Still v. U.S. Marshal, 84-2509

• Decision Date: 23 December 1985
• Docket Number: No. 84-2509,84-2509
• Citation: 780 F.2d 848
• Parties: Minor Michael STILL, Petitioner-Appellant, v. UNITED STATES MARSHAL, United States Parole Commission and Denver Sheriff's Department, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 848

780 F.2d 848

Minor Michael STILL, Petitioner-Appellant, v. UNITED STATES MARSHAL, United States Parole Commission and Denver Sheriff's Department, Respondents-Appellees.

No. 84-2509.

United States Court of Appeals Tenth Circuit.

Dec. 23, 1985.

Stephen M. Munsinger, Keene & Munsinger, Denver, Colo., for petitioner-appellant.

Robert N. Miller, U.S. Atty., and Douglas W. Curless, Asst. U.S. Atty., Denver, Colo., for respondents-appellees.

Before McKAY, LOGAN and SEYMOUR, Circuit Judges.

McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Circuit R. 10(e). The cause is therefore submitted without oral argument.

The issue presented by this appeal is whether the United States Parole Commission has the statutory authority to withdraw a parole violator warrant, once it has been executed, and hold it in abeyance pending the disposition of the state charges which form the basis for the warrant.

Petitioner was originally convicted in federal court of interstate transportation of a stolen vehicle and was sentenced to a five-year term of imprisonment. On February 28, 1984, he was released from prison and placed under the supervision of the Parole Commission. On April 4, 1984, the Commission issued a parole violator warrant charging petitioner with larceny and theft of a motor vehicle. On May 21, 1984, petitioner was arrested by Colorado authorities for auto theft and detained in the Denver jail. The U.S. Marshal sent a message to the Denver Police Department authorizing it to detain petitioner and "remand subject to custody of the U.S. Marshal, Denver, Co." Brief for the Appellant, app. B. The next day, a Deputy U.S. Marshal executed the federal parole violator warrant, stating on the return that he had executed the warrant by arresting petitioner and committing him to the Denver jail. That same day, a U.S. Probation Officer conducted a preliminary interview of petitioner at the U.S. Marshal's office in Denver, Colorado. During the interview, petitioner denied that he had committed larceny or auto theft but admitted that he had committed two technical parole violations. ¹ Accordingly, the probation officer determined there was probable cause to believe that petitioner had violated the conditions of his parole. Petitioner was notified of this finding by a letter from the Parole Commission dated June 5, 1984, addressed to petitioner "c/o U.S. Marshal." Brief for the Appellant, app. f. The letter also informed petitioner that a revocation hearing would be scheduled and that "[n]o new information was presented at [his] Preliminary Interview that would warrant [his] release pending the revocation hearing." Id.

On July 9, 1984, petitioner's counsel contacted the Parole Commission and learned that petitioner's revocation hearing had been canceled on June 21, 1984. On July 13, 1984, petitioner's counsel filed a petition for habeas corpus and mandamus seeking to compel the Parole Commission to grant petitioner a timely revocation hearing. In its answer to the petition, the Commission stated that the parole violator warrant had been withdrawn on June 5, 1985, the same day that petitioner was notified of the results of the preliminary interview. The Commission further stated that the warrant was "to be held in abeyance pending the outcome of State charges." Record, vol. 1, at 6.

The district court denied the petition, finding that "18 U.S.C. Sec. 4213(b) gives the parole commission the authority to postpone the hearing pending the outcome of the state charges." Record, vol. 1, at 20. Petitioner filed a motion for rehearing on the grounds that the district court's Order was based on the misapprehension that petitioner had "always been in state custody from the time of the execution of the warrant...." Record, vol. 1, at 22. The district court entered an Amended Order on October 1, 1984, 593 F.Supp. 1323, making no finding on the question whether petitioner had ever been in federal custody, ² but ruling that "[a] common sense and policy-sensitive reading of the Act yields the conclusion that the Parole Commission is not precluded from withdrawing an executed warrant and then delaying its re-execution." Record, vol. 1, at 25. Petitioner appeals from this Order, contending that the Commission exceeded its statutory authority in withdrawing and holding in abeyance the previously executed warrant. Petitioner also maintains that the procedure used by the Commission in this case is contrary to the due process safeguards announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

In 1976, Congress enacted the Parole Commission and Reorganization Act of 1976, 18 U.S.C. Secs. 4201-4218 (1976), establishing the United States Parole Commission and setting forth a comprehensive procedural scheme governing the parole of federal prisoners. The Act established clear standards for the revocation of parole and, among other things, codified the full panoply of due process rights extended to alleged parole violators in Morrissey v Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Section 4213 of the Act provides that the Commission may initiate parole revocation proceedings using either a warrant or a summons. Regardless of the procedure used, the revocation proceedings must be initiated as soon as practicable after the discovery of the alleged parole violation "except when delay is deemed necessary." 18 U.S.C. Sec. 4213(b) (1976). Ordinarily, imprisonment is not deemed to be grounds for delay; however, when the parolee is charged with a criminal offense, "issuance of a summons or warrant may be suspended pending disposition of the charge." Id.

The Act's procedural requirements are found in section 4214. Under this section, a parolee "retaken" pursuant to a warrant is entitled to a prompt hearing to determine whether there is probable cause to believe that he has committed a parole violation. ³ 18 U.S.C. Sec. 4214(a)(1)(A) (1976). Upon a finding of probable cause, the Act mandates a local revocation hearing within sixty days of the probable cause hearing. 18 U.S.C. Sec. 4214(a)(1)(B) (1976). Where, as here, the parolee admits to a parole violation at the probable cause hearing, the Commission has ninety days from the date of the parolee's "retaking" to conduct a revocation hearing. 18 U.S.C. Sec. 4214(c) (1976).

The Parole Commission and Reorganization Act of 1976 is silent on the question whether the Commission may defer a parole revocation hearing by withdrawing a previously executed parole violator warrant. Respondents contend, however, that such a procedure is authorized by section 4213(b) of the Act, which provides that "in the case of any parolee charged with a criminal offense, issuance of a summons or warrant may be suspended pending disposition of the charge." While this provision gives the Commission sufficient flexibility to defer a parole revocation hearing until the completion of the parolee's new sentence, it does not imply that, once the Commission has triggered the Act's procedural requirements by "retaking" the parolee pursuant to a warrant, see Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976), it can circumvent those requirements by simply withdrawing the warrant. First, we must presume that Congress understood the distinction between "issuance" and "execution," especially since it is only the latter which sets in motion the Act's procedural safeguards. Second, even if section 4213(b) expressly authorized the Commission to suspend execution of a warrant, it would not include the authority to withdraw a warrant once it has been executed. Because of the comprehensiveness of the Act's procedural requirements, we decline to read into it a procedure that Congress could have easily provided for had it so intended.

Respondents have not suggested that any other section of the Act delegates to the Commission the authority exercised here, nor have we been able to discern such a grant of authority from reading the statute. We believe that a restrictive reading of the Act is mandated by the well-established principle of statutory construction that, in the absence of clearly expressed legislative intent, a statute should be construed to avoid difficult constitutional issues. St. Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct. 2142, 2147, 68 L.Ed.2d 612 (1981); NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). In our view, a broad construction of the Act would raise serious due process questions in light of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). However, we do not reach this issue for we find that the Commission exceeded its statutory authority by withdrawing the parole violator warrant and holding it in abeyance.

Respondents rely primarily on two circuit court cases that have held that the Parole Commission may withdraw a previously executed parole violator warrant and reexecute it at a later date. Thigpen v. United States Parole Comm'n, 707 F.2d 973 (7th Cir.1983); Franklin v. Fenton, 642 F.2d 760 (3d Cir. 1980). We believe that these cases are of some doubt, however, and decline to follow them.

In Franklin, the petitioner was on federal parole when he was arrested by state authorities for receiving stolen goods. When the petitioner failed to appear in state court, a federal parole violator warrant was issued. The warrant was executed, and the petitioner remained in federal custody for two weeks. When the state notified the Parole Commission that it intended to prosecute the petitioner, the Commission withdrew the warrant, ordered that the petitioner's parole not be...