The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER DENYING MOTION TO DISMISS OSC PETITION
Defendant Larry Daniel moves to dismiss the Order to Show Cause Petition on the ground that the delayed revocation hearing at issue violated Rule 32.1(b)(2) and 18 U.S.C. §3583(i). The Government opposes the motion. Having carefully considered the moving papers, appropriate authorities, the court record, the arguments of counsel and, for the reasons set forth below, the motion to dismiss the OSC Petition is denied.
On June 5, 1989, Defendant pleaded guilty to count one of the superceding indictment in the above referenced action, charging him with conspiracy to manufacture and distribute cocaine base in the above referenced action. On the same date, Defendant pleaded guilty to count two in the superceding indictment in Case No. 88cr0936 H, also charging him with conspiracy to manufacture and distribute cocaine base. On August 14, 1989 Defendant was sentenced in both cases to concurrent terms of 151 months in custody and five years supervised release.
On August 20, 2004 the United States Probation Office ("USPO") issued the first OSC Petitions in both federal cases, alleging that Defendant violated five terms of supervised release. A criminal complaint, filed in San Diego Superior Court on or about July 24, 2004, charged Defendant with attempted murder, assault with a deadly weapon, shooting into an inhabited vehicle, and felon in possession of a firearm. On November 3, 2004 Defendant was arrested on the San Diego warrants in Nevada and transferred to this district. In both cases, Defendant was arraigned before Judge Huff in 88cr0936 on January 4, 2005 and on January 18, 2005 in 89cr0014. On January 18, 2005, the date of a scheduled contested OSC revocation hearing before Judge Huff in 88cr0936 H, the Government requested that both OSC Petitions be dismissed without prejudice and Defendant requested a dismissal with prejudice.
At the time of the hearing before Judge Huff, the Government represented that the primary reason for the dismissal was to permit the state murder charges to proceed prior to a hearing on the OSC Petitions. (Def't Exh. B, R.T. at p.1-2). The Government explained that the federal warrants were executed before the California State warrants and that a remand of Defendant to state custody would allow the state complaint to be prosecuted. The Government also acknowledged that the OSC Petition did not comply with the warrant requirements identified in the November 22, 2004 decision in United States v. Vargas-Amaya, 389 F.3d 901, 903 (9th Cir.2004).
Judge Huff granted the motion to dismiss the OSC Petitions without prejudice. The court permitted USPO to file amended OSC Petitions and, on January 18, 2005 Judge Huff executed a new no-bail bench warrant in case number 88cr0936. On January 19, 2005 the undersigned issued a no-bail bench warrant in 89cr0014.
On October 24, 2005 Defendant pleaded guilty in state court to one count of Penal Code §245(a)(2) (assault with a firearm), and was sentenced to five years in state prison. Upon his release, on April 23, 2009, Defendant was arrested on the no-bail federal bench warrants.
Defendant has been arraigned on both OSC Petitions. On May 15, 2009 Judge Huff conducted a revocation hearing in 88cr0936 H. Judge Huff denied Defendant's motion to dismiss the OSC Petition, revoked supervised release upon Defendant's admission to the violation, sentenced Defendant to time served, and terminated supervised release. (88cr0936 H, Docket No. 847).
Defendant contends that the court forfeited jurisdiction when it dismissed the first OSC Petitions because he was in federal custody and ready to proceed with a disputed revocation hearing on January 18, 2005, when the OSC Petitions were dismissed without prejudice. Rule 32.1 requires a revocation hearing within "a reasonable time in the district having jurisdiction." Fed.R.Crim.P. 32.1(b)(2). 18 U.S.C. §3583(i) provides:
(i) Delayed revocation. -- The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation. (Emphasis added).
The Government responds that once the original OSC Petitions were dismissed, the Defendant was no longer in federal custody and therefore the court should apply the general rule, as articulated in United States v. Garrett, 253 F.3d 443, 449 (9th Cir. 2001). In Garrett the Ninth Circuit held that the period of time referenced by §3583(i) encompasses delays attributable to a defendant's incarceration on state charges. In Garrett, like the typical case, the defendant is on federal supervised release when he commits a state crime. In Garrett, the district court issued a supervised release violation warrant one day before the expiration of the period for supervised release. The federal detainer was lodged against the defendant while he completed his state sentence. Upon completion of his state sentence, the warrant was executed and the defendant transferred to federal custody. The Ninth Circuit concluded that the purpose of §3583(i) "was to assure reasonable speed of federal adjudication after the defendant is in federal custody" and not to require the federal Government to writ in supervised release violators who are in state custody. 253 F.3d at447-50.
Here, the court concludes that the timing of the present revocation hearing is reasonably necessary for adjudication of the allegations of non-compliance contained in the amended OSC Petition and therefore denies Defendant's motion to dismiss the amended OSC Petition. Defendant does not dispute that the amended OSC Petition, filed on January 19, 2005 occurred prior to the expiration of the five year period of supervised release by one day and that Defendant was in state custody on the date of issuance of the amended OSC Petition. Under Garrett, the filing of the amended OSC Petition before the ...