Vershish v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0201p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Petitioner-Appellant, -
JOSEPH VERSHISH,
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No. 04-5122
v.
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UNITED STATES PAROLE COMMISSION, et al., -
Respondents-Appellees. -
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 03-02858—Bernice B. Donald, District Judge.
Argued: December 10, 2004
Decided and Filed: May 2, 2005
Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.
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COUNSEL
ARGUED: Howard Brett Manis, BOROD & KRAMER, Memphis, Tennessee, for Appellant. Joe
A. Dycus, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellees.
ON BRIEF: Howard Brett Manis, BOROD & KRAMER, Memphis, Tennessee, for Appellant.
William Siler, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellees.
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OPINION
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KENNEDY, Circuit Judge. Petitioner appeals from the denial of his petition for a writ of
habeas corpus in which he alleged that he was denied due process by the United States Parole
Commission’s failure to grant him a parole revocation hearing after he was arrested pursuant to the
Commission’s warrant, as required by 18 U.S.C. § 4214(c). In essence, Petitioner contends that he
was prejudiced because, if he had been granted a revocation hearing, after which his parole would
have been revoked, he could have then served the remaining time on his underlying sentence
concurrently, rather than consecutively, with a subsequent sentence he received as a result of a
conviction on a charge that was filed against him after he was arrested on the Commission’s warrant.
For the following reasons, we VACATE the judgment below and REMAND the case to the district
court for disposition consistent with this opinion.
1
No. 04-5122 Vershish v. United States Parole Comm’n, et al. Page 2
BACKGROUND
Petitioner Vershish was sentenced on February 28, 1986, in the United States District Court
for the Southern District of Florida to thirty-five years confinement for conviction on eight counts
relating to the importation, possession, and distribution of methaqualone. The Florida district court
later amended the sentence to impose a total term of nine years. On September 13, 1990, Vershish
was paroled, and he was to remain under parole supervision until July 18, 1994. In early 1992,
Vershish disappeared from supervision, and the United States Parole Commission issued a parole
violator warrant for his arrest on March 30, 1992, charging him with several parole violations. The
warrant instructed the U.S. Marshal to assume custody as soon as possible. After seven years as a
fugitive, Petitioner was arrested April 9, 1999, on a facsimile copy of the Commission’s warrant.
Within seventeen days of this arrest, Vershish was charged with being a convicted felon in
possession of a firearm and having more than five pieces of false identification. Vershish pled guilty
to these charges and judgment was entered against him on November 24, 1999. He was thereafter
sentenced to a term of eighty-seven months imprisonment. Although the U.S. Marshal had executed
a facsimile copy of the Commission’s original warrant, the Commission, nonetheless, lodged the
original warrant as a detainer. On January 12, 2000, the Commission issued a supplemental warrant
adding the following charges: “Law Violation: A) Felon in Possession of a Firearm, B) Possession
with Intent to Use Five or More False Identification Documents, Fraud.” J.A. 65 (Supplement to
Warrant Application). This warrant was also lodged as a detainer against Vershish, pending
completion of his new sentence.
On January 12, 2000, Vershish informed the Commission that since he was arrested pursuant
to the March 1992 warrant, he was entitled to a revocation hearing. However, relying on its records
from the Marshal’s Service, the Commission apparently believed that the March 1992 warrant had
not been executed but rather lodged as a detainer. It therefore treated Vershish’s request as one for
a dispositional review of the detainer. The Commission notified Vershish’s prison that it would be
conducting an “on-the-record” dispositional review of the detainer and requested that Vershish
complete the required forms. Vershish did not respond and the Commission sent a second request
on August 3, 2000. In early 2003, Vershish wrote the Commision inquiring about the review of his
detainers. The Commission conducted a review and ordered that the detainers would stand.
Thereafter, Vershish filed a petition for a writ of habeas corpus alleging that he was prejudiced by
the Commission’s failure to accord him a revocation hearing after he was arrested pursuant to the
Commission’s warrant. After the district court denied Vershish’s requested relief, this appeal
followed.
ANALYSIS
We review a district court’s decision to deny a petitioner’s request for a writ of habeas
corpus de novo. Asad v. Reno, 242 F.3d 702, 704 (6th Cir. 2001).
Petitioner maintains that he is entitled to a writ of habeas corpus because the Commission
failed to accord him a revocation hearing after he was arrested pursuant to a parole violator warrant,
in violation of 18 U.S.C. § 4214(c)1 of the Parole Commission and Reorganization Act.2 After his
arrest on April 9, 1999, Petitioner remained in custody until he made his appeal bond on January 26,
2004. J.A. 174, 191 (the district court granted an appeal bond on January 21, 2004, but delayed its
1
This subsection provides, in relevant parts, “Any alleged parole violator who is . . . retaken by warrant . . .
shall receive a revocation hearing within ninety days of the date of retaking. . . .”
2
Pursuant to § 11017(a) of the 21st Century Department of Justice Appropriations Authorization Act, Pub. L.
No. 107-273, certain repealed provisions of the United States Code governing federal parole, including 18 U.S.C.
§§ 4201-18, remain in effect - for individuals convicted prior to November 1, 1987 - through November 1, 2005.
No. 04-5122 Vershish v. United States Parole Comm’n, et al. Page 3
issuance for five days). Petitioner served more time between April 9, 1999, and January 26, 2004,
than that which he owed under his original sentence. Petitioner asserts that had the Commission
held a revocation hearing as required, a decision to revoke his parole would have re-triggered the
running of his original conviction, and he could have then served the remaining time under his
original sentence and his sentence for the federal gun and fraudulent document charges concurrently
rather than consecutively. Because he was prejudiced by the Commission’s failure to grant him a
revocation hearing, he contends, the charges in the parole violator warrant should either be
dismissed or he should be accorded a revocation hearing. If he is accorded a revocation hearing and
if his parole is revoked, he continues, he should be entitled to credit for the full period of time he
was detained prior to this revocation hearing.
The Commission, in contrast, maintains that no violation should be found by its failure to
accord Petitioner a revocation hearing. In support of this position, the Commission maintains, in
reliance upon Saylor v. U.S. Board of Parole, 345 F.2d 100, 103 (D.C. Cir. 1965), that it should be
given some reasonable time and latitude to treat its executed warrant as a detainer when, after the
parolee is retaken pursuant to the Commission’s warrant, new criminal charges are shortly thereafter
brought against the parolee. The Commission contends that if the executed warrant were treated as
a detainer, it would not have needed to accord the parolee a revocation hearing until the detainer was
executed upon the expiration of the subsequent sentence. Furthermore, the Commission maintains,
the Petitioner is entitled to only 17 days credit against his original sentence since he was in custody
on the Commission’s warrant alone only from April 9, 1999 (the date he was arrested pursuant to
the parole violator warrant) until April 26, 1999 (the date the new criminal charges were filed
against him).
We find Saylor, a case decided by another circuit more than ten years before the passage of
the Parole Commission and Reorganization Act, to be unpersuasive. In Saylor, Cazada Saylor was
convicted of bank robbery in 1947 and sentenced to a term of 30 years in prison. 345 F.2d at 101.
“In 1959 he was released on parole.” Id. Two years later, the Board of Parole issued a parole
violator warrant for his arrest, “founded upon information that, among other things, state warrants
had been issued . . . for [his] . . . arrest.” Id. Thereafter, an FBI agent arrested him on June 28, 1961
pursuant to the parole violator warrant. Id. He was then turned over to state authorities where he
was convicted and sentenced to a term of imprisonment. Id. Upon his release from state prison in
February 1963, he was taken into custody under the parole violator warrant to serve the remaining
time under his original sentence. Id. Saylor argued that, having been taken into custody pursuant
to a parole violator warrant on June 28, 1961, the unexpired term of his original sentence began to
run as of that date. Id. The court disagreed, concluding that a return to federal “custody … is not
automatically effected by the mere arrest of the parolee by federal agents.” Id. at 102. Rather, the
court continued, “upon arresting a federal parolee as a parole violator, the federal authorities should
have some reasonable time and latitude in deciding whether to return him to the federal institution
to serve the balance of his term or to surrender him to the local authorities for state prosecution.”
Id. at 103.
The Saylor decision fails to support the Commission’s argument in light of the clear statutory
language in the Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-4218. The
Commission asserts that it should be entitled, after the execution of its parole violator warrant, to
hand over the parole violator to authorities for prosecution when there is a subsequent charge
brought against him and to lodge the executed warrant as a detainer. Section 4214(b) specifically
provides that an issued warrant may be placed against a parolee as a detainer if the parolee has been
convicted of an independent criminal offense while on parole. “The Act contains no similar
provision for lodging an executed warrant as a detainer.” Thompson v. Crabtree, 82 F.3d 312, 315
(9th Cir. 1996). As the Thompson court noted, “Congress’s manifest awareness of the distinction
between ‘issuance’ of a warrant and ‘execution’ of . . . a warrant suggests the choice of terminology
was not casual. The Act does not expressly proscribe the lodging of an executed warrant as a
No. 04-5122 Vershish v. United States Parole Comm’n, et al. Page 4
detainer . . . but section 4214(c)’s mandate of a hearing within ninety days of retaking is
unequivocal.” Id. We agree, and conclude that once the warrant had been executed, the
Commission could not simply withdraw it and place it as a detainer, but instead was required to
accord Petitioner a revocation hearing.
Although the Commission did not accord the Petitioner a revocation hearing, the Petitioner
is not entitled to credit against his original sentence for the entire time he spent in custody after the
execution of the parole violator warrant. When the March 1992 warrant was executed at the time
of the Petitioner’s April 9, 1999, arrest, the Petitioner’s parole term resumed. Barrier v. Beaver, 712
F.2d 231, 236-37 (6th Cir. 1983). The Petitioner’s parole term was tolled, however, upon the
issuance of the January 12, 2000, supplemental warrant. Id. Thus, the Petitioner is entitled to 278
days (from April 9, 1999, to January 12, 2000) credit against his parole term.
The Commission argues, however, that since the Petitioner was detained under its authority
only from April 9, 1999 (the date the parole violator warrant was executed) to April 26, 1999 (the
date the new charges were brought against him), the Petitioner should be entitled to only 17 days
credit for its failure to grant him a revocation hearing. The Petitioner’s parole term was not tolled
on April 26, 1999, when he was charged with subsequent offenses. See Thompson, 82 F.3d at 314,
316 n.8 (the parolee’s original sentence was tolled, not when he was charged with additional
offenses after he was arrested pursuant to a parole violator warrant, but when the supplemental
warrant was lodged as a detainer). Nor was the Petitioner’s parole term tolled when he was
convicted of subsequent charges on November 24, 1999. See Still v. U.S. Marshal, 780 F.2d 848,
853-54 (10th Cir. 1985) (the parolee was entitled to credit against his unexpired original sentence
for all the time he served once he was taken into custody pursuant to the Commission’s parole
violator warrant, despite the fact that he was convicted of a charge after the warrant was executed).
The Commission retained jurisdiction to proceed with its parole revocation charges since the
Petitioner’s parole term did not expire, but rather, as noted above, was tolled upon the issuance of
the January 12, 2000, supplemental warrant. Pursuant to 18 U.S.C. § 4214, an alleged parole
violator retaken by the Commission has a right to “a preliminary hearing . . . to determine if there
is probable cause to believe that he has violated a condition of his parole; and upon a finding of
probable cause . . . a revocation hearing.” 18 U.S.C. § 4214(a)(1)(A) and (B). The Petitioner never
received either a preliminary hearing or a revocation hearing. The judgment entered against the
Petitioner on November 24, 1999, obviated any further need for a preliminary hearing. See 18
U.S.C. § 4214(b)(1) (noting that conviction for a criminal offense satisfies the preliminary hearing
requirement); Moody v. Dagget, 429 U.S. 78, 86 n.8 (1976). However, the Petitioner is still entitled
to a revocation hearing.
Thus, we VACATE the judgment below and REMAND to the district court with instructions
to conditionally grant a writ of habeas corpus with respect to Petitioner’s original 1986 federal
sentence unless the Commission (1) takes the Petitioner into custody on the outstanding parole
violation warrant within sixty days of the district court’s order modifying the judgment in this case,
(2) accords the Petitioner a parole revocation hearing within sixty days of taking him into custody
on the outstanding parole violation warrant, and (3) credits the Petitioner with 278 days (the time
he spent in custody from April 9, 1999, to January 12, 2000) on any parole violation sentence
imposed.