Lead Opinion
Appeal is taken from denial of relief on appellant’s pro se petition for habeas corpus. Appellant’s central contention is that his incarceration under a 1956 bank robbery conviction following a parole revocation is unlawful duе to unreasonable delay in handling of a 1961 parole violator’s warrant under which he was arrested in July, 1969.
Appellant commenced his pro se habeas proceedings on January 6, 1970, following revocation of his parole in October, 1969. The answer and return оf appellee made a general denial and an allegation that there was no unreasonable delay by the Board of Parole (the Board) in executing the warrant. Numerous exhibits were attached by appellee, detailing the facts from aрpellant’s 1956 conviction through his arrest on the parole violator’s warrant. After review of the pleadings and documents attached by . the Government, the trial court made detailed findings without a hearing and found that there was no unreasonable delay. Relief was denied and this appeal follows.
These essential facts appear in the Government’s exhibits and are without material dispute. Appellant was sentenced in June, 1956, for a period of ten years on a bank robbery conviction. In January,-1960, parole was granted with 2,348 days — approximately six years and five months — remaining on the sentence. In June, 1961, issuance of a parole violator’s warrant by the Board was recommended on grounds that appellant had harbored his brother, who was wanted for murder, and had assisted in disрosing of the weapon, and for departure from the probation officer’s jurisdiction. On June 15, 1961, the parole violator’s warrant was issued. However, instructions were given by the Board at that time that if the prisoner was facing a local- charge, or in jail or on bond, that execution of the warrant should be withheld until disposition of the charge or further instructions from the Board.
At that time appellant was in custody in Lake County, Indiana, awaiting trial on State charges. In June, 1961, a detainer was lodged with the Sheriff of Lake County, based on the Fеderal parole violator’s warrant. The State charges of harboring a fugitive and aiding in disposing of the weapon were dismissed in March, 1962. Appellant was held for trial and in November, 1962, was convicted in the State court of uttering a fraudulent instrument and sen
In November, 1962, the Board was notified by the Probation Officer for the Northern District of Indiana of these circumstances and that appellant “was committed to the Indiana State Reformatory for a period of two to fourteen years.” No detainer was lodged with the Reformatory. However, in October, 1962, for reasons that are not explained, the United States Marshal had lodged a detainer with the warden of the Indiana State Prison at a different city. A copy of this detainer, sent to the wrong institution and before appellant’s State conviction, was received by the Board and showed a notation that appellant was serving a life sentence at the prison. The detainer in the record also shоwed a handwritten notation dated October 30, 1962, stating “Tickle 11-1-67.”
In November, 1965, appellant was placed on parole by the Indiana State Parole Board and released from the Reformatory. In October, 1966, the Marshal’s office handling the detainers made a periodic check and learned that appellant had not been at the Indiana State Prison; that instead he had been at the Indiana Reformatory at Pendleton at one time, but had been paroled in 1965. The Marshal’s office gave this information to thе Board in March, 1968, in reply to a letter from the Board. No claim is made by the Government of State custody of appellant from his release by the Indiana Reformatory in November, 1965, until his arrest at Denver in July, 1969, except for one brief jail term, noted below.
In February, 1968, thе Federal Board made inquiry of the Indiana State Reformatory concerning appellant’s progress and adjustment for review of the case, and information whether a release date had been set.
On March 19, 1968, the Federal Board instructed the Marshal at South Bend to execute the parole violator’s warrant. He was located, as stated above, in Denver, and there arrested by FBI agents in July, 1969. A letter in July, 1969, from the Denver Probation office to the Board reported a statement by appellant that after parole in 1965, to Federal and State supervision, he had reported once to the State, but not to the Federal officers; that he had traveled to Chicago and Denver without their knowledge оr permission and that he had lived in those cities under his own name, doing day labor work, until he was arrested in July, 1969, in Denver by FBI agents. Appellant first requested a revocation hearing on his return to the Federal Penitentiary; he admitted violation of one or more conditions оf his release; and subsequently he waived testimony of witnesses and representation by counsel for the revocation hearing. In October, 1969, after the hearing, parole was revoked and appellant remained in custody.
As grounds for reversal appellаnt argues that (1) the Board lost jurisdiction by failure of timely issuance and notification of the violator warrant and detainer; (2) that the Board lost.jurisdiction by failure to hold a timely hearing as to the violator warrant issued; and (3) that jurisdiction was lost when the Board failed to use duе diligence in executing the warrant. There is controversy concerning issues (1) and (2) as to whether any prejudice resulted to appellant, but we do not decide those questions. Under the facts and circumstances shown by the Government’s exhibits we feel there was аn unreasonable
The guiding principles are not in controversy. The Board has jurisdiction over a Federal parolee for the maximum period remaining when he is paroled. 18 U.S.C.A. § 4203. Moreover, “[w]hen a parole violator’s warrant is issued during the term of the parole, for good reason shown, the warrant may remain outstanding and be served even after the expiration of the maximum term of the prisoner’s sentence. Incarceration in a state institution during the time the warrant remains unserved is such a ‘good reason’.” Robinson v. Willingham,
We reaffirm these principles but are persuaded that the circumstances before us involve a delay so unreasonable that the Board lоst its right to enforce the warrant in this case. The statute clearly empowers the Board to revoke parole at any time during the original sentence. See 18 U.S.C.A. § 4203. However, we must agree that once a violation has occurred prompting a violatоr’s warrant, Congress did not intend such a warrant to lie fallow indefinitely for execution when the authorities chose to do so. United States v. Gernie,
In connection with the Board’s diligence, the record shows that the detain-er had been lodged at the wrong institution, despite the fact that the Board had been notified in November, 1962, by thе probation officer that appellant was at the Indiana Reformatory, instead of the Indiana Prison. Moreover the Marshal handling the warrant and detainers for the Board had knowledge in October, 1966, that appellant had already been releasеd from the Indiana Reformatory, although the information was apparently not sent to the Board until inquiry was made in March, 1968. And as the record shows, it was not until March 19, 1968, that the Board first took action to direct the execution of the 1961 warrant. Without considering the further passаge of time from March, 1968, until July, 1969, when appellant was arrested, and which may be excused if appellant was not able to be found readily, the prior lack of diligence and inaction were such that lawful authority to enforce the warrant did not remain.
Notes
. This letter from the Board to the Indiana Reformatory refers to an earlier letter of November, 1967, from the Board to the Reformatory concerning appellant, but this item was not included in the Government exhibits.
Dissenting Opinion
(dissenting):
I am compelled to respectfully dissent in this ease because I believe the conclusion reached by the majority is in conflict with prior decisions of this court concerning violators’ warrants.
The majority has correctly set forth the law applicable to the instant case; I dissent only as to the application of that law to the facts. It is firmly established that the issuance of a violator warrant triggers a process which, as a matter of fundamental fairness, must be pursued with reasonable diligence and dispatch. What constitutes a reasonable time is essentially a question of fact which will vary from case to case. Shelton v. United States Bd. of Parole,
Petitioner has shown no prejudice in the delay of revocation of his federal parole. Delay in and of itself is not sufficient to show prejudice, excеpt in extreme cases. Actual prejudice vel non is the focal point of the inquiry here. A parole violator who has succeeded in evading the authorities is in no position to complain of a delay. Shelton v. United States Bd. of Parole, supra. Applied to the instant case, these principles support a finding of lack of prejudice in the delay in executing the warrant. How can it be asserted that the delay was prejudicial when in fact Simon had not yet satisfactorily completed his state parole, and was concealing himself from state and federal authorities at the time of his arrest for federal parole violation? I would affirm.