February 29, 1996 [NOT FOR PUBLICATION]
UNITES STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1750
PETER WHITE,
Petitioner, Appellant,
v.
SHEILA HUBBARD, ET AL.,
Respondents, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, Chief U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Peter White on brief pro se.
Scott Harshbarger, Attorney General, and William J. Duensing,
Assistant Attorney General, Criminal Bureau, on brief for appellees.
Per Curiam. In this habeas corpus proceeding under 28
U.S.C. 2254, petitioner Peter White complains that the
Massachusetts Parole Board abridged his due process rights by
waiting some eleven years before executing a parole violation
warrant against him. During that period, petitioner was
first awaiting trial on, and then incarcerated for, several
federal offenses. We agree with the district court that no
constitutional claim has been presented.
Petitioner is mistaken in arguing that he was entitled
to a revocation hearing prior to his release from federal
custody in 1992. Prior thereto, as the Magistrate-Judge
observed, petitioner was never "taken into custody as a
parole violator by execution of the warrant"--the event that
triggers the right to a prompt revocation hearing. Moody v.
Daggett, 429 U.S. 78, 89 (1976); accord, e.g., United States
v. Chaklader, 987 F.2d 75, 77 (1st Cir. 1993) (per curiam)
(noting that the speedy revocation hearing protection under
the Due Process Clause is "not triggered when the warrant is
placed as a detainer at an institution where the ... parolee
is already in custody awaiting disposition of an intervening
charge or serving a sentence for a crime committed while on
[parole]") (quoting United States v. Wickham, 618 F.2d 1307,
1309 n.3 (9th Cir. 1979)).
Also misplaced is the related contention that the delay
between issuance and execution of the warrant here was so
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unreasonable as to have resulted in a waiver of the parole
board's authority to return petitioner to prison. See
generally, e.g., Bennett v. Bogan, 66 F.3d 812, 818-19 (6th
Cir. 1995); United States v. Tippens, 39 F.3d 88, 90 (5th
Cir. 1994) (per curiam); United States v. Hill, 719 F.2d
1402, 1403-05 (9th Cir. 1983); In re Zullo, 420 Mass. 872
(1995). Petitioner insists that the warrant could have been
served between the time he was released on bail in 1981 and
the time he commenced his federal incarceration in 1983. Yet
it is difficult to conclude that the board acted unreasonably
in deferring action while the federal charges were pending--
especially since state law called for such a result. See
Mass. Gen. L. ch. 127, 149 (1981); see, e.g., In re Zullo,
37 Mass. App. Ct. 371, 373 (1994), vacated and remanded on
other grounds, 420 Mass. 872 (1995); Smith v. State Parole
Board, 17 Mass. App. Ct. 145, 150 n.12 (1983).
Petitioner in any event has failed to demonstrate that
he was prejudiced by the delay. No suggestion has been made
that deferral of the revocation hearing "undermine[d] his
ability to contest the issue of the violation or to proffer
mitigating evidence." Tippens, 39 F.3d at 90. Instead,
petitioner contends only that he was deprived of the
opportunity to serve his federal and state sentences
concurrently. Virtually the identical argument was rejected
in Moody, where the Court noted that the parole commission
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retained the discretion "to grant, retroactively, the
equivalent of concurrent sentences and to provide for
unconditional or conditional release." 429 U.S. at 87;
accord, e.g., Tippens, 39 F.3d at 90; Chaklader, 987 F.2d at
77; United States v. Fisher, 895 F.2d 208, 211 (5th Cir.),
cert. denied, 495 U.S. 940 (1990). That the board here, in
the end, chose not to exercise its discretion in this manner
is without constitutional significance. See, e.g.,
Chaklader, 987 F.2d at 77.
Affirmed.
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