474 F. Supp. 804 | E.D. Va. | 1979
MEMORANDUM
Petitioner, currently incarcerated at Deep Meadow Correctional Center, State Farm, Virginia, contends that his statutory rights pursuant to the Uniform Detainer Act, Va. Code § 53-304.1 et seq. (1978 Repl.), and his constitutional rights have been violated because the Commonwealth did not give petitioner a parole revocation hearing until more than three years after petitioner had asked for such.
While serving in federal prison, a detain-er was lodged against petitioner by the Commonwealth for violation of the terms of his parole from a previous robbery conviction. Petitioner requested that this detain-er be cleared up along with another one which was lodged against him by the Commonwealth. Though brought back to trial in Norfolk in November 1975 on one detain-er, the Commonwealth did not grant petitioner a parole hearing until the latter part of 1978.
Petitioner’s statutory contention is that Article 111(d) of the Uniform Detainer Act, Va. Code § 53-304.1 et seq. (1978 Repl.), requires that “any indictment, information or complaint” which is the basis for a detainer lodged against petitioner be tried prior to petitioner’s return to his original place of imprisonment. Failure to so do results in dismissal of the “indictment, information or complaint.” Petitioner contends that the statutory language embraces a parole revocation hearing. This is an argument that is properly addressed to the courts of the Commonwealth. The interpretation of this Virginia statute does not concern this Court unless petitioner can show that such interpretation results in a denial of his federal constitutional rights. Because the Supreme Court of Virginia has
Petitioner also argues that the failure to hold a speedy trial on his parole revocation violates the federal constitution due to Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). But Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1978), holds that a parolee is deprived of no constitutionally protected rights when a detainer is lodged against him. The parolee’s constitutional right to an adversary hearing does not begin until he is taken into custody as a parole violator. Accordingly, petitioner’s constitutional rights have not been violated because his parole revocation hearing was not held immediately following the lodging of the detainer against petitioner for violating the terms of his parole.
