APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0927)
Before Gibbons, Weis and Sloviter, Circuit Judges.
After being apprehended on a violator's warrant, petitioner was returned to federal parole supervision within two weeks. Upon release, a new warrant was issued but not executed until after petitioner had pleaded guilty to state criminal charges. The district court found the procedures followed by the Parole Commission permissible but granted petitioner credit for time spent in custody pursuant to the warrants. We affirm.
The matter came to the courts when petitioner, an inmate of the Federal Correctional Institution at Lewisburg, Pennsylvania, asked the United States District Court for the Middle District of Pennsylvania to issue a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1976). The case was referred to a magistrate who recommended that the writ be granted. The district judge, ruling on the basis of undisputed facts, declined to adopt the recommendation and denied the writ, but did grant some credit for time served.
Petitioner received a six year federal sentence in 1971 and was paroled in March 1974. In October 1976, he was arrested by Massachusetts authorities and charged with receiving stolen goods. The United States Parole Commission was notified, but did not take any action to affect petitioner's parole status until it learned that he failed to appear in state court. At that time, the Commission issued a parole violator's warrant dated January 31, 1977. Petitioner was arrested on June 13, 1977 and remained in custody for fourteen days.
Having been advised that Massachusetts would prosecute on the pending charges, the Commission ordered that the January 1977 warrant be withdrawn, petitioner's parole not be revoked, and he be released from custody immediately. On that same day, June 24, 1977, the Commissioner issued a new warrant, listing the identical parole violations as the January 1977 document. This was sent to the United States Marshal in Boston with the following directions:
"Please hold warrant in abeyance. If pending charge results in no-conviction, advise Commission for further instructions. However, should subject change plea to guilty or be found guilty, place a detainer and assume custody if and when released."
The withdrawn January 1977 warrant also included a notation that the warrant had been reissued and was to be held in abeyance.
On September 19, 1977, the Commission supplemented the new warrant by adding to it two additional violations: (1) that on August 12, 1977 petitioner had been indicted by a federal grand jury in Florida and charged with interstate transportation of stolen goods, and (2) that on September 9, 1977 petitioner had pleaded guilty to the Massachusetts charges and had been sentenced to one year in a state correctional institution. The warrant was lodged as a detainer against petitioner in Massachusetts. Although the record does not establish precisely when that action was taken, Commission records show that it was "advised of detainer 10/5/77." Petitioner's original 1971 federal sentence expired October 12, 1977. After conviction on the federal charges in Florida, he was sentenced to seven years imprisonment on January 26, 1978 and assigned to Lewisburg.
In March 1978 the Commission notified the petitioner that it was reviewing the detainer arising from the June 1977 warrant. Petitioner responded that "the parole warrant was dropped on approximately June 27, 1977. My federal parole expired on October 12, 1977." After a dispositional hearing on April 25, 1978, the Commission decided that the detainer would remain on file and that the petitioner would be taken into custody as soon as he was released from the sentence he was then serving at Lewisburg. The Commission notified the petitioner of this decision by letter dated April 25, 1978, but it was not delivered until October, 1978.
In October, 1978 petitioner was granted a release on bond from Lewisburg while the Florida conviction was on appeal. The detainer lodged against him would have prevented his release, but Lewisburg officials notified the Commission that they were unable to locate the June 1977 warrant. To avoid release, the Commission on October 25, 1978 prepared a duplicate of the June 1977 warrant and directed that it be executed. Petitioner was then arrested and continued in confinement at Lewisburg. The Florida conviction was later vacated.
The district court held that the Commission had authority to revoke and reissue the January 1977 warrant. It also found that since the June 1977 warrant had been issued before the expiration of petitioner's sentence, it remained valid thereafter. The October 25, 1978 warrant was determined to be a duplicate of the reissued warrant, and therefore properly executed. Because the detention in June 1977 had been only 14 days, the court concluded that the Commission had not been required to have a hearing, the release accomplishing all that petitioner could have obtained in any event. Even assuming, however, that petitioner had been deprived of a hearing, the court found as a fact that he had not been prejudiced.
On appeal petitioner contends that the document sent to Lewisburg on October 25, 1978 was in actuality a new warrant and not a duplicate of the one issued in June 1977. He also asserts that Maslauskas v. United States Board of Parole, 639 F.2d 935 (3d Cir. 1980), decided by us after the district court entered its ...