United States v. Sussman , 444 F. App'x 302 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
November 1, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 11-1255
DAVID ALLEN SUSSMAN, (D.C. No. 1:09-CR-00392-CMA-1)
(D. Colo.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is,
therefore, submitted without oral argument.
David Allen Sussman appeals from the district court’s revocation of his
supervised release. Sussman contends that he was deprived of liberty without due
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
process of law when federal authorities lodged a detainer with the county jail
where he was serving a state sentence but did not execute the arrest warrant until
he was released from state custody. Defense counsel requested permission to
withdraw from the case and filed an Anders brief because he believes there are no
non-frivolous grounds for appeal. Sussman responded pro se, seeking
appointment of new counsel and identifying grounds for the appeal. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and dismiss the appeal.
I.
On August 30, 2002, Sussman was sentenced in federal court to forty-one
months’ incarceration and five years of supervised release after pleading guilty to
one count of mail fraud and one count of bank fraud. ROA, Vol. 1, at 6-8. On
January 12, 2010, a Colorado state court jury convicted Sussman on one count of
misdemeanor sexual assault, which was a violation of the terms of his supervised
release. Id. at 93-94. He was sentenced to two years’ incarceration. Id. at 94.
On April 26, 2010, the district court granted the government’s Petition for
Issuance of Arrest Warrant Due to Violation of Supervised Release (“Petition”).
Id. at 93. The warrant was issued four days later, and the United States Marshal
filed a detainer with the Denver County Jail. Id. at 95. Although the warrant was
issued, it was not immediately executed because Sussman was in the custody of
the state of Colorado.
While in state custody, Sussman petitioned the United States District Court
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for the District of Colorado numerous times to appoint a federal public defender
to address the Petition. See id. at 96-98, 100, 104-05, 108-10. A magistrate
judge denied without prejudice his motions to appoint counsel because Sussman
had not been haled into federal court. Id. at 112. On February 24, 2011, upon
Sussman’s release from state custody, the United States executed its arrest
warrant for violation of the conditions of supervised release. Id. at 138. Before
the revocation hearing was held, Sussman filed a motion to dismiss the case,
arguing that the “delay in serving the warrant . . . after the detainer against him
was filed” violated due process and Federal Rule of Criminal Procedure
32.1(a)(1). Id. at 140-42.
The district court denied Sussman’s motion to dismiss on May 24, 2011,
stating that:
Defendant Sussman has failed to establish that he was
denied a prompt hearing in connection with his federal
detention and subjected to unreasonable delay. Contrary
to Defendant’s assertion, although a petition alleging
violations of supervised release was filed on April 26,
[2010], and a warrant was issued on April 30, [2010],
Defendant was not “held in custody” for violating his
supervised release on either of those dates. Rather,
Defendant was not “held in custody” for violating his
supervised release until Friday, February 25, 2011, when
the Defendant was transferred into federal custody after
the warrant for violation of supervised release was
executed. Defendant Sussman was taken before the
Magistrate Judge on March 1, 2011. Thus, he was
afforded a timely hearing, as required under Fed. R.
Crim. P. 32.1(a)(1).
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Id. at 150. This appeal followed.
II.
Finding no meritorious grounds for appeal, defense counsel filed a brief
under Anders v. California, 386 U.S. 738 (1976), and requested permission to
withdraw from the case. In accordance with Anders, we notified Sussman of his
right to file a response to his attorney’s brief. Sussman moved the court to
appoint new counsel for further briefing and filed a response on the merits. We
construe Sussman’s pro se response liberally. Garza v. Davis, 596 F.3d 1198,
1201 n.2 (10th Cir. 2010). The government declined to file an answer brief, so
our review will be based on an examination of the record as a whole and
Sussman’s response.
First, Sussman argues that the delay between the filing of the detainer and
the execution of the warrant deprived him of a liberty interest in violation of due
process. He bases this argument on the changes to his conditions of confinement
at the Denver County Jail after the state authorities received the federal detainer.
Before the detainer, he was held in a “misdemeanor pod,” where he had access to
various programs and privileges and could earn good time credit. He was also
working as a “trusty” for the jail. Sussman alleges that, upon receipt of the
detainer, officials at the Denver County Jail revoked his status as “trusty” and
relocated him to a maximum-security floor. ROA, Vol. 1, at 97.
The conditions of which Sussman complains—transfer to a maximum
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security floor and revocation of privileges—lack constitutional dimension. The
Supreme Court has “rejected the notion that every state action carrying adverse
consequences for prison inmates automatically activates a due process right.”
Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976). Any “collateral adverse
consequences” of the government’s decision to lodge a detainer while Sussman
remained in state custody did not trigger due process protections. See United
States v. Romero, 511 F.3d 1281, 1284-85 (10th Cir. 2008) (rejecting similar
argument that due process protections were triggered when a federal detainer was
filed with a state jail but the warrant remained unexecuted).
Federal Rule of Criminal Procedure 32.1(a)(1) requires that “[a] person
held in custody for violating probation or supervised release must be taken
without unnecessary delay before a magistrate judge.” When the United States
filed the Petition, Sussman was being held in custody by the Denver County Jail.
His revocation hearing could not have proceeded until he was in federal custody.
See Romero, 511 F.3d at 1284 (“[T]here is no constitutional duty to provide
prisoners an adversary parole hearing until they are taken into custody as parole
violators.”) (citing Moody, 429 U.S. at 89).
Second, Sussman relies on two immigration cases to argue that he was in
“technical” federal custody when the detainer was filed. First, he likens his case
to Chung Young Chew v. Boyd, 309 F.2d 857 (9th Cir. 1962), where the Ninth
Circuit held that an alien was in the “technical custody” of federal immigration
5
authorities when they filed a detainer with the alien’s prison and a final order of
deportation had been issued. He also points to Vargas v. Swan, 854 F.2d 1028(7th Cir. 1988), where the Seventh Circuit held that an alien in actual custody of a
state prison system could, under certain circumstances, be considered to be in
federal custody upon the lodging of a detainer by immigration authorities. 1 But
whatever these circumstances might be, Sussman was not placed in technical
federal custody after the federal detainer was filed. Unlike the immigration cases,
where the detainer was backed up by a final deportation order, here the effect of
the federal detainer was to notify state officials that Sussman was to be turned
over to federal authorities upon release from his state sentence. Whether
Sussman had in fact violated the conditions of his supervised release was yet to
be determined. A federal detainer is “a matter of comity” between federal and
state authorities; it is simply “an internal administrative mechanism to assure that
an inmate subject to an unexpired term of confinement will not be released from
custody until the jurisdiction asserting a . . . violation has had an opportunity to
act.” Moody, 429 U.S. at 80 n.2. Sussman did not have a right to a revocation
hearing until he was taken into federal custody by execution of the warrant.
Because that hearing occurred within days of the execution of the warrant, the
1
In the immigration context, the Tenth Circuit has rejected the Seventh
Circuit’s reasoning in Vargas. See Galaviz-Medina v. Wooten, 27 F.3d 487, 493
(10th Cir. 1994) (“Almost all the circuit courts considering the issue have
determined that the lodging of a detainer, without more, is insufficient to render
the alien in custody.”).
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United States complied fully with the requirements of Rule 32.1(a) and due
process.
III.
For the foregoing reasons, we GRANT defense counsel’s motion to
withdraw, DENY Sussman’s motion to appoint new counsel, and DISMISS this
appeal.
Entered for the Court
Mary Beck Briscoe
Chief Judge
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