Unpublished Disposition, 878 F.2d 1438 (9th Cir. 1987)

No. 88-4301.

United States Court of Appeals, Ninth Circuit.

Before FARRIS, NOONAN and LEAVY Circuit Judges.

MEMORANDUM^** 

FACTS

In 1987 appellant John Klapproth was a federal parolee. That year he was arrested and convicted for new state crimes in Seattle, Washington. Shortly after his arrest in January 1987, appellee United States Parole Commission issued a warrant containing three charges based on the new crimes.

The U.S. Probation Office in Denver, Colorado, had supervisory authority over Klapproth. When that office received a copy of Klapproth's judgment of conviction on the new state crimes in July 1987, it did not forward a copy of the judgment promptly to the Parole Commission. This omission had the effect of rendering the parole violation warrant a detainer on Klapproth after his conviction. Since the Parole Commission was unaware of the detainer, it took no action to review the charges.

Klapproth became aware of the Commission's warrant in January 1987, but did not receive a copy of the warrant until November 1987.

Klapproth filed the present petition for habeas corpus relief seeking removal of the detainer. He claims (1) that he was denied a probable cause hearing on the revocation charge; (2) that the Commission's delay in sending him a copy of the warrant prejudiced his defense in the state court criminal proceedings; and (3) since he did not receive a copy of the warrant until after his maximum term expired in August 1987, the Commission is precluded from revoking his parole status.

ANALYSIS

18 U.S.C. § 4214(b) (1) provides that "Conviction for a Federal, State, or local crime committed subsequent to release on parole shall constitute probable cause," obviating the need for a probable cause hearing. The new conviction entitles the Commission to place a detainer against the parolee, and the parolee is entitled to notice of the detainer and a dispositional review within 180 days. 18 U.S.C. § 4214(b) (1); 28 C.F.R. Sec. 2.47(a) (2). Nothing in the statutory scheme, or the regulations promulgated thereunder, give the parolee a right to receive a copy of the revocation warrant prior to his state court trial.

Klapproth also contends that the Commission should be barred from revoking his parole status because he did not receive notice of the detainer until after his maximum term expired on August 26, 1987. However, it is well established that the Commission retains jurisdiction so long as a warrant is "issued" during the maximum term, even though it may be served or executed thereafter. Barr v. Parker, 453 F.2d 865, 866-67 (9th Cir. 1971); 18 U.S.C. § 4214(b).

The district court agreed with Klapproth that the Commission had not undertaken a disposition review of the detainer in a timely fashion, and ordered the Commission to conduct such a review with 60 days. An order compelling the Commission to undertake the review, rather than a grant of habeas corpus, is the appropriate remedy for the Commission's delay in the absence of prejudice or bad faith by the Commission. See Heath v. United States Parole Commission; 788 F.2d 85, 88 (2d Cir. 1986). The Commission in fact commenced such review and was found by the district court to be in substantial compliance with its order.

The denial of the petition for a writ of habeas corpus is

AFFIRMED.