NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-226
DARRIEN GOETZENDANNER,1 petitioner.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The petitioner appeals from the denial by a Superior Court
judge of his petition for a writ of habeas corpus under G. L.
c. 248, § 1, and from the denial of his motion for relief from
that order pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828
(1974) (rule 60 [b]). The petitioner contends that he is
entitled to immediate release from serving the balance of his
sentences on his 1983 convictions because, following convictions
of intervening offenses he committed while out on parole in
1993, this court's belated modification of his sentencing scheme
in Goetzendanner v. Superintendent, Mass. Correctional Inst.,
Norfolk, 71 Mass. App. Ct. 533, 541 (2008) (Goetzendanner I),
violated double jeopardy principles and clearly established
Federal law. The petitioner also argues that the Commonwealth's
1 Also known as Jahrab S. Allah. The petitioner reportedly
legally changed his name around 2001. As is our custom, we use
the name that appears on the complaint.
ten-year delay in implementing the change in his sentencing
structure waived its right to enforce the remainder of his 1983
sentences, and the failure to schedule a timely final parole
revocation hearing for those sentences violated his due process
rights. We affirm.
Background. We summarize the procedural history of this
case that led to our decision in Goetzendanner I, and to the
present issues on appeal.
In February 1983, the petitioner was convicted of, among
other crimes, armed assault with intent to rob and murder. He
was ordered to serve concurrent sentences (reformatory
sentences),2 the longest of which was twenty years.
Eight years later, in June 1991, the petitioner was
released on parole from these sentences. The petitioner was
charged with new crimes while out on parole, including multiple
counts of aggravated rape and kidnapping. In response, the
parole board (board) provisionally revoked the petitioner's
2 A "reformatory sentence," also known as a "Concord sentence,"
was a "sentencing option widely used by Superior Court judges in
the 1980's," until its abolition in 1994. Commonwealth v.
Thurston, 53 Mass. App. Ct. 548, 554-555 (2002). This type of
sentence involved "the imposition of an apparently long sentence
on an individual deemed capable of rehabilitation . . ., not to
the State prison at M.C.I., Walpole (now called Cedar Junction)
but rather to the State 'reformatory' at M.C.I., Concord, with
parole eligibility arising after a small fraction . . . of the
stated sentence pursuant to parole board policies and
regulations." Id. at 555.
2
parole, and issued a parole violation warrant on March 31, 1992.
Pending the outcome of the petitioner's new criminal charges,
the parole violation warrant was lodged against the petitioner
as a detainer.3
On February 5, 1993, the petitioner was convicted of
assault and battery by means of a dangerous weapon, two counts
of aggravated rape, and kidnapping (intervening offenses),4 for
which he received concurrent sentences, including committed
sentences of from twenty to thirty years in prison.5 At this
time, the petitioner had about four years left to serve on his
reformatory sentences. See Goetzendanner I, 71 Mass. App. Ct.
at 541. The Department of Correction (department) deemed the
effective date of return of the parole violation warrant as
February 5, 1993, and "treated [the petitioner] as a returned
parole violator with new sentences to be served after completion
of the reformatory sentences." Id. at 535. "On this basis, the
department calculated that [the petitioner] completed his
3 A detainer is "[a] writ authorizing a prison official to
continue holding a prisoner in custody." Black's Law Dictionary
543 (10th ed. 2014).
4 "Any sentence for a crime committed while the petitioner is on
parole, that is imposed prior to service of the parole violation
warrant, is an intervening sentence." Goetzendanner I, 71 Mass.
App. Ct. at 534 n.3.
5 The sentencing judge ordered that the intervening sentences "be
served from and after the exp[i]ration of all previous sentences
which [the petitioner] has been ordered to serve."
Goetzendanner I, 71 Mass. App. Ct. at 540.
3
reformatory sentences on February 1, 1997, and on that date
formally discharged him [of those sentences]," and "invoked the
intervening sentences." Id. at 535-536.
In 2003, the petitioner filed a petition for a writ of
habeas corpus in the Superior Court. The petitioner sought
immediate release on the grounds that he was serving illegal or
improperly imposed sentences because the law required him to
first complete his intervening sentences before serving the
remainder of his reformatory sentences. See Goetzendanner I, 71
Mass. App. Ct. at 534. A Superior Court judge denied the
petition. Id. The petitioner appealed.
In an April 2008 decision, this court denied the
petitioner's request for habeas corpus relief, and instead
treated his petition as a claim for declaratory relief.
Goetzendanner I, 71 Mass. App. Ct. at 534-535. We held that
"the department improperly executed [the petitioner's] sentences
when it required [the petitioner] first to serve the four years
remaining on his reformatory sentences and, on February 1, 1997,
discharged him of those sentences, prior to invoking his
intervening sentences." Id. at 541. We vacated the judgment
and remanded the matter to the Superior Court, ordering that a
declaration enter that the petitioner "began serving his 1993
intervening sentences on February 5, 1993, with 320 days of
credit, and that the remaining time of his reformatory sentences
4
will not commence until the expiration by parole or otherwise of
his intervening sentences."6 Id. On August 8, 2008, the Norfolk
Superior Court issued a modified judgment in accordance with
this court's directive.
Over ten years later, in November 2018, the department
reportedly notified the board that the petitioner would complete
his intervening sentences on February 28, 2019. Soon
thereafter, in January 2019, the board amended the date of the
petitioner's parole violation warrant for his reformatory
sentences in accordance with the 2008 modified judgment. The
warrant was then lodged as a detainer behind the petitioner's
intervening sentences. When the petitioner's intervening
sentences expired, on February 28, 2019, the service of the
parole warrant was deemed effective, and the petitioner remained
in custody.
Soon thereafter, the board scheduled a final parole
revocation hearing for the petitioner's reformatory sentences,
on April 5, 2019.7 The hearing was postponed at the petitioner's
6 The petitioner sought further appellate review, which the
Supreme Judicial Court denied. Goetzendanner v. Superintendent,
Mass. Correctional Inst., Norfolk, 451 Mass. 1107 (2008).
7 "The purpose of the final revocation hearing is to determine,
whether the parolee violated one or more conditions of parole;
if a violation occurred, whether parole status should be finally
revoked; and, if parole status is revoked, whether release to
the community is appropriate." 120 Code Mass. Regs. § 303.16(1)
(2017).
5
request.8 Later that month, on April 19, the petitioner filed a
second petition for a writ of habeas corpus in the Superior
Court seeking his immediate release. The petition raised four
grounds for relief: (1) the board's failure to schedule a
timely final parole revocation hearing on the petitioner's
reformatory sentences in 2008, at the same time of his initial
parole release hearing on the intervening sentences, violated
due process; (2) the Commonwealth waived its right to execute
the parole violation warrant and impose the balance of the
petitioner's reformatory sentences when it failed to implement
the modification in his sentencing scheme for over ten years;
and (3) this court's 2008 decision in Goetzendanner I,
restructuring the petitioner's sentencing scheme, violated
double jeopardy and clearly established Federal law. A Superior
Court judge denied the petition. The petitioner appealed.
In March 2021, the petitioner filed a "motion for relief
from order" in the Superior Court, arguing that relief was
warranted under rule 60 (b) because the judge that ruled on his
habeas petition erred in finding that his double jeopardy
argument lacked merit because the length of his sentences had
not increased due to the change in his sentencing structure.
8 The petitioner's final parole revocation hearing was held in
May 2020. The petitioner was later released from custody on
parole supervision on November 16, 2020.
6
According to the petitioner, the duration of his reformatory
sentences increased by nearly two years because of this court's
2008 decision. The same Superior Court judge also denied this
motion, and the petitioner again appealed. The petitioner's
appeals from the order denying his April 2019 writ of habeas
corpus petition and the order denying his March 2021 motion for
rule 60 (b) relief have been consolidated here.
Discussion. "A habeas corpus petitioner must establish
that (1) there has been a violation of the State or Federal
Constitution or laws; (2) the violation has deprived him of his
personal liberty; and (3) he is entitled to immediate release
from the custody of the respondent." Goetzendanner I, 71 Mass.
App. Ct. at 538. The petitioner asserts that he is entitled to
immediate release from serving the balance of his reformatory
sentences on the same grounds set forth in his motions in the
Superior Court, listed supra. We address each in turn.
1. Due Process. a. Final parole revocation hearing. The
petitioner first argues that he was deprived of a
constitutionally protected liberty interest secured under the
due process clause of the Fourteen Amendment when the board
failed to schedule a timely final parole revocation hearing,9 as
required by applicable regulations.
9 "The Fourteenth Amendment [to the United States Constitution]
prohibits any State from depriving a person of life, liberty, or
7
The parties agree that under 120 Code Mass. Regs.
§ 303.18(2) (1997),10 the petitioner was entitled to a final
parole revocation hearing on his reformatory sentences in 2008,11
at the same time of his initial parole release hearing for his
intervening sentences. See Royce v. Commissioner of Correction,
390 Mass. 425, 427 (1983) ("[A]gency regulations have the 'force
of law'" [citation omitted]). The petitioner alleges that the
ten-year delay in holding his final parole revocation hearing
denied him the protections set forth in Morrissey v. Brewer, 408
U.S. 471, 488-489 (1972), including the right to a revocation
hearing "within a reasonable time after [being] taken into
property without due process of law" (citation omitted). Butler
v. Turco, 93 Mass. App. Ct. 80, 83 (2018). "A liberty interest
may arise from the Constitution itself, or it may arise from an
expectation or interest created by State laws or regulations."
Id., and cases cited. Generally, in the prison context, liberty
interests are limited to "freedom from restraint which . . .
imposes atypical and significant hardship . . . in relation to
the ordinary incidents of prison life." Id., quoting Sandin v.
Conner, 515 U.S. 472, 484 (1995).
10 "Where the parolee is serving an intervening sentence, the
Massachusetts Parole Board schedules the final parole revocation
hearing at the same time as the initial parole release hearing
for that intervening sentence unless the Board Members choose,
by office vote, to conduct a revocation hearing at an earlier
time." 120 Code Mass. Regs. § 303.18(2) (1997). The current
regulations employ essentially the same language, with one
material difference being the use of the words "shall schedule."
See 120 Code Mass. Regs. § 303.17(2) (2017).
11 The petitioner was offered a final parole revocation hearing
on his reformatory sentences in April 1994, pursuant to the
original parole violation warrant, which this court later found
to be ineffective. See Goetzendanner I, 71 Mass. App. Ct. at
540. The petitioner refused to appear for the hearing, and the
board denied parole.
8
custody." Id. at 488. The due process procedures discussed in
Morrissey, supra at 489, however, concerned the accuracy of the
factual determination of a violation.12 Here, the gravamen of
the petitioner's claim is that, had his final parole revocation
hearing been timely scheduled (or at least held sometime before
the expiration of his intervening sentences), the board may have
elected to terminate his reformatory sentences or have them run
concurrent with his intervening sentences. Thus, the issue is
not that the petitioner was denied due process in defending
against the revocation of his parole,13 see United States v.
Throneburg, 87 F.3d 851, 853 (6th Cir. 1996) ("due process
concerns about delay come into play only when the delay has
prejudiced the defendant's ability to contest the validity of
the revocation"), but rather, that he was denied opportunities
12 Those minimum due process procedures included "(a) written
notice of the claimed violations of parole; (b) disclosure to
the parolee of evidence against him; (c) opportunity to be heard
in person and to present witnesses and documentary evidence; (d)
the right to confront and cross-examine adverse witnesses . . .;
(e) a 'neutral and detached' hearing body such as a traditional
parole board, members of which need not be judicial officers or
lawyers; and (f) a written statement by the factfinders as to
the evidence relied on and reasons for revoking parole."
Morrissey, 408 U.S. at 489.
13 The basis of the revocation of the petitioner's parole on his
reformatory sentences was his convictions of the intervening
offenses, which included aggravated rape and kidnapping. As
argued by the board, given these new criminal convictions, the
revocation of the petitioner's parole status was all but
certain. See 120 Code Mass. Regs. § 303.22(4) (2017) (parole
revocation determination based on preponderance of evidence
standard).
9
to request that the board terminate his reformatory sentences or
permit him to serve his sentences concurrently.
We have previously suggested that, "[u]pon a liberal
reading" of the Supreme Court's decision in Moody v. Daggett,
429 U.S. 78 (1976),14 an individual might, "on particular facts,"
be able to establish a due process violation from a delayed
parole revocation determination based on prejudice arising from
a missed opportunity to secure parole for an intervening
sentence. Smith v. State Parole Bd., 17 Mass. App. Ct. 145,
151-152 (1983). However, that is not this case.
While we do not condone the significant delay in holding
the petitioner's final revocation hearing, in the circumstances
presented, see Emma v. Massachusetts Parole Bd., 488 Mass. 449,
457 (2021) ("due process is flexible and calls for such
procedural protections as the particular situation demands"
[citation omitted]), we "conclude that it did not 'amount to
legal prejudice that permits a conclusion that a due process
violation . . . occurred" (citation omitted). Doucette v.
Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 538 (2014).
The petitioner's assertion of prejudice rests primarily on
14"[T]here is no constitutional right to a prompt parole
revocation hearing when the parolee is serving an independent
intervening sentence in the same jurisdiction." Smith v. State
Parole Bd., 17 Mass. App. Ct. 145, 151 (1983), quoting Hopper v.
United States Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983).
10
speculation over decisions that the board may have made --
decisions that, on this record, were not likely to come to
fruition.15 The petitioner had no right to serve his sentences
concurrently. See Commonwealth v. Collins, 31 Mass. App. Ct.
679, 684 (1991). Nor did he have a liberty interest in a future
grant of parole. See Doe v. Massachusetts Parole Bd., 82 Mass.
App. Ct. 851, 858 (2012). Even if we were to conclude that the
petitioner's due process rights were infringed due to the
prolonged delay of his final revocation hearing, the petitioner
has not cited any authority to support his claim that he is
entitled to immediate release from serving the balance of his
reformatory sentences in these circumstances.16 See Stewart,
15 The board revoked the petitioner's parole on at least three
separate occasions between 1985 and 1991. See Goetzendanner I,
71 Mass. App. Ct. at 535 n.5. Given the severity of the
petitioner's intervening offenses, which served as the basis for
the fourth revocation of his parole, it is unlikely that the
board would have been inclined to grant his request to serve his
reformatory sentences concurrently with his intervening
sentences, particularly where the sentencing judge had specified
that the intervening sentences (including twenty to thirty
years) be served consecutive to any other sentence the defendant
had been ordered to serve. The petitioner's claim of prejudice
is further belied by the fact that he refused to attend his
initial parole release hearing on his intervening sentences in
July 2008, and subsequently waived or refused to appear before
the board for each of his annual review hearings from 2009 to
2018.
16 Although the loss of opportunities to seek reparole and
concurrent sentences from the board is certainly evidence of
actual, not just theoretical, prejudice, we conclude that, on
this record, it is "not so substantial as to justify the
[petitioner's] release" from serving the remainder of his
sentences. Commonwealth v. Blake, 454 Mass. 267, 281 (2009)
11
petitioner, 411 Mass. 566, 569 (1992). Accordingly, habeas
relief is not permitted. See Sheriff of Suffolk County v.
Pires, 438 Mass. 96, 100 (2002) (habeas relief "available only
where granting the writ would result in the petitioner's
immediate release from custody").
b. Waiver. Next, the petitioner asserts that the board --
or, broadly speaking, the Commonwealth -- waived its right to
enforce his parole violation warrant and impose the balance of
his reformatory sentences when it waited over ten years to amend
the petitioner's parole violation warrant and implement the
modification of his sentencing structure. Again, we disagree.
To support this claim, the petitioner first directs us to
Zullo, petitioner, 420 Mass. 872 (1995). There, the Supreme
Judicial Court considered whether "the belated service of a
parole revocation warrant results in the board's loss of the
authority to seek revocation of parole." Id. at 873. The court
explained that the weight of authority from other jurisdictions
that have addressed the issue was:
"if the whereabouts of the parole violator was known . . .
and an 'unreasonable' amount of time elapsed during which
the State authorities took no action to enforce the parole
violation, the State has waived its right to execute the
balance of the parolee's prison sentence and the State
courts have no 'jurisdiction' to revoke parole."
(Gants, J., concurring). See also Commonwealth v. Burhoe, 3
Mass. App. Ct. 590, 595 (1975) (alleged loss of opportunities
for parole and concurrent sentences because of pretrial delay
"too speculative and insubstantial" to warrant dismissal).
12
Id. at 875.17 This principle is not applicable in the instant
case.
Here, the petitioner's parole violation warrant was lodged
as a detainer behind his intervening sentences. As we stated in
Goetzendanner I, 71 Mass. App. Ct. at 540, "[a]ny purported
service of the parole warrant [before the petitioner completed
his intervening sentences] was ineffective." See G. L. c. 127,
§ 149.18 Once the petitioner's intervening sentences concluded,
the warrant was executed, and the petitioner remained in
custody. There was thus no delay in the service or enforcement
of the warrant. Further, absent from the record is evidence
that the petitioner reasonably relied on any government
inaction,19 or that he suffered prejudice warranting the relief
17 The court emphasized two relevant factors for consideration:
"(a) the extent to which the parolee reasonably relied on the
inaction of the enforcing authorities, and (b) the prejudice
that the delay in the attempted enforcement may have caused to
the parolee in defending against the attempt to revoke parole or
otherwise." Zullo, petitioner, 420 Mass. at 876. A third
consideration was the reasonableness of the delay. Id. at 877.
18 "Service of the parole violation warrant shall be made
effective forthwith upon arrest and imprisonment of the parole
violator unless he is convicted of commission of a crime or
found guilty of violating the conditions of federal or another
state's parole or probation, then service of said parole
violation warrant shall not be effective until the expiration of
any additional sentences by parole or otherwise." G. L. c. 127,
§ 149.
19 The petitioner contends that during the ten-year delay at
issue, his parole officer repeatedly told him that he had
completed his reformatory sentences and would not have to serve
them again. Although we appreciate the frustration this may
13
he seeks. Cf. Commonwealth v. Vith Ly, 450 Mass. 16, 22
(2007);20 Zullo, petitioner, 420 Mass. at 876. There was no
waiver here.
3. Remaining claims. Finally, the petitioner argues that
this court's 2008 decision, correcting his sentencing scheme to
require that he serve the remainder of his reformatory sentences
after the completion of his intervening sentences, violated
have caused, this is not the type of reliance contemplated to
warrant the removal of the board's jurisdiction to revoke
parole. Cf. Zullo, petitioner, 420 Mass. at 876. Moreover,
this court's 2008 decision should have placed the petitioner on
notice that he would serve the remainder of his reformatory
sentences once his intervening sentences expired. See
Goetzendanner I, 71 Mass. App. Ct. at 541.
20 Vith Ly, 450 Mass. at 22, on which the petitioner relies, is
also inapposite. In that case, the defendant's State prison
sentences were stayed pending an appeal that was ultimately
unsuccessful. See id. at 16-17. Due to an error, the stay was
not lifted, and the Commonwealth did not seek to execute the
defendant's sentences until sixteen years later. Id. at 21. In
the interim, the defendant lived in the community, where he
maintained steady employment, raised three children, and
believed that his "case was over." Id. at 18, 21. The Supreme
Judicial Court held that the enforcement of the defendant's
sentences after such an "unexplained delay" violated due process
and principles of fundamental fairness. Id. at 17. In
contrast, here, there has been no showing of fundamental
unfairness or substantial prejudice in the board's failure to
promptly amend the petitioner's parole violation warrant. The
petitioner remained in lawful custody on his intervening
sentences throughout the delay at issue. Once the petitioner's
intervening sentences expired, the service of the parole
violation warrant became effective, as required by statute. See
G. L. c. 127, § 149. And, contrary to the petitioner's
assertion, as explained at pages forty-seven through forty-nine
of the board's brief, the duration of his sentences was not
increased because of any inaction by Commonwealth authorities.
14
double jeopardy and clearly established Federal law.21 It is
well settled that a petition for a writ of habeas corpus "cannot
be employed as a substitute for ordinary appellate procedure"
(citation omitted). Sheriff of Suffolk County, 438 Mass. at 99.
The petitioner therefore may not use a habeas petition to
collaterally attack this court's 2008 decision. See Kauffman,
petitioner, 413 Mass. 1010, 1011 (1992) (writ of habeas corpus
"may not be used to raise issues that should have been raised on
appeal"). Because a petition for a writ of habeas corpus is not
a proper vehicle to bring these claims,22 we decline to address
them here.23 See Doyle v. Commonwealth, 472 Mass. 1002, 1003
21 The petitioner also sought a writ of habeas corpus in the
United States District Court for the District of Massachusetts.
A Federal District Court judge denied the petition, in which the
petitioner raised, among other claims, that this court's 2008
decision violated double jeopardy.
22 The petitioner's assertion that this court's 2008 decision
violated art. 30 of the Massachusetts Declaration of Rights is
also not properly before us.
23 We briefly note that the petitioner's reliance on Commonwealth
v. Selavka, 469 Mass. 502, 509 (2014), in support of his double
jeopardy claim is misplaced. Selavka, supra at 510-514,
addressed whether the long-delayed correction of an illegal
sentence that imposed new burdens on a defendant violated the
prohibition against multiple punishments for the same crime.
Unlike in Selavka, supra at 514, here, the petitioner's
sentences were legal, and no new burdens or punishments were
imposed. The finality in the petitioner's overall sentencing
scheme did not change. All that changed was the sequence in
which he served his sentences. See Goetzendanner I, 71 Mass.
App. Ct. at 541. The petitioner received credit for each day
that he originally (improperly) served toward his reformatory
sentences, which were eventually applied to his intervening
sentences following the Superior Court's issuance of the
modified judgment in 2008. Finally, as noted supra, the
15
(2015), and cases cited. Since the petition for a writ of
habeas corpus was properly denied, the judge did not err in
denying relief from that order.
Order denying petition for
writ of habeas corpus
affirmed.
Order denying rule 60 (b)
motion affirmed.
By the Court (Vuono,
Sullivan & Singh, JJ.24),
Clerk
Entered: June 8, 2023.
petitioner was put on notice by this court's 2008 decision that
he would resume service of his reformatory sentences once his
intervening sentences expired. Any alleged expectation of
finality in his original (improperly executed) sentences would
not have been reasonable.
24 The panelists are listed in order of seniority.
16