Sherman v. U.S. Parole Com'n

• Decision Date: 04 September 2007
• Docket Number: No. 05-35364.,05-35364.
• Citation: 502 F.3d 869
• Parties: Brent SHERMAN, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION; Robert A. Hood, Warden; Charles A. Daniels, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

502 F.3d 869

Brent SHERMAN, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION; Robert A. Hood, Warden; Charles A. Daniels, Warden, Respondents-Appellees.

No. 05-35364.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 9, 2006.

Filed September 4, 2007.

Christine Stebbins Dahl, Assistant Federal Defender, Portland, OR, for the petitioner-appellant.

Kenneth C. Bauman (brief), Assistant United States Attorney, Portland, OR; and Kelly A. Zusman (argued), Assistant United States Attorney, Portland, OR, for the respondents-appellees.

Appeal from the United States District Court for the District of Oregon; James A. Redden, District Judge, Presiding. D.C. No. CV-05-00008-JAR.

Before: MELVIN BRUNETTI, T.G. NELSON, and RICHARD A. PAEZ, Circuit Judges.

BRUNETTI, Circuit Judge:

We consider whether an administrative warrant issued pursuant to 18 U.S.C. § 4213(a) for the retaking of an alleged parole violator is subject to the oath or affirmation requirement of the Fourth Amendment's Warrant Clause. We hold it is not and therefore affirm the denial of petitioner's habeas challenge to his detention on an unsworn parole violator warrant.

I

Petitioner Brent Sherman is a federal inmate currently being held by the Bureau of Prisons at the Federal Detention Center in Sheridan, Oregon. In 1982, he was sentenced to twenty-years imprisonment for two counts of bank robbery and one year for failure to appear. In 1985, he escaped and committed armed robbery of another bank, crimes for which he received five years and twenty years, respectively. Because his offenses were committed prior to November 1, 1987, the effective date of the Sentencing Reform Act of 1984 which replaced most forms of "parole" with "supervised release," Sherman received "old law" sentences under the former statutory regime, which remains in effect as to such offenders. See United States v. Kincade, 379 F.3d 813, 817 n. 2 (9th Cir.2004) (en banc); Benny v. U.S. Parole Comm'n, 295 F.3d 977, 981 n. 2 (9th Cir.2002).

Paroled for the first time in 1993, Sherman's parole was revoked two years later for possession of a controlled substance, extortion, and unlawful use of a weapon. He was paroled again in August 1999 and five years later requested a hearing for early termination under 18 U.S.C. § 4211(c)(1). See Benny, 295 F.3d at 982-83. Instead of granting his request, the United States Parole Commission once again initiated revocation proceedings.

In November 2004, the Commission issued a parole violator warrant for Sherman's retaking pursuant to 18 U.S.C. § 4213(a)(2) on the basis of two alleged parole violations: sexual assault (rape) in 2000, and fraud in 2000 and 2002. It is undisputed that the warrant application containing the allegations was unsworn. In December 2004, the U.S. Marshals Service took Sherman into custody on the warrant, and the following month he filed the underlying habeas petition under 28 U.S.C. § 2241 challenging his detention on the ground that the warrant was invalid under the Fourth Amendment because it was not supported by oath or affirmation.

While his habeas petition was pending, Sherman's parole revocation proceedings continued before the Commission. After a preliminary interview, the interviewing officer recommended a finding of probable cause on the fraud charge, but not on the sexual assault charge. The Commission apparently took a somewhat different view. It found probable cause that Sherman had violated his parole, citing both charges, and continued to hold him pending a final hearing on revocation.

Meanwhile, in April 2005 the district court denied Sherman's habeas petition. In a published opinion, Sherman v. Reilly, 364 F.Supp.2d 1216 (D.Or.2005), the court held that Sherman was lawfully detained on an unsworn warrant because, unlike judicial warrants, parole violator warrants issued under 18 U.S.C. § 4213(a) are administrative and not subject to the Warrant Clause of the Fourth Amendment. The court accordingly declined to extend our decision in United States v. Vargas-Amaya, 389 F.3d 901 (9th Cir.2004), in which we held that a supervised release "warrant" within the meaning of 18 U.S.C. §§ 3583(i) and 3606 must comply with the Warrant Clause. Sherman timely appealed.

Before the parties filed their briefs on appeal, however, the Commission revoked Sherman's parole based on the fraud charge while making no findings concerning the sexual assault charge. He remains incarcerated with a presumptive re-parole date of October 13, 2007. The projected full-term date on his aggregate sentence is November 25, 2015.

II

The Government asserted below that Sherman's habeas petition challenging his detention on the unsworn parole violator warrant became moot when the Commission conducted a preliminary hearing and found probable cause that Sherman violated his parole. It also asserted mootness in its brief on appeal, by then predicating the argument on the Commission's intervening revocation of Sherman's parole. At oral argument, however, the Government conceded that this case is within the "capable of repetition, yet evading review" exception to the mootness doctrine. Undertaking our independent obligation to determine our subject-matter jurisdiction in the face of possible mootness, see Dittman v. California, 191 F.3d 1020, 1025 (9th Cir. 1999), we find the Government's concession to be well taken.

The capable of repetition, yet evading review exception has been applied to permit appellate review of constitutional or statutory challenges to pretrial and other initial proceedings despite the regular progression of further proceedings making it "no longer possible to remedy the particular grievance giving rise to the litigation." United States v. Howard, 480 F.3d 1005, 1009 (9th Cir.2007). For instance, in Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), the Court determined that the respondents' convictions did not preclude review of their challenge to their pretrial detentions, which lacked a judicial determination of probable cause. In Howard, 480 F.3d at 1009-10, we applied Gerstein and held that the conclusion of pretrial proceedings did not preclude us from reviewing a courtroom security policy of shackling pretrial detainees during initial appearances. And in United States v. Woods, 995 F.2d 894, 896 (9th Cir.1993), we applied the exception to an inmate's challenge to the revocation of his conditional release under 18 U.S.C. § 4246(f), despite the fact his confinement at the time of appeal was "not due to the revocation order being challenged." By the time we heard his appeal, Woods had been again granted conditional release and then re-confined under another revocation order.

As in those contexts, a parolee's initial detention solely on the authority of a parole violator warrant is by nature temporary and is "not likely to persist long enough to allow for the completion of appellate review" before the Commission either releases the parolee or takes further action providing superceding authority for the detention. Woods, 995 F.2d at 896; accord Gerstein, 420 U.S. at 110 n. 11, 95 S.Ct. 854. Indeed, a parole violator summoned or retaken under 18 U.S.C. § 4213 is entitled to a preliminary hearing on probable cause "without unnecessary delay" and a revocation hearing "within sixty days of such determination of probable cause." Id. § 4214(a)(1)(A), (B). As this case exemplifies, these statutory requirements virtually guarantee the revocation process will be concluded before appellate review of the initial retaking is feasible.

This case is also capable of repetition. The Parole Commission has not retreated from its policy of issuing warrants based on unsworn allegations, and Sherman is scheduled for presumptive re-parole in October 2007 with over eight years remaining on his sentence. During that period of release, his liberty will continue to be conditioned on the Commission's ability to issue a parole violator warrant and retake him based on unsworn allegations. Cf. Woods, 995 F.2d at 896 (applying the exception where the defendant remained subject to a conditional release order, the violation of which led to the revocation order on appeal); Spencer v. Kemna, 523 U.S. 1, 18, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (holding that the exception did not apply because the expiration of petitioner's sentence negated any reasonable expectation of another round of parole and revocation). Moreover, because the Commission's policy is ongoing and generally applicable to all federal parolees subject to retaking, the proper construction of 18 U.S.C. § 4213(a) in relation to the Fourth Amendment is "an issue of continuing and public importance." Woods, 995 F.2d at 896.

For these reasons we agree with the parties that Sherman's appeal from the denial of his habeas petition should not be dismissed as moot. We hold that despite the Parole Commission's issuance of a revocation order providing superceding authority for Sherman's present confinement, we have jurisdiction to review his initial retaking and detention on a parole violator warrant under the exception for cases that are "capable of repetition, yet evading review."

III

The Fourth Amendment rights of parolees are hardly uncharted waters. By now it is clear that parolees are protected against unreasonable searches and seizures. Samson v. California, ___ U.S. ___, 126 S.Ct. 2193, 2197, 2198 n. 2, 165 L.Ed.2d 250 (2006); Latta v. Fitzharris, 521 F.2d 246, 248-49 (9th Cir.1975) (en banc). But their rights also are not coextensive with those of ordinary citizens. We have held that "probable cause is not required to arrest a parolee for a violation of parole. Warrantless arrests of parole violators are also valid." United States v. Butcher, 926 F.2d 811, 814 (9th Cir.1991).

Sherman's habeas petition raises a closely related yet distinct question: When the United States Parole Commission issues a parole violator warrant...