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Lyons v. Herrera

June 16, 2010

ARVEY H. LYONS, JR., PETITIONER,
v.
AL HERRERA, WARDEN, AND UNITED STATES PAROLE COMMISSION RESPONDENTS.



The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

The Court has reviewed the entire record in this action, the Report and Recommendation of the Magistrate Judge, and petitioner's objections.

In addition to the thorough reasoning offered by the Magistrate Judge, the Court wishes to summarize and clarify the legal effect of the Parole Commission's actions when lodging and executing the parole violator warrant.

The Court concurs with Magistrate Judge's summary of the relevant events involving the parole violator warrant:

On September 9, 1998, upon notice and proof of petitioner's conviction, the [Parole] Commission issued a parole violator warrant for petitioner. The warrant was addressed to the United States Marshal. The transmittal letter accompanying the warrant stated: "Please assume custody as soon as possible or when located. NOTE: If the parolee is already in the custody of federal or state authorities, do no execute this warrant. Place a detainer and notify the Commission for further instructions. Do not execute the warrant if the parolee is on bond."

In spite of these instructions, on March 10, 1999, while petitioner was on bond and awaiting sentencing in this Court, the Marshal arrested and detained petitioner on the parole violator warrant. Petitioner subsequently requested presentence detention at Metropolitan Detention Center and an order exonerating bond. Those requests were granted. Petitioner remained in custody pending his sentencing. Although steps toward scheduling a parole revocation hearing appear to have been taken after his arrest, petitioner requested that his parole revocation hearing be continued pending his sentencing. The [Parole] Commission concurred. Revocation proceedings did not re-commence until after petitioner was sentenced in this Court.

After his arrest on the parole violator warrant, all indications from the Commission -- up through its March 2004 notice -- were that the parole violator warrant was properly executed on March 10, 1999. Petitioner was told as much as recently as July 1, 2003.

After petitioner's parole revocation hearing however, on March 2, 2004, the Commission ordered the following action:

Release, nunc pro tunc, from the custody of the Commission's warrant dated September 9, 1998 and conditionally reinstate to supervision, file the warrant as a detainer during your service of the 40-month SRA term imposed on December 10, 2001, and execute the Commission's warrant upon your release from the 40-month SRA term, which the Commission believes to be approximately December 24, 2001. This will result in the running of your parole violator term consecutively to your 40-month SRA term.

The Commission's order justified that action as follows:

The Commission's warrant was executed by the U.S. Marshal on March 10, 1999, contrary to the Commission's explicit instructions. You had pleaded guilty and were in the community on bond when the warrant was executed, and the Commission's instructions accompanying the warrant were: "Do not execute the warrant if the parolee is released on bond." It was the Commission's intention that its warrant not be executed until after the service of your new sentence.

The Commission's order further stated that "[t]he above decision is not appealable."

(Report and Recommendation at 47-48, citations omitted.)

It is well-established that the Parole Commission has broad discretion to determine whether to issue a parole violator warrant and to order either that the warrant "be executed or be filed as a detainer." Barnard v. Henman, 89 F.3d 373, 377 (7th Cir. 1996) (quoting McConnell v. Martin, 896 F.2d 441, 446 (10th Cir. 1990)); see also Thompson v. Crabtree, 82 F.3d 312, 316 (9th Cir. 1996) (noting the Parole Commission's ...


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