White v. Hubbard

USCA1 Opinion









February 29, 1996 [NOT FOR PUBLICATION]
UNITES STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT



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No. 95-1750

PETER WHITE,

Petitioner, Appellant,

v.

SHEILA HUBBARD, ET AL.,

Respondents, Appellees.


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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.


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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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