642 F.2d 760 (3rd Cir. 1980), 79-2652, Franklin v. Fenton

Docket Nº:79-2652.
Citation:642 F.2d 760
Party Name:Gordon W. FRANKLIN, Appellant v. FENTON, Warden C.E., Lewisburg Penitentiary, Appellee.
Case Date:October 21, 1980
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 760

642 F.2d 760 (3rd Cir. 1980)

Gordon W. FRANKLIN, Appellant


FENTON, Warden C.E., Lewisburg Penitentiary, Appellee.

No. 79-2652.

United States Court of Appeals, Third Circuit

October 21, 1980

Argued Sept. 18, 1980.

Peter G. Loftus (argued), Scranton, Pa., for appellant.

Frederick E. Martin, Asst. U. S. Atty. (argued), Lewisburg, Pa., Carlon M. O'Malley, Jr., U. S. Atty., Scranton, Pa., for appellee.

Before GIBBONS, WEIS and SLOVITER, Circuit Judges.

Page 761


WEIS, Circuit Judge.

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that Massachusetts would prosecute on the pending charges, the Commission ordered that the January 1977 warrant be withdrawn, petitioner's parole not be revoked, and he be released from custody immediately.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...

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