Cummings and Kerner, Circuit Judges, and Hoffman, District Judge.*fn1
Petitioner's application for habeas corpus raises various questions concerning the validity, timeliness and efficacy of a mandatory release violator's warrant issued by the United States Board of Parole. In an unreported memorandum opinion, the district court held that petitioner was not entitled to relief and therefore granted the Government's motion for summary judgment. Petitioner's pro se appellate briefs evidence a thoughtful attempt to present the relevant judicial authorities in a complex area of statutory regulation. Unfortunately, the opposing brief has chosen not to meet the significant questions raised by this appeal.
On January 16, 1959, petitioner received consecutive 5- and 3-year sentences after pleading guilty to two counts of an indictment charging him with having conspired to transport counterfeit securities, in violation of 18 U.S.C. §§ 371 and 2314. In April 1964, after five years and three months' imprisonment, he was given a so-called "mandatory release" pursuant to 18 U.S.C. § 4163, thus making him the equivalent of a parolee under 18 U.S.C. § 4164.
On November 30, 1965, petitioner was arrested and arraigned before the United States Commissioner in Cleveland for violating 18 U.S.C. § 2314 by transporting counterfeit securities. Fourteen days after his arrest, a mandatory release violator's warrant was issued by the United States Board of Parole, commanding that the warrant be executed by taking petitioner into custody "until he has been afforded a preliminary interview with a person designated by the Board of Parole and until authorized to transport him as ordered." The reason given for the issuance of the warrant was that "reliable information has been presented to the undersigned Member of this Board that said prisoner named in this warrant has violated the conditions of release." According to its face, the warrant was received by the United States Marshal in Cleveland on December 15, 1965.
Early in January 1966, petitioner was released on bond for the November 1965 offense. He remained under the supervision of the local Parole Office until March 31, 1966, when a two-count indictment was returned and the bond raised and he was placed in the custody of the United States Marshal and detained in the Cuyahoga County jail in Cleveland. On October 31, 1966, petitioner pled guilty to violating 18 U.S.C. § 2314 and the general conspiracy provision (18 U.S.C. § 371), was sentenced to three-year concurrent sentences on these two counts and commenced serving those sentences. One day later, the district court found, the mandatory release violator's warrant was returned to the United States Board of Parole unexecuted.
The court also found that on February 6, 1967, the warrant was lodged as a detainer at the Federal Penitentiary at Terre Haute, Indiana, where petitioner was serving the 1966 sentences. According to his briefs in this Court, this was the first time that petitioner was informed that such a warrant had issued.*fn2 The warrant was executed on April 21, 1968, when petitioner's 1966 sentences expired. Petitioner thereupon commenced serving a new term of 1011 days under the 1959 sentences.*fn3 On June 4, 1968, after the customary hearing, his 1964 parole was revoked.
The district court held that where, as here, a mandatory release violator's warrant was issued because of a "parolee's" arrest for a crime, it need not contain a statement of the reasons for seeking parole violation. The court also held that the warrant was timely issued and that there was no undue delay in holding the parole revocation hearing. Since no factual matters were controverted, summary judgment was entered for the Government.
Petitioner asserts that the failure to execute the concededly timely issued warrant prior to the expiration of the 1966 sentences on April 21, 1968, deprived the Parole Board of jurisdiction over him by reason of the intervening expiration of the maximum term of his 1959 sentences. He alternatively asserts that the delay in execution of the warrant deprived him of due process by requiring him to serve the remainder of his 1959 sentences consecutively to the 1966 sentences. However, 18 U.S.C. § 4205 requires only that issuance take place within the maximum term of the sentence, and therefore the Courts of Appeals have uniformly held that as long as a mandatory release violator's warrant is issued prior to the expiration of the maximum sentence from which the violator was released under 18 U.S.C. § 4163, the execution of the warrant may take place after the expiration of the maximum sentence.*fn4 Here the warrant was issued on December 14, 1965, which was long prior to the July 19, 1966 date*fn5 on which petitioner contends his 1959 sentences expired.
Even if we were to agree that the period during which petitioner was free on bond pending disposition of the 1965 charges should be counted in determining whether the maximum term of his 1959 sentences had expired, it is clear that upon his return to the Cuyahoga County jail on March 31, 1966, he was incarcerated by reason of the intervening 1965 offense and not by reason of the violation of the terms of his release from the earlier sentences. The effect of such incarceration was to toll the running of the maximum term of the 1959 sentences. Zerbst v. Kidwell, 304 U.S. 359, 58 S. Ct. 873, 82 L. Ed. 1399. This rule is reinforced by 18 U.S.C. § 4205, which makes clear that the unexpired term of imprisonment of a mandatory release violator runs from the date he is returned to the custody of the Attorney General "under said warrant." Here the petitioner was not deprived of his liberty by reason of the violator's warrant until the warrant was executed upon the expiration of the intervening prison term.
To avoid the thrust of the authorities collected in note 4, petitioner asserts that the delay in execution of the warrant constituted a waiver of jurisdiction or a confession that no violation had in fact occurred. He argues from this that summary judgment was improper and that he is entitled to a hearing on this question of fact. But the settled administrative practice of lodging a warrant as a detainer following the conviction and commitment to prison for a crime committed while on release rather than interfering with the orderly procedure of trial by executing the violator's warrant, negatives any inference of intentional waiver or confession of error. It is fanciful to suppose that by allowing the suspected parole violation to ripen into a criminal conviction with all the safeguards such proceedings entail, the Parole Board can be held to have waived its authority to impose a penalty for violation of the terms of release. As Mr. Justice Black has noted:
"Unless a parole violator can be required to serve some time sometime in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified." Zerbst v. Kidwell, 304 U.S. 359, 363, 58 S. Ct. 873, 874, 82 L. Ed. 1399.
The delay caused by the Board's preference for basing a parole revocation on a criminal conviction rather than on its own finding that a crime has been committed does not connote an admission that no ground existed for believing a violation had occurred prior to the issuance of the warrant.
Petitioner complains that the lack of notice of the existence of the warrant until February 1967 disabled him from bringing to the sentencing judge's attention the likelihood that he would be returned to prison to serve the balance of his prior sentence, thus foreclosing the judge from providing that the new sentence should run concurrently with the balance of the prior sentence. However, the Parole Board has sole authority to determine whether the balance of the prior sentence should be served as a penalty for the violation on release. Zerbst v. Kidwell, supra. It would thus be beyond the power of the district judge to revive the prior sentence and require that it be served concurrently with the new sentence. Tippitt v. Wood, 78 U.S.App.D.C. 332, 140 F.2d 689, 692 (1944); United States ex rel. Quinn v. Hunter, 162 F.2d 644, 648 ...