Doyle v. Elsea, 80-2556
| Decision Date | 31 August 1981 |
| Docket Number | No. 80-2556,80-2556 |
| Citation | 658 F.2d 512 |
| Parties | James J. DOYLE, Petitioner-Appellant, v. Robert ELSEA, Warden of Oxford, F.C.I., Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Timothy K. Thorson, Madison, Wis., for petitioner-appellant.
Richard E. Cohen, Asst. U. S. Atty., amicus curiae, Madison, Wis., for respondent-appellee.
Before SWYGERT, Senior Circuit Judge, and PELL and BAUER, Circuit Judges.
On November 7, 1973, appellant James J. Doyle was sentenced to serve eight years in prison pursuant to this conviction, in the United States District Court for the District of Connecticut, of interstate transportation of forged travelers' checks. On July 15, 1976, Doyle was released on parole under the supervision of the United States Probation Office for the Southern District of New York. At that time Doyle had 1,949 days remaining on his 1973 sentence.
On December 23, 1977, Doyle and two others were arrested in Pierre, South Dakota. Doyle was charged on both state and federal levels with interstate transportation of stolen travelers' checks. Doyle and his two codefendants were placed in the county jail in Pierre. Bail was set for each; Doyle's was set at $5,000 for the state charge and $10,000 for the federal charge. The three defendants contacted a local bail bondsman and requested him to post a bail bond for them. The bondsman was satisfied that each had sufficient securities and monies to cover the proposed bail bond.
On December 30, 1977, before the bail bond was posted, the Assistant Attorney General for South Dakota became concerned that Doyle might "make bail and disappear." He therefore contacted Doyle's probation officer in New York, explained the situation to him, and requested that the United States Parole Commission issue a parole violation warrant against Doyle "in order that Doyle could be detained and not be able to disappear from their jurisdiction." The Assistant Attorney General's request was granted. The Parole Commission issued the warrant against Doyle on December 30, 1977. 1
At the county jail in Pierre, the bail bondsman posted the bail bond for Doyle's co-defendants but refused to post it for Doyle because of the issuance of the parole violation warrant. The bondsman later stated: "As a matter of policy I do not bail out people who are arrested in Pierre, South Dakota, who have a violator's warrant from the United States Parole Commission." Doyle was unable to raise the full amount of his bail in cash. He therefore remained in pretrial custody in the county jail.
The state charges against Doyle were dropped sometime in January of 1978. The Parole Commission refused to withdraw the violation warrant, however, so Doyle remained incarcerated. On April 24, 1978, he was convicted on the federal charge of transporting stolen checks and was sentenced to serve five years in prison. He began serving his sentence on that date, having spent four months in pretrial custody.
At some time after his 1978 conviction, the Parole Commission lodged the violation warrant as a detainer against Doyle in the federal prison where he was incarcerated.
Thereafter, in February 1980, Doyle petitioned the Parole Commission requesting that credit for the four months he spent in pretrial custody be applied to the time remaining on his 1973 sentence. This request was denied, initially on the ground that since he had not yet had a parole revocation hearing, the remainder of the 1973 sentence had not yet been reimposed. Therefore no credit could be applied to it. 2 At some point before Doyle's final administrative appeal from this decision, a revocation hearing was held. The Parole Commission revoked his parole, and imposed a "violator term" (that is, the remaining 1,949 days of his 1973 sentence) to run consecutively to his 1978 sentence. Doyle continued to press for a four-month credit on his violator term, but such credit was denied on the ground that the four months he spent in pretrial custody had already been credited to his 1978 sentence.
Having exhausted his administrative remedies, Doyle, proceeding pro se, brought the present petition for writ of habeas corpus, 28 U.S.C. § 2241, in the United States District Court for the Western District of Wisconsin. 3 In his petition, Doyle contended he was entitled to have a four-month credit applied to his violator term under 18 U.S.C. § 3568, which provides that a person convicted and sentenced shall receive "credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed." Doyle reasoned that his pretrial custody was "in connection with" his parole violation, and that therefore his violator term must be credited with the pretrial custody.
The district court dismissed the petition without requiring a responsive pleading from the respondent. We affirm.
Doyle places great emphasis on a line of Fifth Circuit cases beginning with Davis v. Attorney General, 425 F.2d 238 (5th Cir. 1970). The Davis court held that when an arrestee's release on bail is precluded because of a federal detainer, and he is ultimately sentenced to prison on the offense underlying the detainer, he is entitled to receive credit on the detainer-related sentence for the time spent in pretrial custody. 4 Doyle would have this court carry Davis and its progeny one step further and hold that such credit must be granted without regard to whether the credit was also applied to the arrest-related sentence. Such a rule would disregard the practical realities of the case before us. We therefore decline to adopt it.
As a practical matter, Doyle spent four months in pretrial custody for two reasons: because he was accused of committing a crime, and because he was accused of violating his parole. It seems obvious and not particularly unusual that he was in pretrial custody "in connection with" both the violator term and the 1978 sentence. Therefore, under section 3568, he is entitled to receive credit for the pretrial custody. That is not to say that he is entitled to double credit. It simply means that he is entitled to have the total amount of time he must spend in prison under his two sentences reduced by the amount of time he spent in pretrial custody.
There is no dispute that Doyle received credit on his 1978 sentence for the full period he spent in pretrial custody. Because the parole violator term was ordered to run consecutively to the 1978 sentence, the effect of applying the credit to the 1978 sentence was to reduce the total amount of time Doyle must actually spend in prison by four months. That, and no more, is what Doyle is due under section 3568. 5
Doyle's pro se habeas corpus petition addressed solely the issue of credit for his pretrial custody. However, Doyle is represented on this appeal by appointed counsel, and he has raised an additional argument which we shall address in the interest of judicial economy.
Doyle now contends that he should be relieved of serving any of his violator term because the Parole Commission failed to give him a parole revocation hearing within a reasonable time after it issued the parole revocation warrant against him. He raises three separate arguments in support of this contention.
First, Doyle claims a due process right to an early revocation hearing. In connection with this contention, he argues that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), controls this case. In Morrissey, the Supreme Court held that the decision to return a parolee to prison solely because of an alleged parole violation requires a preliminary probable cause hearing, and a parole revocation hearing within a reasonable time thereafter, because the parolee has a protected liberty interest in remaining free unless and until he breaks a condition of his parole. Id. at 482, 92 S.Ct. at 2600. Doyle argues that persons accused, not convicted, of committing a crime have protected liberty interests in the same sense that parolees who are accused of violating parole have a protected liberty interest. Doyle urges that the Parole Commission's agreement to prevent Doyle's release on bail constituted an interference with his protected liberty interest. He concludes that this interference should have been accompanied by "some orderly process," Morrissey at 482, 92 S.Ct. at 2601, and that such "orderly process" includes a reasonably prompt parole revocation hearing.
The government, on the other hand, argues that Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), controls this case. In Moody, a parolee was convicted and sent to prison on a new criminal offense. The Parole Commission placed a violation warrant as a detainer against him at the prison where he was confined. His suit to force the Parole Commission to hold a prompt parole revocation hearing was rejected by the Supreme Court. The Court held that because he was already in prison, he had no liberty interest sufficient to trigger the due process requirement of a prompt parole revocation hearing.
Moody is distinguishable from the present case. Doyle argues, and we agree, that as a person accused but not convicted of a new crime, he had a greater liberty interest than did the parolee in Moody. However, Doyle's further argument, that his liberty interest called for the due process protections outlined in Morrissey, is incorrect.
Doyle's position is quite different from that of the parolee in Morrissey, for Doyle found himself in jail not simply because he was accused of violating parole, but, in addition, because he was accused of committing a new crime. His liberty interest and the gravamen of his complaint centers on his attempt to be released on bail. A "reasonably prompt" parole revocation hearing would in no way advance Doyle's interest in such...
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