s Order 2. summary report The record is petitioner’s preliminary unclear as to whether the The Colo- relinquished custody rado authorities ever parolee states: interview "The into taken ____” to the custody May federal authorities. The record Federal Brief for show, however, Deputy does that a U.S. Appellant, app. Marshal the E 1. May executed the violator warrant on regulations The Commission’s establish that The warrant commands federal offi- the Federal officer "shall execute [the] taking by cer “to execute this warrant by above- taking parolee returning him to the ... your custody.” named and hold him in General,” custody Attorney 28 C.F.R. added). Appellant, app. (emphasis Brief A 2.46(a), parolee and that § arrest of the “[o]n Deputy U.S. Marshal stated on return of executing officer the warrant shall deliver ____” arresting by [peti- service that he "executed same copy Application him a of the Warrant committing City ... and to Denver tioner] him 2.46(b) added). (emphasis Id. at Prelimi- Appellant, app. (emphasis Jail." Brief of C add- nary parolee Interview is conducted after the “is ed). retaken on warrant issued a Commissioner ____” 2.48(a). regulations clearly Id. preliminary These Parole Commission’s inter- contemplate parolee completed view taken into feder- form recites that it is to be "following procedures al when these are followed. arrest It Warrant." states Thus, interview, “[f]ollowing you accept petitioner’s further that we must will uncontrovert- custody pending be held in ed that he taken local a determina- assertion into federal cus- tody Deputy the Commission as to whether there is when the U.S. Marshal executed the cause____” probable Appellant, app. May Brief of D. violator warrant on parolee’s completion 33 the new sen- Brewer, tence, that, imply (1972). does once Com- L.Ed.2d triggered procedural has the Act’s mission provides the Act Section by “retaking” requirements parole revocation may initiate warrant, Moody to a pursuant Dag- see warrant or proceedings using either a 78, 89, 274, 279, gett, procedure Regardless of the summons. L.Ed.2d 236 it can circumvent those proceedings used, must the revocation by simply withdrawing requirements practicable after the as soon as initiated First, must presume warrant. alleged parole violation discovery Congress understood the distinction be- necessary.” delay is “except when deemed “execution,” espe- “issuance” and tween 4213(b)(1976). im- Ordinarily, 18 U.S.C. § cially it is since latter which sets grounds is not deemed to be prisonment procedural safeguards. Act’s motion the parolee is however, when delay; Second, 4213(b) expressly even section offense, “issuance charged with a criminal suspend authorized to exe- may suspend- be of a summons or warrant of a not cution would include charge.” Id. pending disposition of the ed authority the to withdraw a warrant once requirements are procedural Act’s it has been executed. Because of the com- section, this in section 4214. Under found prehensiveness procedural of the Act’s re- a pursuant to warrant parolee a “retaken” quirements, we decline to read into it a hearing to prompt to a determine is entitled procedure Congress easily that could have probable cause to there is believe whether provided for had it so intended. parole that he has a violation.3 committed 4214(a)(1)(A)(1976). Upon a 18 U.S.C. § Respondents suggested not have cause, probable the man- finding of Act delegates of the Act that other section hearing within six- dates a local revocation to the Commission the exercised 18 ty probable hearing. the cause days of here, we to discern nor have been able such (1976). Where, 4214(a)(1)(B) as U.S.C. § reading grant authority from the stat a of here, parolee parole a viola- admits to the reading We that a restrictive ute. believe probable hearing, the tion at the cause by of the Act is mandated the well-estab ninety days from the date Commission has principle construction lished “retaking” to a parolee’s conduct that, clearly expressed in the absence of 4214(c) hearing. 18 U.S.C. § intent, legislative should be a statute con (1976). is strued to avoid difficult constitutional Evangelical Lutheran Reorganiza- sues. St. Martin The Parole Commission Dakota, 772, 451 U.S. question v. South tion Act of 1976 is silent on Church 780, 2142, 2147, 101 68 L.Ed.2d 612 may pa- a S.Ct. defer whether Commission (1981); Bishop a hearing withdrawing NLRBv. Catholic Chica role revocation 1313, 1322, 490, 507, 440 99 parole go, war- S.Ct. previously executed (1979); Benson, however, contend, L.Ed.2d 533 Crowell v. Respondents 59 rant. 76 52 L.Ed. by section 285 S.Ct. procedure such a is authorized (1932). view, In our a construc “in 598 broad 4213(b) provides charged Act raise serious due tion would any parolee case light of offense, process questions Morrissey issuance of a summons criminal Brewer, 408 U.S. may suspended pending disposi- However, (1972). do charge.” provision this L.Ed.2d 484 tion While find flexibility this issue for we Com gives reach the Commission sufficient statutory authority by mission exceeded its until to defer a parolee knowingly required and intelli- if the parolee’s a crime committed 3. The conviction of hearing. right subsequent gently his release on obviates waives such 4214(c) (1976). requirement probable cause for a U.S.C. 4214(b)(1) (1976). isNor U.S.C. parolee. It is consistent also with holding abeyance. it in philosophy expressed in Moody v. Daggett, primarily Respondents rely on two circuit L.Ed.2d 236 of permitting the court eases that have held the Parole Commission to occurring consider events previously may withdraw ex- Commission after issuance of Denying the warrant. ecuted violator warrant and reexe- flexibility to defer final Thigpen cute it at a later date. v. United decision would serve nei- interests of (7th Comm’n, 707 F.2d States Parole ther nor A Commission. restric- Fenton, Cir.1983); Franklin v. approach tive would result in the revoca- (3d Cir.1980). We believe that these in some situations which doubt, however, are some and de- cases later developments bring about cline to follow them. different result. Franklin, was on feder- Id. al when he was arrested state Thigpen v. United States Parole receiving goods. authorities stolen Comm’n, 707 F.2d 973 appear When the failed Circuit, relying Seventh exclusively on the court, a federal violator war- reasoning Franklin, held that “a com- rant was issued. The warrant exe- policy-sensitive mon sense and reading of cuted, remained in feder- yields the Act the conclusion that the Com- custody for al two weeks. When the state forbidden, mission is not having once exe- notified the Parole it Commission that in- ..., cuted warrant withdrawing prosecute petitioner, tended to the the delaying warrant and its re-execu- Commission withdrew the ordered tion.” Id. at 977. petitioner’s parole revoked, that the not be and petitioner released the to the state agree While we with the Franklin and authorities. The Commission then issued a Thigpen that parole courts revocation deci- premised new warrant on grounds identical premised sions should upon be considera- as those in original contained the warrant tion of all information, relevant we do not placed the new warrant as a detainer policy find this to be a sufficient basis the at institution where the was reading something obviously into the Act confined. The challenged the First, omitted from its terms. the Commis- federal detainer in a corpus habeas action. may already sion policy by effectuate this upheld executing Third parole the only district in warrants petition, court’s denial of noting legitimate the those purpose cases where no general practice had the of the Com- by delaying served be revo- mission to Second, withhold its decision whether to cation legislative as the parolee revoke when the charged clear, is history of Act delaying the makes with a parole. disposition offense while on of the court found that the parolee’s disadvantage: Commission’s action will often be “implicitly approved” by section during If the period offender his of 4213(b) Act, of provides which that “in parole supervision is convicted of new the case any parolee charged with a law, offenses under state or federal offense, criminal issuance of a summons or if is the conviction for more than a minor may suspended disposi- warrant pending violation, revocation of is almost Franklin, charge.” tion 642 F.2d cases, automatic. In such the issue be- conclusion, the Franklin court fore the Commission is how much of the remarked: remaining original time on the sentence procedure followed here is consistent parolee must be served spirit 4213(b)

with the which allows whether this time should be served con- § issuance of suspended a warrant to be currently consecutively or new pending disposition charges against conducting By sentence. revo- In Frank- sentence, contained in the first warrant.5 early in new cation lin, the Mas- option to run retains the the Third Circuit found that lauskas decision was with the concurrent controlling sentence be- spared and the new sentence Maslauskas cause based on an inter- unnecessary of an complications statutory predecessor pretation of pending detainer unresolved the Franklin However, Act. the 1976 new throughout sen- the service of approval the Commission’s action court’s tence.4 interpretation part in was based 17-18, Cong., 2d Sess. S.Rep. No. 94th 2.44(a) (1979), 28 C.F.R. provides reprinted in Cong. & Ad. 1976 U.S.Code may that a warrant be issued withdrawn 335, 339. News by a Ironical- member Commission. Maslauskas, Furthermore, ly, the conclu- in the court had relied on believe that Frank- phrase reached the Third Circuit “a warrant” 28 C.F.R. 2.35 sion lin light the Third Cir- (1972) is doubtful concluding regulation decision in Maslauskas cuit’s earlier contemplated “execution one war- [of] Parole, 639 F.2d Board States any given parole rant for violation or viola- relying Moody There, (3d Cir.1980). 639 F.2d at 939. tions.” Daggett, Having determined that the Com interpretation of and its L.Ed.2d statutory authority in mission exceeded its the new predecessor of held that the Parole Third Circuit petitioner’s delaying and therefore revoca warrant, decide could not execute a Board hearing, we re must determine what not be re- parolee’s parole should lief, any, petitioner to as a entitled voked, warrant and then issue another grounds as those result of this violation. Because on the same premised Lockhart, Cooper 5. The Maslauskas court observed that its exten n. Ap- no the United States sive research had disclosed case in which peals Eighth the detri- upheld for the Circuit described had the execution of a second court parol- consequences of a on the grounds detainer mental issued on the same as one period follows: of confinement as ee’s disposed previously in favor of executed and of (1) deprived opportunity an parolee. cited cases inmate court several [T]he concurrently to obtain sentence run subsequent parole to violations formed where being the time the served at sentence the issuance of the second warrant. basis for filed; (2) as a maximum detainer is classified Holley, E.q., 528 639 F.2d at 939. Johnson v. risk; (3) ineligible custody close initial or (7th Cir.1975); United ex rel. F.2d 116 States security assignments to less than maximum Johnson, 1974), (3d F.2d 335 Cir. Davis v. 495 (i.e., forestry camp prisons honor farms or 143, denied, 878, 419 95 42 cert. U.S. S.Ct. status; (5) work); (4) ineligible for trustee McGruder, (1974); Arrington v. 490 L.Ed.2d 118 living quarters preferred allowed to live Blackwell, (D.C.Cir.1974); Wright F.2d v. 795 dormitories; (6) ineligible study- as such (5th Cir.1968); Lipscomb v. Ste 402 F.2d 489 programs; programs or work-release release denied, Cir.1965), vens, (6th 997 349 F.2d cert. preferred (7) ineligible be to to transferred 993, 573, 86 15 L.Ed.2d 479 382 U.S. (1965); S.Ct. custody institutions minimum medium or (10th Taylor, Brown v. 287 F.2d 334 system, which in- within the correctional 970, Cir.1961), denied, U.S. cert. 366 81 any possibility of trans- cludes the removal 1933, (1961). cited 6 L.Ed.2d 1259 The court appropriate for institution more fer an cases in which second warrant three offenders; (8) pre- youthful not entitled to first, grounds as the same Greene issued on higher wages prison jobs carry ferred Corrections, Michigan Department F.2d v. 315 good time cred- entitle them to additional Cir.1963); (6th Hughes 546 United States ex rel. sentence; (9) against inhibited its their (7th Cir.1946); Ragen, v. 154 F.2d 289 Smith v. commu- possibility denial Witkowski, (N.D.Ill. C.A. No. 77-3881 December sentence; (10) anxiety caused tation cases, 21, but, 1979), first war all those in the rehabilitation and thus hindered overall See v. executed. also Wade rant had never been process maximum ad- he cannot take since Parole, F.Supp. 327 392 United States Board of vantage opportunities. of his institutional (Court’s (E.D.Wash.1975) ruling quash war 78, 93-95, Daggett, Moody U.S. 97 also v. 429 See reis to foreclose later rant not to construed 274, 281-82, (1976) (Ste- 236 50 L.Ed.2d S.Ct. vens, warrant). suance of unexecuted J., dissenting). 854 custody

has been of state officials role Reorganization Commission and Act of since the withdrawal (the violator Act), 1976 given gloss 1976 warrant, serving and because he is still a Supreme provided in Moody Dag- sentence, the Commission’s failure to 78, gett, 274, U.S. 97 S.Ct. 50 L.Ed.2d petitioner timely afford revocation hear- (1976). The 1976 particularly at ing does not entitle him to be released 18 U.S.C. grants the United States imprisonment. Day, Harris v. 649 F.2d Parole Commission broad discretion in its (10th Cir.1981); Spotted 761-62 Bear handling revocations. McCall, (9th Cir.1980). majority principle uses the of strict However, because was taken into statutory construction to conclude that custody under the federal violator hearing rights Still’s were violated. Still 22, 1984, any May warrant on time he has “retaken,” holds, majority and un- served since that date must be credited der 18 U.S.C. 4214 a retaking requires a unexpired term of toward his federal the majority correctly notes, As sentence. express no provision in the statutes began Petitioner’s federal sentence provides for the withdrawal of a warrant upon run execution violator once it has been executed. similarly But Beaver, see Barrier F.2d express provision there is no in the and the unautho- delay statutes for of execution anof issued rized of the warrant withdrawal did not toll this, Despite warrant. Moody expressly running of his Accordingly, sentence. held that the Parole Commission could is- we reverse and remand with directions that against sue a pa- an incarcerated the Parole Commission afford role executing promptly without practicable soon as as triggering right and without to a hear- sixty days and not later than from the date ing. 429 97 S.Ct. at 279. The herecf. If such in the results revo- Parole lodge Commission can instead an petitioner’s parole, cation of the Commis- against issued warrant as a detainer sion is further ordered to credit parolee, to be executed when the days spent with the number of he has present released from custody. Id. May since Cf. Moody Court held that the lack of ex- Fitzpatrick States ex rel. v. United States press provision gen- in the statute and the Comm’n, (M.D. Parole F.Supp. process hearing rights eral due found earli- Pa.1978). parolees Brewer, er for in Morrissey v. REVERSED. 33 L.Ed.2d 484 require contrary did not decision. LOGAN, Judge, dissenting: Supreme Court’s in Moody decision I must dissent. reasonably cannot be reconciled with the any significant I do not see distinctions majority’s holding today. The execution between Thigpen the case before us and v. and withdrawal Commission, Parole here equiv- seem to me to the functional F.2d 973 and Franklin alent of the issuance without execution (3d Fenton, Cir.1980), 642 F.2d 760 both of Moody upheld. that Still was not removed pa- which allowed of an issued withdrawal jail from the state at the time of this war- Thompson role violator warrant. Accord “execution,” rant’s and he remained incar- Commission, v. United States Parole charge cerated the state all times F.Supp. (D.D.C.1983). every thereafter. There is indication that split attempted

I in the Parole hesitate to create a Commission’s execu- simply the circuits if I tion here was were convinced that these bureaucratic mis- interpreting say other courts take. Because we must were the law in- that the Com- think, correctly. however, I Thigpen initially mission could have issued the war- and properly interpreted lodged detainer, Franklin the Pa- and I rant it as a believe choosing pleading right his say his between we also must self-incrimination, against making admis- error could correct its interests, restoring testifying his against and Still to sions executed warrant falsely exculpate status. himself. It also con- intended detainer philosophy expressed in forms to the “detri- majority points to various 78, 89, 97 Moody Daggett, delay from the ments” that would flow 274, 279, 50 L.Ed.2d 236 hearing if allow with- Still’s permitted to the Commission should be any But of the executed warrant. drawal decision, consider, before its final events delay identical to the such detriment is occurring after the issuance of the war- by parolee subject experienced detriment rant.” unexecuted warrant. to an issued but F.2d at Supreme discussed these Moody the Court length expressly found detriments at In the recent case Brock process or they not raise due did — U.S.-, Union, Transportation statutory problems. See construction 2, (1985), Supreme 88 L.Ed.2d S.Ct 9,& n. 97 S.Ct. at Moody, 429 U.S. at 85-88 question considered the of the Secre- we can n. 9. I do not see how 277-79 & tary power to withdraw a citation Labor’s detriments do raise due say now that these already employer allegedly issued to an prob- construction process and working unsafe conditions violation of lems. Occupational Safety and An Health Act. generally I it to the I add that think party argued Secretary that the interested advantage parolee’s permit the Commis- the citation of Labor could not withdraw delay hearing, sion to upholding once it had issued. the deferral results from with- even when citation, Secretary’s power to withdraw If the drawal of an executed warrant. stated: the Court were forced to hold an immedi- Commission Commission, the Secretary, “It is not the pa- hearing, surely would order the ate who sets the substantive standards for begin running rolee’s sentence to place, only Secretary the work again on release from the confinement authority has to determine a cita- portion of the new sentence or on the date employer tion should be issued to concurrently. reparóle, and not See 28 conditions, working unsafe 29 U.S.C. 2.47(d)(2)(general policy is to re- C.F.R. § necessary adjunct A pow- of that only on release from new confine- start er is the to withdraw a citation ment). presently can act Commission and enter into settlement discussions prisoner favorably to the even while he employer.” with the being charges; on unrelated detained Id. at 288. contemplates pa- itself a review of statute days role detainers within 180 of notifica- Although Brock does not deal with the placement serv- tion to power complaint, to reissue a withdrawn ing new sentence. U.S.C. Supreme appli- Court’s comment seems 4214(b)(1).1 cable to the instant situation. The Parole Further, Thigpen, as noted in the flexi- Commission has discretion to admin- broad setting being to defer bility of able If it defer ister the 1976 Act. can procedural scheme in motion it execution of a warrant that had issued during sepa- of a sentence for a the service salutary policy allowing a “serves the crime, holds, expressly Moody rate as clear himself

suspected parole violator to empowered should also be to withdraw an charges prior to his revocation of state necessity prejudice to reis- hearing, avoiding thus issued without mitigation may preserved. unless at which the evidence can be See 1. If evidence of be lost promptly, Moody, some action is taken U.S. at n. S.Ct. at n. 9. 97 279 hearing power an immediate has the to conduct suance, purported Smith, even after a “execu- as in the Commission’s failure to tion,” least in at circumstances hold a was not an intentional viola- there nowas new incarceration because of Smith, tion of 4214. See 577 F.2d at the execution of that warrant. 1029; Carlton, see also 691 F.2d at 993. emphasized, As an Smith unintentional vio- Finally, agree even if I were to with the lation does not warrant the “draconian” majority that the withdrawal of the war- remedy majority here imposes. 577 rant violated the 1976 I still would F.2d at 1028-29. disagree holding with its that Still’s federal day sentence recommenced on the the war- reasons, For the above I dissent. rant was executed and never tolled Beaver, thereafter. Barrier v. 712 F.2d upon which majority proposition,

relies for that not did consider

a situation at all like that issue here. spent serving

For time a state sentence in against parole

a state institution to count sentence,

violator’s federal two (1)

things required: are (2) redesignation parole,

federal Attorney the United States General of Jayne WORTHEN, individually and as prison state as the one which the remain- guardian ad litem for Charissa Worth der the original sentence could be Worthen, en and Glen Elliott minor Henderson, served. Hash v. 385 F.2d children, Plaintiff-Appellant, (8th’Cir.1967). step Neither was taken here. KENNECOTT CORPORATION d/b/a Further, it is settled law that there has Kennecott, corporation, York New prejudice been no to a from a Defendant-Appellee. sixty failure to hold a within days pursuant the only remedy for No. 85-1331. give violation is to of Appeals, hearing. See Smith v. Tenth Circuit. States, (5th F.2d 1027-29 Cir.1978) (fully discussing remedy prob Dec. lem); Hopper accord v. United States Pa Commission, (9th role 702 F.2d

Cir.1983); Keohane, Carlton 691 F.2d (11th Cir.1982); v. Day, Harris (10th 1981). 761-62 Cir.

Here Still has been prejudiced. As

noted, experience essentially identi-

cal to of a custody

against whom issued violator warrant lodged

has been as a detainer. Under

Moody legal. this latter I circumstance nothing

therefore see in Still’s circum-

stance prejudice that could labeled as prompt parole the denial of a revoca- The Commission retains the power

same or to refuse revocation con- spent

sider the time in state in its Also, here,

eventual revocation decision.

Case Details

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

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Dec 23, 1985

Citation: 780 F.2d 848

Docket Number: 84-2509

Court Abbreviation: 10th Cir.