Simon v. Moseley, 246-70.

• Decision Date: 04 November 1971
• Docket Number: No. 246-70.,246-70.
• Citation: 452 F.2d 306
• Parties: William John SIMON, Appellant, v. Robert I. MOSELEY, Warden, U. S. Penitentiary, Leavenworth, Kansas, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

452 F.2d 306 (1971)

William John SIMON, Appellant, v. Robert I. MOSELEY, Warden, U. S. Penitentiary, Leavenworth, Kansas, Appellee.

No. 246-70.

United States Court of Appeals, Tenth Circuit.

November 4, 1971.

Jay M. Galt, Oklahoma City, Okl. (Watts, Looney, Nichols & Johnson, Oklahoma City, Okl., were on the brief), for appellant.

John J. Immel, Asst. U. S. Atty., Topeka, Kan. (Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., were on the brief), for appellee.

Before HILL, HOLLOWAY and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Appeal is taken from denial of relief on appellant's pro se petition for habeas corpus. Appellant's central contention is that his incarceration under a 1956 bank robbery conviction following a parole revocation is unlawful due to unreasonable delay in handling of a 1961 parole violator's warrant under which he was arrested in July, 1969.

Appellant commenced his pro se habeas proceedings on January 6, 1970, following revocation of his parole in October, 1969. The answer and return of appellee made a general denial and an allegation that there was no unreasonable delay by the Board of Parole (the Board) in executing the warrant. Numerous exhibits were attached by appellee, detailing the facts from appellant's 1956 conviction through his arrest on the parole violator's warrant. After review of the pleadings and documents attached by the Government, the trial court made detailed findings without a hearing and found that there was no unreasonable delay. Relief was denied and this appeal follows.

These essential facts appear in the Government's exhibits and are without material dispute. Appellant was sentenced in June, 1956, for a period of ten years on a bank robbery conviction. In January, 1960, parole was granted with 2,348 days—approximately six years and five months—remaining on the sentence. In June, 1961, issuance of a parole violator's warrant by the Board was recommended on grounds that appellant had harbored his brother, who was wanted for murder, and had assisted in disposing of the weapon, and for departure from the probation officer's jurisdiction. On June 15, 1961, the parole violator's warrant was issued. However, instructions were given by the Board at that time that if the prisoner was facing a local charge, or in jail or on bond, that execution of the warrant should be withheld until disposition of the charge or further instructions from the Board.

At that time appellant was in custody in Lake County, Indiana, awaiting trial on State charges. In June, 1961, a detainer was lodged with the Sheriff of Lake County, based on the Federal parole violator's warrant. The State charges of harboring a fugitive and aiding in disposing of the weapon were dismissed in March, 1962. Appellant was held for trial and in November, 1962, was convicted in the State court of uttering a fraudulent instrument and sentenced for a term of two to fourteen years in the Indiana State Reformatory.

In November, 1962, the Board was notified by the Probation Officer for the Northern District of Indiana of these circumstances and that appellant "was committed to the Indiana State Reformatory for a period of two to fourteen years." No detainer was lodged with the Reformatory. However, in October, 1962, for reasons that are not explained, the United States Marshal had lodged a detainer with the warden of the Indiana State Prison at a different city. A copy of this detainer, sent to the wrong institution and before appellant's State conviction, was received by the Board and showed a notation that appellant was serving a life sentence at the prison. The detainer in the record also showed a handwritten notation dated October 30, 1962, stating "Tickle 11-1-67."

In November, 1965, appellant was placed on parole by the Indiana State Parole Board and released from the Reformatory. In October, 1966, the Marshal's office handling the detainers made a periodic check and learned that appellant had not been at the Indiana State Prison; that instead he had been at the Indiana Reformatory at Pendleton at one time, but had been paroled in 1965. The Marshal's office gave this information to the Board in March, 1968, in reply to a letter from the Board. No claim is made by the Government of State custody of appellant from his release by the Indiana Reformatory in November, 1965, until his arrest at Denver in July, 1969, except for one brief jail term, noted below.

In February, 1968, the Federal Board made inquiry of the Indiana State Reformatory concerning appellant's progress and adjustment for review of the case, and information whether a release date had been set.¹ Letters from the Indiana authorities to the Board in February and March, 1968, said that appellant had been released from the Reformatory in November, 1965, but had absconded from supervision and been declared delinquent in February, 1966, and that they had a report that he was in jail in Nevada for ten days in August, 1966, but had no later information on him.

On March 19, 1968, the Federal Board instructed the Marshal at South Bend to execute the parole violator's warrant. He was located, as stated above, in Denver, and there arrested by FBI agents in July, 1969. A letter in July, 1969, from the Denver Probation office to the Board reported a statement by appellant that after parole in 1965, to Federal and State supervision, he had reported once to the State, but not to the Federal officers; that he had traveled to Chicago and Denver without their knowledge or permission and that he had lived in those cities under his own name, doing day labor work, until he was arrested in July, 1969, in Denver by FBI agents. Appellant first requested a revocation hearing on his return to the Federal Penitentiary; he admitted violation of one or more conditions of his release; and subsequently he waived testimony of witnesses and representation by counsel for the revocation hearing. In October, 1969, after the hearing, parole was revoked and appellant remained in custody.

As grounds for reversal appellant argues that (1) the Board lost jurisdiction by failure of timely issuance and notification of the violator warrant and detainer; (2) that the Board lost jurisdiction by failure to hold a timely hearing as to the violator warrant issued; and (3) that jurisdiction was lost when the Board failed to use due diligence in executing the warrant. There is controversy concerning issues (1) and (2) as to whether any prejudice resulted to appellant, but we do not decide those questions. Under the facts and circumstances shown by the Government's exhibits we feel there was an unreasonable delay in attempting to execute the warrant so that the Board lacked power to arrest appellant under it when he was apprehended in 1969.

The guiding principles are not in controversy. The Board has jurisdiction over a Federal parolee for the maximum period remaining when he is paroled. 18 U.S.C.A. § 4203. Moreover, "when a parole violator's warrant is issued during the term of the parole, for good reason shown, the warrant may remain outstanding and be served even after the expiration of the maximum term of the prisoner's sentence. Incarceration in a state institution during the time the warrant remains unserved is such a `good reason'." Robinson v. Willingham, 369 F.2d 688, 689-690 (10th Cir.); see also Jefferson v. Willingham, 366 F.2d 353 (10th Cir.), cert. denied, 385 U.S. 1018, 87 S.Ct. 744, 17 L.Ed.2d 554; Wright v. Taylor, 294 F.2d 592 (10th Cir.); and Taylor v. Simpson, 292 F.2d 698 (10th Cir.). And where such good reason for delay in executing the warrant exists due to State custody, the parolee has no complaint that such delay is unfair and may deprive him of concurrency in service of Federal and State sentences. See Fitts v. United States, 439 F.2d 769 (10th Cir.); Adams v. Moseley, 434 F.2d 250 (10th Cir.); and Nash v. Moseley, 433 F.2d 923 (10th Cir.). In short, the Board may lawfully proceed to enforce the violator's warrant after the parolee's release from State custody, provided, as discussed below, that it does so promptly and with due diligence.

We reaffirm these principles but are persuaded that the circumstances before us involve a delay so unreasonable that the Board lost its right to enforce the warrant in this case. The statute clearly empowers the Board to revoke...