Small v. Britton, 73-1482

• Decision Date: 30 July 1974
• Docket Number: No. 73-1482,73-1482
• Citation: 500 F.2d 299
• Parties: Arthur Everett SMALL, Jr., Petitioner-Appellant, v. Samuel J. BRITTON, Warden U.S. Penitentiary, Leavenworth, Kansas, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 299

500 F.2d 299

Arthur Everett SMALL, Jr., Petitioner-Appellant, v. Samuel J. BRITTON, Warden U.S. Penitentiary, Leavenworth, Kansas, Respondent-Appellee.

No. 73-1482.

United States Court of Appeals, Tenth Circuit.

July 30, 1974, Rehearing Denied Sept. 12, 1974.

Thomas R. Moeller, Denver, Colo., for appellant.

Monti Belot, Asst. U.S. Atty., Topeka, Kan. (Robert J. Roth, U.S. Atty. and Bruce E. Miller, Asst. U.S. Atty., Topeka, Kan., on the brief), for appellee.

Before BREITENSTEIN, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

The appellant, under a federal sentence, appeals from an order of the United States District Court for the District of Kansas, dismissing his application for writ of habeas corpus.

In 1967 appellant was sentenced to five years imprisonment by the United States District Court for the District of Colorado following his conviction for violation of 26 U.S.C. 4742(a). In September of 1968 he was paroled to the custody of the State of Colorado on a detainer for service of a state sentence. Appellant was free on bond pending appeal of this state conviction until April of 1969. On April 8, 1969 Small was arrested on a new state criminal charge. The U.S. Parole Board thereupon promptly issued a federal warrant charging him with violation of his parole conditions. Following Small's conviction and sentencing on the state charge in May of 1970 the U.S. Board of Parole, on October 14, 1970, lodged a revocation warrant as a detainer against him with the Colorado State Penitentiary authorities.

On January 23, 1973, Small was paroled by the Colorado authorities to the federal detainer. On March 19, 1973, a parole revocation hearing was conducted at the United States Penitentiary and on March 28, 1973, the Board of Parole revoked Small's parole and continued the matter to expiration. The reason stated for the revocation was the intervening state conviction.

On this appeal, appellant's sole contention is that the Board's delay in affording him a revocation hearing until after completion of his service of an intervening state sentence constituted a violation of his right to due process under the Fifth Amendment requiring cancellation of the parole revocation warrant and thus entitling him to a complete discharge. We disagree.

Preliminarily, we note our rule that while a revocation warrant must be executed within a reasonable time, Simon v. Moseley, 452 F.2d 306 (10th Cir. 1971), incarceration in a state institution has been held to be a good reason for delay in execution of the warrant. See Simon v. Moseley, supra; Small v. United States Board of Parole, 421 F.2d 1388 (10th Cir. 1970), cert. denied 397 U.S. 1079, 90 S.Ct. 1532, 25 L.Ed.2d 815 (1970); Robinson v. Willingham, 369 F.2d 688 (10th Cir. 1966); Taylor v. United States Marshal for Eastern District of Oklahoma, 352 F.2d 232 (10th Cir. 1965). No challenge is made here relating to the validity of the issuance or execution of the parole revocation warrant.

The critical issue, then, is whether the mandates set forth in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), required the Board of Parole to provide Small a 'prompt' revocation hearing following his parole violation even though Small had already been afforded a full trial in state court determinative of his commission of the crime which formed the basis of the parole violation, and even though the revocation warrant had not been executed. To the same extent we must determine whether the delay in its execution was validly excused by reason of Small's incarceration in the state penitentiary.

In Morrissey the Supreme Court held that due process requires a preliminary probable cause hearing and a comprehensive revocation hearing on the issue of whether there has been a parole violation. ¹ In addition, at this latter hearing the parolee may also present circumstances 'in mitigation' which tend to show that the violation, even if proven, does not warrant revocation. Small does not contend that he was not given such a hearing nor that it was unfair. Rather, he contends it is fatally defective due to its delayed timing.

As to the timing of the preliminary hearing the Court in Morrissey stated:

. . . due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

408 U.S. at 485, 92 S.Ct. at 2602.

The Court recognized, however, that there is typically a substantial time lag between the arrest and the eventual determination by the Parole Board as to whether parole should be revoked. As to this latter hearing the Court merely stated that it be afforded 'within a reasonable time after the parolee is taken into custody.' Morrissey, supra, at 488, 92 S.Ct. at 2604.

A federal parolee is not taken into custody until after the parole revocation warrant has been executed. Accord, Cook v. United States Attorney General, 488 F.2d 667 (5th Cir. 1974). 18 U.S.C.A. 4207 provides that a parolee is entitled to a hearing only after he is 'retaken upon a warrant.' If the wording of a provision of a statute is plain, clear and unambiguous, its...