Scott v. Clark, 84-3698
| Decision Date | 04 June 1985 |
| Docket Number | No. 84-3698,84-3698 |
| Parties | Alan Neal SCOTT, Petitioner-Appellant, v. John CLARK, Acting Warden F.C.I., and U.S. Parole Commission, Respondents-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Florida.
Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.
Petitioner, a federal prisoner, filed this Sec. 2255 petition to challenge the United States Parole Commission's refusal to withdraw a parole violator detainer. In November 1979 Scott was paroled after serving two years of a five year federal sentence. In September 1980 he was convicted of new federal charges in Tennessee and was given a 15 year sentence that subsequently was reduced to five years.
The Parole Commission lodged a parole violator warrant against Scott. In March 1981 he received an additional two year consecutive federal sentence in another matter. In June 1981 following a dispositional hearing, the Commission revoked Scott's parole, denied credit for the time spent on parole, and determined that his parole violator term would commence upon completion of incarceration on his intervening federal sentences. A detainer based on the parole revocation was lodged against Scott.
This court vacated Scott's original five year sentence and remanded the case for resentencing. U.S. v. Scott, 664 F.2d 264 (11th Cir.1981). The district court resentenced him to a five year term "to commence upon the defendant's due and lawful release from custody under the Federal sentence he is now serving ..." and gave Scott credit for the two years already served.
Scott filed a habeas petition in federal court in Tennessee, alleging that the Eleventh Circuit's vacation of the original sentence voided the parole violator warrant. Scott v. McCall, 708 F.2d 727 (6th Cir.1982). The Sixth Circuit held that vacation of the original sentence did not retroactively deprive the Commission of authority to issue a parole violator warrant, and that Scott must serve the remaining three years of his original sentence after completing the federal sentence for the subsequent offenses.
In the present action Scott challenges the Parole Commission's refusal to withdraw the detainer. Before the district court Scott raised two issues: first, that the failure to withdraw the parole violator warrant and detainer subjected him to double jeopardy, and second, that the Parole Commission failed to follow its regulations in deciding not to execute the parole warrant within the time specified by 28 C.F.R. Sec. 2.47(c)(2) (1980). The district court adopted the report of the magistrate that had recommended denial of both claims.
Scott attempted in district court to raise the issue of the aggregation of the three year sentence with his other sentences for purposes of good time under 18 U.S.C. Sec. 4161 by an "Amendment to Petition for Habeas Corpus" and through objections to the magistrate's report. Neither the magistrate nor the district court considered the issue.
The only possible basis for petitioner's double jeopardy claim is that he is currently serving the remainder of the original five year sentence and thus would be subject to punishment for the same offense again when the detainer becomes effective at the end of his present sentence. This challenge is barred by res judicata. The Sixth Circuit necessarily decided this question in considering Scott's challenge to the parole violator warrant and the detainer. That court decided that the warrant and detainer were valid and not affected by the vacation of Scott's original sentence by this court, and that Scott should serve the remaining three years of the five year term at the end of his present sentence.
Scott also asserts that the Commission did not follow its own guidelines in refusing to execute the warrant within 18 months. At that time 28 C.F.R. Sec. 2.47(c)(2) provided that a revoked parolee's original sentence would start to run at the earlier of either his release from the new sentence or on completion of 18 months of his new sentence. Exceptions to this provision required the approval of two members of...
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