Sutherland v. McCall, 82-2149
| Decision Date | 10 June 1983 |
| Docket Number | No. 82-2149,82-2149 |
| Citation | 709 F.2d 730 |
| Parties | Dale H. SUTHERLAND, Appellant, v. Cecil McCALL, Chairman, United States Parole Commission, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C.Civil Action No. 81-00222).
Palmer Singleton, Washington, D.C., for appellant.
Michael A. Stover, Atty., Dept. of Justice, of the Bar of the District of Columbia, Washington, D.C., pro hac vice, by special leave of the Court, with whom Stanley S. Harris, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee. John R. Fisher, Asst. U.S. Atty., also entered an appearance for appellee.
Before BORK, Circuit Judge, MacKINNON, Senior Circuit Judge, and FAIRCHILD, * Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Senior Circuit Judge FAIRCHILD.
Sutherland appeals from the District Court's order and memorandum denying his petition for a writ of habeas corpus as to one of several criminal sentences he is presently serving under parole supervision. 1
Sutherland was sentenced March 25, 1973, to imprisonment for ten years. He was paroled November 15, 1976. 2 On September 26, 1977, while he was still on parole, Sutherland pleaded guilty to possession of counterfeit plates. Sentencing was scheduled for November 7, 1977. On October 25, 1977, the Parole Commission issued a parole violation warrant with an accompanying instruction that if Sutherland were to be committed on a new federal charge, the warrant should not be executed, but the warrant should in such case be lodged as a detainer. On November 5, 1977, two days before sentencing, police, knowing of the parole violation warrant, but unaware of the instruction, arrested Sutherland. On November 7, 1977, Sutherland was sentenced to ten years imprisonment, to run concurrently with prior sentences (later reduced to five). On May 16, 1978, Sutherland received a two to six year sentence, also concurrent, for a third offense.
The Parole Commission, unaware that its parole violator's warrant had apparently been executed, lodged it as a detainer and held no hearing thereon until July 25, 1980. The Commission then revoked parole, but in response to Sutherland's claim that the warrant had been executed on November 5, 1977, the Commission determined that the running of the remainder of the 1973 sentence would be deemed to have commenced on that date. 3
The Commission argues that, under the circumstances, the arrest on November 5, 1977, did not constitute execution of the warrant. Saylor v. U.S. Board of Parole, 345 F.2d 100 (D.C.Cir.1964). Assuming, but not deciding that it did, we address the issue on appeal as whether a thirty-three month delay between Sutherland's arrest on the Commission's parole violator's warrant and his subsequent revocation hearing requires the termination of Sutherland's status as a parolee on the 1973 sentence. 4
Anyone taken into custody by a parole violator's warrant must "receive a revocation hearing within ninety days." 18 U.S.C. Sec. 4214(c) (1976). On the assumption that the warrant had been executed, the Commission's thirty-three month delay in holding a revocation hearing in this case constituted a violation of that statute. The appropriate remedy for a Sec. 4214 default, however, is a writ of mandamus to compel the Commission's compliance with the statute not a writ of habeas corpus to compel release on parole or to extinguish the remainder of the sentence. See Carlton v. Keohane, 691 F.2d 992, 993 (11th Cir.1982); Harris v. Day, 649 F.2d 755, 762 (10th Cir.1981); Northington v. U.S. Parole Comm'n, 587 F.2d 2, 3 (6th Cir.1978) (). The Commission has complied, although thirty months late, with the hearing requirement of Sec. 4214(c).
Habeas relief pursuant to constitutional due process protections recognized in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), is only available where a petitioner establishes that the Commission's delay in holding a revocation hearing was both unreasonable and prejudicial. See Carlton, 691 F.2d at 993; Goodman v. Keohane, 663 F.2d 1044, 1046 (11th Cir.1981); Northington, 587 F.2d at 4. The district court concluded that any delay over ninety days provided by Sec. 4214(c) was unreasonable, but held that the Commission's delay in holding a revocation hearing was not prejudicial where Sutherland was under custody on other criminal sentences for all but the first two days of the thirty-three month delay and was ultimately given full credit for the time served from the day of...
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