Franklin v. Fenton, 79-2652

Citation642 F.2d 760
Decision Date21 October 1980
Docket NumberNo. 79-2652,79-2652
PartiesGordon W. FRANKLIN, Appellant v. FENTON, Warden C.E., Lewisburg Penitentiary, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

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.

OPINION OF THE COURT

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that Massachusetts would prosecute on the pending charges, the Commission ordered that the January 1977 warrant be withdrawn, petitioner's parole not be revoked, and he be released from custody immediately.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 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 final order, controls and requires reversal. We turn first to the latter contention.

In Maslauskas we said that the Parole Board could not unqualifiedly order that the prisoner be released from custody, reinstate him to parole supervision on an executed warrant and simultaneously issue another warrant to be executed in futuro. 1 The opinion noted, however, that it was not necessary to meet the question whether a second warrant could be issued had the first order provided for reconsideration following disposition of the underlying state charges. It can be argued that this is such a case, since the Commission's Order of June 24, 1977 provided that "parole should not be revoked and (parolee) be immediately released from custody. Warrant reissued today with instructions to hold in abeyance." In addition, both the withdrawn and reissued warrants contain language that the second warrant was to be held in abeyance pending resolution of the Massachusetts charges.

In any event, Maslauskas is not controlling here. The second warrant in that case was issued in 1972 and this court in reaching its decision applied the statutory provisions and regulations in effect at that time. See 18 U.S.C. §§ 4205 & 4207 (1970) (repealed 1976). In the case at hand, however, the relevant events occurred after significant changes in the Parole Commission and Reorganization Act of 1976 became effective. 18 U.S.C. §§ 4201-4218 (1976). We therefore look to that statute and its implementing regulations.

It has been the general practice of the Parole Commission to withhold revocation of parole when the parolee initially is charged with a subsequent offense. Its position is that a parolee should have his "day in court" before revocation is considered. If convicted, then the seriousness of the crime and the sentence imposed would be factors in the determination of parole revocation. This delayed proceeding also avoids difficulties encountered in a discussion of the state charges before adjudication as well as possible interference with the parolee's preparation of a defense in the state court. If the parolee is acquitted, then that too must be taken into consideration. See United States ex rel. LiPuma v. Gengler, 411 F.Supp. 948, 950 nn.6 & 7 (S.D.N.Y.1976); Rossello v. Board of Parole, 261 F.Supp. 308 (M.D.Pa.1966).

The policy of deferral is implicitly approved in the 1976 legislation which provides that "in a case of any parolee charged with a criminal offense, issuance of a summons, or a warrant may be suspended pending disposition of the...

To continue reading

Request your trial
20 cases
  • U.S. v. Sczubelek, 03-2173.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • March 21, 2005
    ...of an individual on supervised release, we have addressed similar challenges in the context of parole and probation. See Franklin v. Fenton, 642 F.2d 760 (3d Cir.1980); United States v. Bazzano, 712 F.2d 826 (3d Cir.1983). In Franklin, we rejected the defendant's argument that it was unlawf......
  • U.S. v. Bazzano
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 1983
    ...(citation omitted). This court recently rejected an argument similar to Mollica's in the context of parole revocation. Franklin v. Fenton, 642 F.2d 760, 764 (3d Cir.1980) ("Since the original warrant was issued within the petitioner's original term, it could be executed It is difficult to t......
  • United States v. Norwood
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 8, 2022
    ..."[a]s speedily as possible after arrest," impliedly allowed for hearings outside of the statute's five-year period); Franklin v. Fenton , 642 F.2d 760, 763 (3d Cir. 1980) (holding that 18 U.S.C. § 4213(b) "implicitly approved" of deferring a warrant for revocation of parole until after the ......
  • United States v. Norwood
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 8, 2022
    ..."[a]s speedily as possible after arrest," impliedly allowed for hearings outside of the statute's five-year period); Franklin v. Fenton, 642 F.2d 760, 763 (3d Cir. 1980) (holding that 18 U.S.C. § 4213(b) "implicitly approved" of deferring a warrant for revocation of parole until after the p......
  • 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