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Barnard v. Henman

July 10, 1996

RICHARD JAMES BARNARD,

PETITIONER-APPELLANT,

v.

GARY L. HENMAN,

RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of Illinois. No. 95-CV-195-JPG--J. Phil Gilbert, Chief Judge.

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

COFFEY, Circuit Judge.

ARGUED FEBRUARY 14, 1996

DECIDED JULY 10, 1996

Richard James Barnard filed a petition for a writ of habeas corpus, 28 U.S.C. sec. 2241, claiming that the United States Parole Commission ("Commission") failed to hold a timely parole revocation hearing and failed to properly credit his prior custody. The district court denied the petition. We affirm.

I. BACKGROUND

On February 6, 1986, Barnard pled guilty to a narcotics offense in the United States District Court for the Western District of Oklahoma, and was sentenced to a seven-year term of imprisonment, a three-year special parole term, and ordered to pay a $50 special assessment. Barnard was released on parole on September 2, 1988, after having served approximately 36 months of the sentence.

Barnard was arrested in Dallas, Texas on state narcotics charges on April 3, 1992, while on parole. *fn1 The Oklahoma Federal Probation Office notified the Commission, and recommended that a federal parole violator warrant be issued as a detainer. On April 10, 1992, the warrant was issued and placed as a detainer against Barnard's state custody. The Commission sent the warrant to the United States Marshals Service along with a form memorandum of instructions, with the following instruction (number 3) checked on the form: "The parolee is awaiting trial or sentencing on new charges: place a detainer and assume custody when released."

On December 4, 1992, Barnard was convicted in a Texas state court of conspiracy to possess cocaine before a jury, and was sentenced to a fifteen-year term of imprisonment. On December 23, 1992, *fn2 the Marshals Service executed a federal parole violator warrant upon Barnard and took him into federal custody. The Commission was notified of the Marshals' purported execution of the warrant, but took no action. On March 2, 1993, the Marshals Service returned Barnard to state custody. During the time period that Barnard was in federal custody, 71 days, he did not receive a parole revocation hearing.

On January 28, 1993, the Commission issued a supplement to the warrant of April 10, 1992, and noted the December 4, 1992 conviction and sentence. A second federal detainer was placed against Barnard's state custody on June 4, 1993; this second detainer was also based on the warrant originally issued on April 10, 1992, as duly supplemented. On November 1, 1994, Barnard was paroled from state custody and turned over to federal authorities pursuant to the detainer, and he arrived at the Federal Prison Camp at Marion, Illinois on January 9, 1995.

Barnard's federal parole revocation hearing was held on January 24, 1995, and because counsel was not appointed for Barnard until the previous day, his attorney was unable to attend the hearing. *fn3 Before the hearing, the panel asked Barnard if he would like a continuance of the proceeding until counsel could be present, but Barnard refused the offer of an adjournment, stating that he wished to proceed unrepresented. The hearing proceeded and thereafter, the panel recommended that Barnard's parole be revoked, finding that he had three separate parole violations: (1) another felony while on parole (conspiracy to distribute cocaine--Texas conviction); (2) leaving the confines of his designated parole area without permission; and (3) unauthorized association with a known convicted criminal. The Commission sentenced Barnard to the guideline maximum of 48 months, and ordered that he not receive credit for the time that he previously served on parole ("street time"). The Commission did grant Barnard credit for all the time he spent in state custody, beginning with his arrest on April 3, 1992, and including the 71 days he had spent in federal custody. Thus, Barnard received full credit for all time served in custody prior to his parole revocation sentence. *fn4

With the aid of counsel, Barnard filed a petition for a writ of habeas corpus in the district court. The facts were stipulated by the parties; the only dispute was to their legal effect. Barnard claimed that the original execution of the parole violator warrant on December 23, 1992, triggered the Commission's duty to hold a timely revocation hearing, and that his parole term continued to run in the absence of such a hearing. As a consequence, Barnard maintained that his federal parole term expired on September 5, 1992 (or at the latest May 23, 1993), *fn5 and thus he was entitled to release. Barnard also argued that he was improperly denied counsel at the parole revocation hearing.

The district court denied the petition in a Memorandum Order ("Order"), on September 22, 1995, holding that the execution of the warrant was invalid because the Marshals Service did not follow the Commission's instructions. (Order at page 7). The Commission directed the Marshals Service on April 10, 1992, to place a detainer on Barnard and take custody of Barnard upon his release from his state prison term. Instead, the Marshals failed to comply with the Commission's directions regarding the effective date of the warrant and erroneously took custody of him on December 23, 1992, before the completion of his state prison term. The district judge concluded that because the execution of the warrant was invalid, the Commission's procedural responsibilities were not triggered. (Id. at page 7). The trial judge also held that the Commission's calculation of Barnard's sentence was proper. The trial court reasoned that the greatest amount of relief Barnard could have received was full credit for his state custody, and that is precisely what he received. (Id. at page 8). Lastly, the district court rejected Barnard's claim that he was denied counsel, finding that ...


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