(dissenting):
I am compelled to respectfully dissent in this ease because I believe the conclusion reached by the majority is in conflict with prior decisions of this court concerning violators’ warrants.
The majority has correctly set forth the law applicable to the instant case; I dissent only as to the application of that law to the facts. It is firmly established that the issuance of a violator warrant triggers a process which, as a matter of fundamental fairness, must be pursued with reasonable diligence and dispatch. What constitutes a reasonable time is essentially a question of fact which will vary from case to case. Shelton v. United States Bd. of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567 (1967). This Circuit has ruled that state custody of a federal parolee for a state offense committed during the term of the federal parole interrupts and suspends the period of the federal parole. Small v. United States Bd. of Parole, 421 F.2d 1388 (10th Cir. 1970), cert. den. 397 U.S. 1079, 90 S.Ct. 1532, 25 L.Ed.2d 815. In such circumstances, the federal government is not required to immediately execute the violator’s warrant for violation of the federal parole, but may withhold execution until completion of the sentence for the state offense committed while on parol. Nash v. Moseley, 433 F.2d 923 (10th Cir. 1970); Small v. United States Bd. of Parole, supra; Jefferson v. Willingham, 366 F.2d 353 (10th Cir. 1966), cert. den. 385 U.S. 1018, 87 S.Ct. 744, 17 L.Ed.2d 554. The warrant is held in abeyance until state custody is terminated. Jefferson v. Willingham, supra,. The warrant may lawfully be enforced after release from state custody provided the federal government does so with due diligence. Fitts v. United States, 439 F.2d 769 (10th Cir. 1971). Petitioner was never released from state custody in the instant case. He was paroled from the Indiana State Reformatory in November, 1965. He absconded from state supervision in February, 1966, and his whereabouts remained unknown until his arrest by federal authorities in Denver in 1969. Simon’s state parole was thus never terminated. This being the case, he was still in the constructive custody of the state of Indiana at the time of his arrest in Denver.
Petitioner has shown no prejudice in the delay of revocation of his federal parole. Delay in and of itself is not sufficient to show prejudice, except in extreme cases. Actual prejudice vel non is the focal point of the inquiry here. A parole violator who has succeeded in evading the authorities is in no position to complain of a delay. Shelton v. United States Bd. of Parole, supra. Applied to the instant case, these principles support a finding of lack of prejudice in the delay in executing the warrant. How can it be asserted that the delay was prejudicial when in fact Simon had not yet satisfactorily completed his state parole, and was concealing himself from state and federal authorities at the time of his arrest for federal parole violation? I would affirm.