Turner v. U.S. Parole Com'n

• Decision Date: 24 May 1991
• Docket Number: No. 89-6341,89-6341
• Citation: 934 F.2d 254
• Parties: Larry Dean TURNER, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION; Jack Cowley, Warden; Attorney General of the United States, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 254

934 F.2d 254

Larry Dean TURNER, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION; Jack Cowley, Warden Attorney General of the United States Respondents-Appellees.

No. 89-6341.

United States Court of Appeals Tenth Circuit.

May 24, 1991.

Vicki Mandell-King, Asst. Federal Public Defender, Denver, Colo. (Michael G. Katz, Federal Public Defender, with her on the briefs), for petitioner-appellant.

Larry Dean Turner, Lexington, Okl., filed pro-se brief.

M. Kent Anderson, Asst. U.S. Atty., Oklahoma City, Okl. (Timothy D. Leonard, U.S. Atty. and Vicki Zemp Behenna, Asst. U.S. Atty., with him on the brief), for respondents-appellees.

Before ANDERSON, BALDOCK and EBEL, Circuit Judges.

STEPHEN H. ANDERSON, Circuit Judge.

The central issue in this case is whether the United States Parole Commission had authority to issue a second parole violator warrant based upon appellant's felony conviction in state court, when the Commission had previously executed a parole violator warrant, considered the underlying facts in the state charge, and had reinstated the appellant to supervision. The district court, in an able and detailed opinion, held that the Parole Commission properly issued the second warrant, and denied appellant's petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2241. We fully agree with the district court's analysis of the case, and affirm.

BACKGROUND

Larry Turner was paroled on December 27, 1983, from a 15-year federal sentence for conspiracy and procuring another to commit perjury. On June 15, 1987, he was arrested and charged by Oklahoma state authorities with knowingly concealing stolen property. As a result of that charge, on July 2, 1987, the United States Parole Commission ("Parole Commission" or "Commission") issued a parole violator warrant, pursuant to 18 U.S.C. Sec. 4213, charging Turner with knowingly concealing stolen property (a bulldozer), as well as failing to report his state arrest to his federal probation officer within two days of the arrest. United States Marshals executed the warrant on July 8, 1987. Turner was taken into federal custody and transferred to the federal facility at El Reno, Oklahoma. Parole revocation proceedings pursuant to 18 U.S.C. Sec. 4214(a)(1) ¹ followed.

On July 10, Turner's parole officer conducted a preliminary interview with Turner at F.C.I. El Reno and determined that there was probable cause to believe that Turner had violated the conditions of his parole. On July 28, 1987, Turner was notified by letter that the Parole Commission had found probable cause to believe that he had violated his conditions of parole, and a revocation hearing was ordered. The specific charges set forth against Turner were the state felony offense and Turner's failure to report his arrest on the offense. Turner was then ordered transferred to the F.C.I. Texarkana for purposes of the revocation hearing, as well as for confinement if his parole was revoked. On September 16, 1987, a Parole Commission hearing panel The summary from the revocation hearing reflects that Turner appeared with counsel and testified in his own behalf. He admitted that he failed to report his arrest, but denied concealing stolen property. Following its review of the evidence, the panel found that Turner had violated his parole conditions by failing to report his arrest, but that the violation was insufficient to revoke parole. As to the felony charge, the panel concluded that, due to a number of inconsistencies in the testimony, there was "not sufficient evidence to support a preponderance finding." R.Vol. I, Tab 12, Exh. 9 at 7. The panel then recommended "that no decision be made on the knowingly concealing stolen property. It is recognized that this charge continues to be in limbo in state court and that additional information may be developed in form of a later conviction." Id. On October 5, 1987, the regional commissioner issued a Notice of Action stating that there was no finding sufficient for revocation and ordering Turner's reinstatement to parole forthwith. On the same date, the Parole Commission authorized the warden of the F.C.I. Texarkana to release Turner. He was released from federal custody on October 6, 1987 and taken into custody by state authorities.

conducted a revocation hearing, even though the state charge was still pending.

The following month, Turner was tried and convicted in state court on the knowingly concealing stolen property charge, and was subsequently sentenced to 20 years in state prison as required by Oklahoma law relating to defendants who have prior convictions. The Parole Commission was notified of Turner's conviction on December 7, 1987. Based on that conviction, the Commission then issued a second parole violator warrant. The Commission directed the United States Marshal not to execute this warrant, but to place it as a detainer against Turner while he served his state court sentence, and assume his custody after he is released from that sentence. R.Vol. I, Tab 12, Exh. 16. After a dispositional record review on February 15, 1989, the Commission determined that the detainer should stand. R.Vol. I, Tab 12, Exh. 26.

Turner unsuccessfully appealed that determination, then filed this habeas action in the district court. Because of the substantial questions raised in Turner's petition, we authorized the appointment of the federal public defender to represent Turner on appeal. We have been furnished with an excellent brief by the public defender, and briefs by Turner as well.

The Parole Commission's decisions to grant or revoke parole will be reversed only if they are arbitrary, capricious or constitute an abuse of discretion. Misasi v. United States Parole Comm'n, 835 F.2d 754, 758 (10th Cir.1987). However, the question of whether a Parole Commission's action lies within the permissible scope of the Commission's authority is a question of law to be reviewed de novo. Supre v. Ricketts, 792 F.2d 958, 961 (10th Cir.1986) (review de novo where resolution of issue depends primarily on consideration of legal principles); see Still v. United States Marshal, 780 F.2d 848 (10th Cir.1985); Maslauskas v. United States Bd. of Parole, 639 F.2d 935 (3d Cir.1980). Our task is to interpret the statutory provisions and set aside the Commission's actions if, in light of the whole record, they are "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. Sec. 706(2)(C) (1977) (applicable to the Parole Commission under 18 U.S.C. Sec. 4218(c)).

DISCUSSION

The sole issue before us is whether the second warrant falls within the Parole Commission's statutory authority.

In 1976, Congress established the Parole Commission under the Parole Commission and Reorganization Act of 1976 ("Act"), 18 U.S.C. Secs. 4201, et seq., ² and set forth the factors and procedures governing the parole of federal prisoners. Within these statutory constraints, Congress granted The Act is silent as to the question of whether a second warrant may be issued on the same underlying violation of law for which a previous warrant has been executed and a revocation hearing has been held. Turner seizes on this silence as dispositive, contending that our decision in Still v. United States Marshal, 780 F.2d 848 (10th Cir.1985), establishes that the Commission is empowered to do only those acts expressly authorized by 18 U.S.C. Secs. 4213 and 4214. We disagree.

the Parole Commission wide, discretionary authority to grant or revoke parole. S.Rep. No. 369, 94th Cong., 2d Sess. 19 (1976), U.S.Code Cong. & Admin.News 1976, 335, 341 ("[parole] is a matter of administrative discretion"); Wallace v. Christensen, 802 F.2d 1539, 1544-46 (9th Cir.1986) (en banc); Taylor v. United States Parole Comm'n, 734 F.2d 1152, 1155 (6th Cir.1984); Timpani v. Sizer, 732 F.2d 1043, 1047 (2d Cir.1984); Stroud v. United States Parole Comm'n, 668 F.2d 843, 845-46 (5th Cir.1982); see 18 U.S.C. Sec. 4206(c) (for good cause, Commission may grant or deny release notwithstanding statutory guidelines governing release); 18 U.S.C. Secs. 4214(a)(1)(A), (d) (within Commission's discretion to determine which action to take after finding that parolee violated parole conditions).

In Still, a parole violator warrant was issued and executed, and a preliminary interview held at which the Parole Commission found probable cause that Still had violated his parole. Thereafter, the Commission attempted to withdraw the parole violator warrant and to hold the warrant in abeyance pending the outcome of state charges upon which the parole violator warrant was based.

The issue in Still was "whether the Commission may defer a parole revocation hearing by withdrawing a previously executed parole violator warrant." Id. at 851. We held that "the Commission exceeded its statutory authority in withdrawing the parole violator warrant and therefore delaying petitioner's revocation hearing...." Id. at 853. That holding was based upon the majority's view that once a parolee is retaken by virtue of the execution of the parole violator warrant, the Act's procedural requirements are triggered and must be observed. Id. at 851. This view finds its basis in the due process safeguards announced in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), which were codified in the Act. In Morrissey, the Supreme Court held that a parolee may not be deprived of his conditional liberty through the execution of a parole violator warrant, without the basic due process safeguards of notice, prompt hearing, counsel, confrontation, and the opportunity to present evidence.

While Still stands for the proposition that once taken into custody a parolee is entitled to the hearing procedures provided under the Act, it does not address whether or not full scale proceedings in accordance with the Act may be instituted twice with respect to the same underlying state criminal charge. Turner argues that...