Larry Dean Turner v. United States Parole Commission Jack Cowley, Warden Attorney General of the United States

Citations: 934 F.2d 254; 1991 U.S. App. LEXIS 10463; 1991 WL 84342Docket: 89-6341

Court: Court of Appeals for the Tenth Circuit; May 24, 1991; Federal Appellate Court

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The case centers on whether the United States Parole Commission had the authority to issue a second parole violator warrant against Larry Dean Turner after previously executing a warrant related to the same state felony conviction. The district court concluded that the Commission acted properly in issuing the second warrant and denied Turner's habeas corpus petition under 28 U.S.C. § 2241. 

Turner had been paroled on December 27, 1983, from a 15-year federal sentence for conspiracy and perjury-related offenses. He was arrested on June 15, 1987, by Oklahoma authorities for concealing stolen property, leading the Parole Commission to issue a warrant on July 2, 1987. This warrant charged him with both the concealment of stolen property and failing to report his arrest to his federal probation officer. The U.S. Marshals executed the warrant on July 8, 1987, and he was taken into federal custody.

Following his arrest, a preliminary interview on July 10 revealed probable cause for a parole violation. Turner was subsequently notified on July 28 that the Commission found sufficient grounds for a revocation hearing, which was scheduled despite the ongoing state proceedings. Turner was then transferred to F.C.I. Texarkana for this hearing and potential confinement. The court affirmed the district court's ruling, agreeing with its analysis that the Commission had the authority to proceed with the second warrant.

Turner attended a revocation hearing with counsel, where he admitted to not reporting his arrest but denied concealing stolen property. The panel determined that he violated parole by failing to report the arrest but deemed it insufficient for revocation. They found insufficient evidence to support the felony charge of concealing stolen property due to inconsistencies in testimony and recommended that no decision be made on that charge, which remained unresolved in state court. On October 5, 1987, the regional commissioner issued a Notice of Action reinstating Turner to parole, and he was released from federal custody on October 6, 1987, only to be taken into state custody. In November 1987, Turner was convicted of knowingly concealing stolen property and sentenced to 20 years in state prison due to prior convictions. The Parole Commission was notified of this conviction and subsequently issued a second parole violator warrant, which was to be held as a detainer while Turner served his state sentence. This decision was upheld after a dispositional record review in February 1989, and Turner’s appeal was unsuccessful. He then filed a habeas action in district court, leading to the appointment of a federal public defender for his appeal. The Parole Commission's decisions can only be reversed if arbitrary or an abuse of discretion, while questions of statutory authority are reviewed de novo. The primary issue under consideration is whether the second warrant falls within the Parole Commission's statutory authority.

In 1976, the Parole Commission was established under the Parole Commission and Reorganization Act, which outlines the factors and procedures for federal prisoner parole, granting the Commission broad discretionary authority to grant or revoke parole. The Act does not specify whether a second warrant can be issued for the same violation after a revocation hearing has occurred. Turner argues that prior case law, specifically Still v. United States Marshal, limits the Commission's authority to only those actions explicitly stated in the statute. In Still, the Commission attempted to withdraw a parole violator warrant post-execution, which was deemed beyond its statutory authority as it triggered procedural requirements. Although Still affirms that a parolee is entitled to hearing procedures upon being taken into custody, it does not resolve whether the Commission can initiate full proceedings multiple times for the same state charge. Turner suggests that the dicta in Still supports a restrictive interpretation of the Act, emphasizing the need to avoid constitutional issues. However, the court counters that Still does not establish that the Commission can only act in ways explicitly defined in the statute. It cites Judge Logan's dissent, which noted the absence of a provision for delaying warrant execution, and references Moody v. Daggett, which upheld the Commission's ability to issue a warrant without immediate execution or a hearing, despite the lack of explicit statutory provision.

Maslauskas v. United States Bd. of Parole, 639 F.2d 935 (3d Cir.1980) is not applicable to Turner's case. In Maslauskas, the Board ordered the parolee's reinstatement but issued a second warrant on the same day after the parolee's guilty plea to state charges. The court found the Commission lacked authority for the second warrant but did not address whether a second warrant would be permissible had the first order been a conditional reinstatement. In contrast, Turner's reinstatement was conditional, with the Commission refraining from deciding on the alleged violation due to indeterminate facts regarding Turner's concealment of stolen property. The Commission reinstated Turner pending further evidence from a state court conviction.

Unlike Maslauskas, where no new evidence justified a second warrant, Turner's second warrant was based on new evidence—his state court conviction—which established probable cause under 18 U.S.C. Sec. 4214(b)(1). The conviction represented a violation of a mandatory parole condition. The statute does not indicate that issuing a warrant is merely an alternative procedure when a parolee is charged with a crime, nor does it prevent a new warrant from being issued with new persuasive evidence of a violation.

Turner's claim that 28 C.F.R. Sec. 2.44(b) provides the exclusive procedure for parole violation warrants is refuted. This regulation permits delays in issuing and executing warrants but does not limit the Commission’s discretion to take other actions. The issuance of a second warrant must align with Congress's intent for the Commission to exercise broad discretion and utilize various tools for parole decisions based on all relevant information. A parolee's conviction is a critical factor in determining parole revocation, as noted in relevant case law. Turner’s interpretation would inhibit the assessment of such significant evidence, impeding a comprehensive evaluation of his ability to reintegrate into society without reoffending.

Congress mandated that the Commission deny parole if a parolee's release could jeopardize public welfare, as outlined in 18 U.S.C. Sec. 4206(a)(2). Granting Turner's request would undermine the Commission's ability to fulfill its duty to protect public safety by limiting its discretion in revocation proceedings and hindering its review of relevant evidence. Turner's interpretation would necessitate delaying action on a warrant until after a state trial, preventing timely review of a parolee's conduct post-allegation of violation, as required by 18 U.S.C. Sec. 4213(b). This restrictive approach could lead to premature revocation of parole, potentially undermining the parolee's rights.

Turner argued that the Commission should disregard the state court conviction due to evidence not presented at his trial, asserting that the revocation hearing was fairer. However, the Commission is not required to question the validity of the conviction and may consider it as conclusive evidence of parole violation, while also allowing Turner to present additional evidence for a comprehensive review.

Turner previously raised, but does not pursue on appeal, arguments regarding double jeopardy and related doctrines preventing multiple revocation hearings. Established case law indicates that double jeopardy does not apply to similar parole revocation hearings, and since the Commission did not conclude the first hearing, Turner's argument is unfounded. Lastly, Turner's motion to supplement the appeal record was denied as it was deemed unnecessary.

The Parole Commission has not exceeded its authority by issuing a second parole violator warrant related to the same underlying violation, as the initial revocation hearing did not reach a conclusive finding and the parolee was conditionally reinstated. The second warrant was supported by new evidence from a state court conviction. The district court's judgment is affirmed. Under 18 U.S.C. Sec. 4214(a)(1), a parole violator is entitled to a preliminary hearing to establish probable cause for the violation, followed by a revocation hearing within sixty days if probable cause is found. Although 18 U.S.C. Secs. 4201 et seq. were repealed, they continue to apply to individuals convicted prior to the repeal. The absence of explicit conditions in the Notice of Action does not negate the conditional nature of the reinstatement, as the overall record supports this. Regulations allow the Commission to withhold a warrant based on the severity of violations. Turner has sought redress through federal habeas corpus, and no constitutional violations were found in his state trial. His argument against the Commission's reliance on his conviction for guilt determination is premature, as the Commission has yet to hold a revocation hearing. Additionally, Turner's concern about serving his parole term in installments is not ripe for review, as his parole may not be revoked.