The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Joshua Kirkwood has filed a petition to vacate, set aside or
correct his sentence for violating his supervised release under
28 U.S.C. § ("section") 2255. For the reasons set forth below,
the petition is denied and the case is dismissed.
On July 16, 1993, Kirkwood was convicted of assaulting a
federal officer and possession and use of a firearm. He was
sentenced to 102 months in prison, followed by three years of
supervised release. Kirkwood was released from prison on February
7, 2000. While on supervised release, he was arrested for
possession of a controlled substance on June 13, 2002.
Prosecutors did not move for a rule to show cause as to why
supervised release should not be revoked until February 3, 2003,
two weeks before Kirkwood's period of supervised release was set
to expire. Judge Rebecca Pallmeyer, acting as an emergency judge, granted the rule to show
case, ordered a bench warrant for Kirkwood, and appointed
temporary counsel for Kirkwood.
Some five months later, Kirkwood pleaded guilty to possession
of a controlled substance in Lake County. He was sentenced to
five and a half years in prison, with the unusual provision that
the state sentence run concurrent with any sentence later imposed
in the federal court for a parole violation. Kirkwood appeared
before Judge Pallymeyer on October 1, 2003 and admitted he
violated of supervised release. He requested a concurrent
sentence on the violation as "ordered" by the state judge but
received eighteen months to run consecutive to the five and a
half year state court sentence. Kirkwood did not appeal from the
order of revocation or the sentence imposed.
Kirkwood now argues that his constitutional rights were
violated because he was not allowed a preliminary hearing in
federal court prior to the revocation and sentencing hearing. In
his § 2255 motion, Kirkwood alleges the following: (1) his
supervised release violation was not promptly reported to the
courts; (2) he did not receive notice of a preliminary hearing;
(3) he was not given the opportunity to appear at a preliminary
hearing; (4) he was not given the opportunity to question any
adverse witnesses at a preliminary hearing; (5) he was not given
written notice of the violation or that the court had found
probable cause to revoke his supervised release or that a bench
warrant had been issued; (6) his revocation hearing was not held
within a reasonable time; (7) the government intentionally
prolonged his hearing until after his state proceedings to use
his state conviction as the primary evidence of guilt toward his
revocation, rather than allowing the revocation hearing to fall
on its own merits; (8) his counsel was ineffective for failing to
investigate or prepare a defense prior to the revocation hearing,
at which he informed Kirkwood that pleading guilty in the state
charge settled the matter; (9) without the delay, he could have
been serving his federal sentence when the state court sentence was handed down, meaning he would
have been allowed to serve his sentences concurrently, as the
state court recommended; and (10) a misrepresentation by his
counsel led him to plead guilty in state court to drug possession
with intent to deliver, instead of merely possession, which led
to a higher grade of violation.
Despite the shopping list of Kirkwood's claims stated above, he
essentially makes three arguments in his bid to vacate, set aside
or correct the revocation of his supervised release and the
eighteen month sentence consecutive to his state sentence. First,
he argues that he was improperly denied a preliminary hearing on
the supervised release violation. Second, he claims that his
revocation hearing was untimely and that prosecutors purposefully
delayed the hearing until after his state charge was resolved.
Third, he charges that the ineffective assistance of his counsel
led him to admit to the violation despite the procedural defects
he complains of in this motion.
First, Kirkwood alleges that his constitutional rights were
violated because he never received a preliminary hearing to
determine probable cause for his alleged violation of his
supervised release. Kirkwood relies on Federal Rule of Criminal
Procedure 32.1(b)(1), which reads, "If a person is in custody for
violating a condition of . . . supervised release, a magistrate
judge must promptly conduct a hearing to determine whether there
is probable cause to believe that a violation occurred." It is
true that the federal bench warrant was lodged as a detainer
against Kirkwood while he was jailed on the state drug charge.
However, we adopt the findings of the Eighth Circuit, which
rejected a similar claim based on the view that the safeguards of
Rule 32.1 are for those persons in custody solely because of a
violation of supervised release. United States v. Pardue,
363 F.3d 695 (8th Cir. 2004). Those like Kirkwood, in custody based on an underlying criminal
charge, enjoy the protections associated with that charge. A
probable cause hearing to detain him for violating his supervised
release was unnecessary because the state, which held him, had
found probable cause to hold him for the state charge. Kirkwood's
due process rights based on lack of a probable cause hearing are
Second, Kirkwood contends that he was denied a timely
revocation hearing. The right to a prompt revocation hearing is
somewhat analogous to the Sixth Amendment right to a speedy
trial. United States v. Rasmussen, 881 F.2d 395, 398 (7th Cir.
1989). In order to determine whether this right has been
violated, courts look at: "1) length of delay; 2) reason for the
delay; 3) the defendant's assertion of his right; and 4)
prejudice to the defendant." Id.
Kirkwood argues that more than a year passed between his June
13, 2002 arrest and his October 1, 2003 appearance before a
federal court on his parole violation. We agree with the
government, however, that the clock did not begin to run until
Kirkwood entered federal custody. See United States v.
Chaklader, 987 F.2d 75, 77 (1st Cir. 1993) ("[T]here is `no
constitutional duty to provide petitioner an adversary parole
hearing until he is taken into custody as a parole violator.'")
(quoting Moody v. Daggett, 429 U.S. 78, 87 (1976)). As his
hearing was held on or around the same day he was turned over to
federal custody, we find no unreasonable delay.
Kirkwood acknowledges that the government was permitted to
delay his revocation hearing until after the disposition of the
state charges. See Rasmussen, 881 F.2d at 399. Indeed, that is
a good reason to delay a revocation hearing, as a finding of
guilty in the state court can "conclusively establish the
probation violation." Id. The government claims that Kirkwood failed to assert his right
to a revocation hearing at his only appearance in federal court
on this matter. Instead, he admitted the violation based on his
state court conviction, eliminating the need for a hearing.
Kirkwood offers a cryptic response to this claim, stating that he
is unsure whether or not he asserted this right and requesting
and evidentiary hearing to determine whether he did or not. While
it does appear that Kirkwood failed to assert his right to a
hearing, that fact is of little consequence.
Of more significance, Kirkwood was not prejudiced by the delay.
His guilty plea in state court admitted the parole violation,
which was based on the same acts as the state charge. See
Chaklader, 987 F.2d at 77 (stating "it would be difficult, if
not impossible, . . . to establish . . . prejudice" where a
prisoner pleaded guilty to the underlying state charge).
However, Kirkwood argues that this delay caused him prejudice
because had the federal court sentence been handed down before
the state court proceedings, the state court judge could have
ordered the sentences to run concurrently with the federal one.
Maybe so, maybe not. It is true the state court recommended the
sentences run concurrently, but that court did not have the power
to bind the federal court when it made its subsequent sentencing
decision. See United States v. Sackinger, 704 F.2d 29, 32 (2d
Cir. 1983); Cozine v. Crabtree, 15 F. Supp. 2d 997, 1011 (D.
Or. 1998). Kirkwood did not have the right to concurrent
sentences and therefore no right was denied him. See United
States v. Koller, 956 F.3d 1408, 1416 (7th Cir. 1992). Moreover,
the judge who handed down his federal sentence could have imposed
a concurrent sentence, but chose not to. Perhaps the order in
which Kirkwood was sentenced (state then federal) deprived him of
a possibility of concurrent sentences. One thing is clear: the
order of sentencing did not violate any of his rights. Third, Kirkwood claims he received ineffective assistance of
counsel. As Kirkwood concedes, his claim of ineffective
assistance of counsel ...