Shabazz v. Carroll, 84-6391

• Decision Date: 10 April 1987
• Docket Number: No. 84-6391,84-6391
• Citation: 814 F.2d 1321
• Parties: Lennal Khabir SHABAZZ, Plaintiff-Appellant, v. Midge CARROLL, Superintendent, California Institution for Men, United States of America, Attorney General of California and Attorney General, United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1321

814 F.2d 1321

Lennal Khabir SHABAZZ, Plaintiff-Appellant, v. Midge CARROLL, Superintendent, California Institution for Men, United States of America, Attorney General of California and Attorney General, United States, Defendants-Appellees.

No. 84-6391.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 30, 1986.

Decided April 10, 1987.

Lennal Khabir Shabazz, Steven D. Schatz, and David Hazelkorn, Santa Ana, Cal., for plaintiff-appellant.

Robert A. Pallemon, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before MERRILL, GOODWIN and FLETCHER, Circuit Judges.

GOODWIN, Circuit Judge:

Lennal Khabir Shabazz appeals a judgment denying a writ of habeas corpus. Shabazz contends that: (1) his original federal sentence was illegal; (2) his probation was wrongly revoked; (3) the United States Parole Commission wrongfully denied him a parole hearing; (4) the time he spent in state custody should be credited against his federal sentence; and (5) the United States Marshal without lawful authority lodged a "detainer" against him while he was in state custody. Shabazz argues that the district court's review of his petition denied him due process and that the Bureau of Prisons transferred him from a federal prison in Arizona to a federal prison in Texas in violation of Federal Rule of Appellate Procedure 23(a). The government argues that he has failed to exhaust his administrative remedies. We will consider these claims in turn.

Shabazz contends that the original sentence ordered by the district court was illegal because (1) the weekend service component of the sentence usurps the authority of the executive branch to determine the manner in which a prison sentence is served; (2) the sentence exceeds the six-month maximum period of confinement on a "split sentence" under 18 U.S.C. Sec. 3651; and (3) the sentence violates the double jeopardy clause. These arguments are not supported by the relevant cases.

The original sentencing order, which required Shabazz to serve the first 165 days of his seven-year sentence on consecutive weekends in a jail-type institution, suspended the remainder of the sentence and put Shabazz on five years probation, was issued pursuant to 18 U.S.C. Sec. 3651. Section 3651 permits incarceration as a condition of probation. United States v. Velazco-Hernandez, 565 F.2d 583, 584-85 (9th Cir.1977) (per curiam). A court may require the incarceration to be served on weekends. United States v. Clayton, 588 F.2d 1288, 1291 (9th Cir.1979). However, if the sentence is construed as requiring incarceration followed by probation, rather than incarceration as a condition of probation, it would be illegal. Id. We have interpreted a similar sentencing order as imposing incarceration as a condition of probation. See Velazco-Hernandez, 565 F.2d at 584 (written judgment). Moreover, when there is no indication whether probation follows incarceration or incarceration is a condition of probation, we assume the latter. United States v. Rodriguez, 682 F.2d 827, 829 n. 1 (9th Cir.1982). Because we construe the order to impose incarceration as a condition of probation, the sentence was not illegal.

Second, the requirement that Shabazz spend 165 days on consecutive weekends in a jail-type institution does not violate the six-month limitation in 18 U.S.C. Sec. 3651. Although Shabazz would not have completed the incarceration requirement for about 20 months, he would have been confined for less than the 180-day maximum allowed by the statute.

Finally, the imposition of some incarceration as a condition of probation does not, as Shabazz argues, violate the double jeopardy clause of the fifth amendment. Section 3651 specifically authorizes incarceration in a jail-type institution as a condition of probation. Velazco-Hernandez, 565 F.2d at 585. Where Congress has clearly allowed such a sentence, there is no double jeopardy violation even if incarceration as a condition of probation, and the probation itself, are considered multiple punishments for the same offense. See Missouri v. Hunter, 459 U.S. 359, 368-69, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983).

Shabazz's probation was properly revoked because the violations on which the revocation was based took place during the probationary period. As discussed above, the weekend service is interpreted properly as a condition of probation, not incarceration prior to probation. Therefore, Shabazz' probation began at the time of the original sentencing.

The United States Parole Commission is competent to consider the time Shabazz spent in a state prison in determining whether he is entitled to a parole hearing. The district court made no recommendation in either the original judgment and probation order or the judgment revoking probation that Shabazz's federal sentence should be served concurrently with a pending state sentence. See United States v. Terrovona, 785 F.2d 767, 770 (9th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 2926, 91 L.Ed.2d 553 (1986). There were no pending state sentences at the time of the original sentencing.

The state sentence provided that it should run concurrently with the federal sentence. This would permit Shabazz in effect to serve his state sentence in federal prison while serving his federal sentence. In order to accomplish this, Shabazz should have been returned to federal custody to serve his federal sentence. The state authorities failed to return him. Shabazz now asks that this error be corrected by...