USCA1 Opinion
February 29, 1996 [NOT FOR PUBLICATION]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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