Unpublished Disposition, 883 F.2d 1024 (9th Cir. 1989)

MEMORANDUM^** 

Clarence Earl Jones, presently confined at the Federal Correctional Institute in Phoenix, Arizona, appeals pro se the district court's grant of summary judgment in his section 1983 action against the Arizona Board of Pardons and Paroles (Arizona Parole Board). Jones contends that the Arizona Parole Board violated his right to due process by revoking his parole and confining him in an Arizona state prison for possession of heroin and fraud after paroling him to federal detainer. We affirm.

Jones contends that the Arizona Parole Board violated his fifth amendment rights to due process and equal protection by revoking his parole after paroling him to a federal detainer.

A convicted person is not required to serve the entire sentence imposed if, from the totality of the circumstances, to do so would violate due process. United States v. Martinez, 837 F.2d 861, 864 (9th Cir. 1988). In cases involving delay in execution of sentence, federal courts examine alleged due process violations under a theory of waiver, using a totality of the circumstances test. Id. The government waives its right to incarcerate only when its agents' actions are so affirmatively improper or grossly negligent that it would be unequivocally inconsistent with fundamental principles of liberty and justice to require a legal sentence to be served in its aftermath. Id.

When Jones was paroled to a federal detainer, the proclamation of parole stated that Jones was "parole [d] to federal detainer only" and that he was "release [d] ... in the legal custody and under the control of the Department of Corrections until absolute discharge.... Such parole is authorized conditioned upon compliance with those regulations specified by the Arizona Department of Corrections for conduct while on parole...." The language of the proclamation of parole specifically states that Jones was under the custody of the Arizona Department of Corrections "until absolute discharge." This language makes it clear that the Board of Parole did not intend to waive jurisdiction. State v. Knapp, 123 Ariz. 402, 403-04, 599 P.2d 855, 857 (1979) (Arizona did not waive jurisdiction by releasing prisoner into another state's custody pursuant to waiver of extradition). Moreover, Jones' argument that parole to federal detainer was the equivalent to a pardon is completely untenable under Arizona law, which requires action of the governor. Id.; A.R.S. Sec. 31-402A ("No ... pardon may be granted by the governor unless it has first been recommended by the board").

Under the totality of the circumstances, the Arizona Parole Board's revocation of Jones' parole and subsequent nine months' incarceration of Jones was not "unequivocally inconsistent with fundamental principles of liberty and justice." Martinez, 837 F.2d at 864.

Jones also contends that revocation of his parole violated due process because he had earned sufficient release credits over his various periods of parole and incarceration to constitute service of the entire original sentence. See A.R.S. Sec. 41-1604.07. This argument, which Jones did not make before the district court, is meritless. Under Arizona law, when a prisoner's parole is revoked, any good time credits arising from the parole period are lost. Baker v. Arizona Board of Pardons & Paroles, 150 Ariz. 414, 415, 724 P.2d 33, 35 (1986); see also Raines v. U.S. Parole Comm'n, 829 F.2d 840 (9th Cir. 1987) (good time credits do not reduce period of sentence, just period of incarceration).

AFFIRMED.