U.S. v. Johnson, 77-1060

Citation563 F.2d 362
Decision Date03 October 1977
Docket NumberNo. 77-1060,77-1060
PartiesUNITED STATES of America, Appellee, v. Melton Clarence JOHNSON, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Daniel R. Sokol and Lawrence J. Altman, Clayton, Mo., filed brief for appellant.

Barry A. Short, U. S. Atty., and Frank A. Bussmann, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.

Before LAY and ROSS, Circuit Judges, and MILLER, Judge. *

LAY, Circuit Judge.

Melton Clarence Johnson appeals a probation revocation order issued by the United States District Court for the Eastern District of Missouri, the Honorable James H. Meredith, presiding. On appeal petitioner asserts that he was denied due process by reason of a four year delay in the execution of the probation violator's warrant. 1 We affirm the order of the district court.

Following a plea of guilty to a charge of interstate transportation of a forged instrument entered on June 5, 1970, the federal district court placed Johnson on probation for a period of three years. On November 14, 1972, Arizona authorities arrested Johnson and charged him with a felony. He pled guilty to a charge of manslaughter and was subsequently incarcerated in the Arizona State Penitentiary. As a result of the Arizona arrest, the district court for the Eastern District of Missouri issued a probation violator's warrant for Johnson's arrest. The unexecuted warrant was lodged as a detainer with the State of Arizona.

The Arizona officials released Johnson to federal custody on September 15, 1976. On September 16, 1976, the district court for the Eastern District of Missouri held a preliminary hearing on his probation revocation. After adjudging him competent, the court revoked Johnson's probation at a final hearing held on January 6, 1977. The court then sentenced Johnson to eight years imprisonment to be served concurrently with his Arizona sentence.

Petitioner asserts that the failure to hold an early hearing on his probation revocation deprived him of due process. The Supreme Court in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), held that an immediate revocation hearing need not be provided on a parole violator's warrant where the parolee was incarcerated on a subsequent conviction by the same sovereign. Although controlling in cases in which parole or probation revocation detainers have been issued from the same jurisdiction within which the prisoner is incarcerated, Moody left open the issue of whether a showing of prejudice in several discrete categories would be sufficient to require a revocation hearing at an early date. 2 See id. at 86-89, 97 S.Ct. 274.

In the present case a sovereign other than the State of Arizona issued the warrant. Johnson thus contends that he was prejudiced in that the failure to hold the federal hearing deprived him of the opportunity to serve a concurring sentence with the state charge. The federal district court did in effect assign a retroactive concurrent sentence to Johnson. However, as has been held on numerous occasions, 3 a federal court's order directing that a federal sentence be served concurrently with an existing state sentence is surplusage since Congress has given the Attorney General of the United States the exclusive authority to designate the place of confinement for the service of a federal sentence. 4 This fact does not inure to petitioner's benefit. Under these circumstances, assuming petitioner had been given an earlier probation hearing and revocation, the federal district court would have been empowered to do no more than what it has already done; that is, make a recommendation as to the federal sentence being concurrent with petitioner's state sentence. Thus, no prejudice has been shown to sustain petitioner's contention.

Petitioner does not allege a prejudicial effect on his opportunity for parole on the Arizona sentence by reason of the federal detainer. Cf. Reddin v. Gray, 427 F.Supp. 386 (E.D.Wis.1977). In denying petitioner's claim we make clear that we leave this issue for another day. 5

We conclude that due process did not require an early hearing in this case: Johnson was not prejudiced in his opportunity to serve concurrent sentences, and the issue of the prejudicial effect of a detainer on petitioner's opportunity for parole is not before the court. The trial court's decision is therefore affirmed.

* The Honorable Jack R. Miller, Judge, United States Court of Customs and Patent Appeals, sitting by designation.

1 On appeal Johnson also contends that the four year delay in the execution of the warrant was in violation of 18 U.S.C. § 3653 which requires that "(a)s speedily as possible after arrest the probationer shall be taken before the court for the district having jurisdiction over him." Johnson's reliance on 18 U.S.C. § 3653 is, however, misplaced since imprisonment on a subsequent charge suspends the effect of § 3653. Cf., e. g., United States v. Bartholdi, 453 F.2d 1225 (9th Cir. 1972); Thomas v. United States, 391 F.Supp. 202, 203-04 (W.D.Pa.1975); United States v. Gernie, 228 F.Supp. 329, 334-35 (S.D.N.Y.1964).

To continue reading

Request your trial
12 cases
  • U.S. ex rel. Caruso v. U.S. Bd. of Parole, 56349
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 5 d4 Janeiro d4 1978
    ...of what effects Moody might have in a situation where a detainer is alleged to impair parole eligibility. United States v. Johnson, 563 F.2d 362, at 364-365 (8th Cir. 1977). And two other circuits have left open the reading which they would give Moody in particular factual situations. Unite......
  • Com. v. Imbruglia
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • 2 d1 Abril d1 1979
    ...with the State sentences arising from the convictions for related offenses. 18 U.S.C. § 4082 (1976). See United States v. Johnson, 563 F.2d 362, 364 (8th Cir. 1977). See also ABA Standards Relating to Sentencing Alternatives and Procedures § 3.5 (Tent. Draft 1967). Even accepting for purpos......
  • U.S. v. Williams
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 18 d3 Setembro d3 1985
    ...retroactively concurrent with his state sentence. 18 U.S.C. Sec. 3653. See Moody, 429 U.S. at 88, 97 S.Ct. at 279; United States v. Johnson, 563 F.2d 362, 364 (8th Cir.1977). The delay did not and could not have hampered Williams' ability to intelligently assess whether to accept the state'......
  • State v. Ellis, 85-547
    • United States
    • United States State Supreme Court of Vermont
    • 22 d5 Janeiro d5 1988
    ...107 Vt. 463, 474, 181 A. 106, 111 (1935); see United States v. Bartholdi, 453 F.2d 1225, 1226 (9th Cir.1972); see also State v. Johnson, 563 F.2d 362, 364 (8th Cir.1977) (four year delay in execution of probation violator's warrant was not denial of due process). Defendant argues that the o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT