989 F.

2d 420

William H. MILLER, Petitioner-Appellant,

v.
FEDERAL BUREAU OF PRISONS; A.F. Beeler, RespondentsAppellees.
No. 92-6228.

United States Court of Appeals,

Tenth Circuit.
March 30, 1993.

William H. Miller, pro se.

Timothy D. Leonard, U.S. Atty., and Debra A. Woods, Asst. U.S. Atty.,
Oklahoma City, OK, for respondents-appellees.
Before LOGAN and MOORE, Circuit Judges, and LUNGSTRUM, *
District Judge.
LOGAN, Circuit Judge.

Petitioner William H. Miller, a federal prisoner serving a parole violator term at

the Federal Correctional Institution at El Reno, Oklahoma, appeals from an
order of the district court dismissing his petition for writ of habeas corpus, filed
under 28 U.S.C. 2241. Originally convicted in 1971 of selling narcotic drugs,
petitioner was sentenced to two concurrent twenty-year terms of imprisonment.
He was initially paroled on April 21, 1978, but since then his parole has been
revoked five times by the United States Parole Commission. In this action,
petitioner claims that the Parole Commission refused credit for one year that he
spent out on parole without giving him proper notice and violated his due
process rights by failing to provide him with a timely revocation hearing after
he was taken into custody on a parole violator warrant issued in 1982. We
exercise jurisdiction under 28 U.S.C. 1291 and affirm in part and reverse in
part.1

* We address first petitioner's claim that, without proper notice, the Parole
Commission refused credit for one year that he spent out on parole. In February

1979, less than one year after petitioner was initially paroled, the Parole
Commission issued a warrant for his arrest based on alleged parole violations.
Petitioner was apprehended on April 1, 1980. On the day following his arrest, a
probation officer interviewed petitioner about the parole violations alleged in
the warrant application. Petitioner admitted the violations, and the probation
officer recommended that petitioner be returned to prison as a parole violator.
The Parole Commission, in a Notice of Action, revoked petitioner's parole and
refused him credit for street time "from Dec. 8, 1978, to April 1, 1979." I R.
doc. 21, Ex. F. Petitioner was reparoled on November 5, 1980.
3

Four years later the Parole Commission issued a corrected Notice of Action
after an audit of petitioner's sentence revealed a discrepancy. The corrected
Notice of Action indicated that petitioner would not receive credit for street
time "from December 8, 1978, to April 1, 1980," id., Ex. Q, because he was in
absconder status for this entire period. Petitioner complains now that he was
never served with the corrected Notice of Action or with notice of his right to
appeal the corrected Notice, and that he should not lose an additional year of
credit because he was in fact reporting to a probation officer during the time in
question.

The magistrate judge, whose findings were adopted by the district court, found
that the Parole "Commission's correction of its error was entirely consistent
with the language of [18 U.S.C.] 4210(b)(2)."2 Because petitioner could not
show prejudice from inadequate notice there was no deprivation of due process.
I R. doc. 24 at 7.

The Parole Commission's decision to grant or deny parole will not be disturbed
unless the Commission abused its discretion or acted arbitrarily or capriciously.
Turner v. United States Parole Comm'n, 934 F.2d 254, 256 (10th Cir.), cert.
denied, --- U.S. ----, 112 S.Ct. 239, 116 L.Ed.2d 195 (1991). Furthermore, we
are guided by the principle that "an administrative agency's interpretation and
application of its own regulations should be given some deference by the
courts." Sotelo v. Hadden, 721 F.2d 700, 702 (10th Cir.1983). After thoroughly
reviewing the record, we find no basis upon which to reverse the district court's
dismissal of this claim.

The Parole Commission has statutory authority under the Parole Commission
and Reorganization Act of 1976 (the Act), 18 U.S.C. 4201-4218,3 to
"modify or revoke an order paroling any eligible prisoner." 18 U.S.C. 4203(b)
(3). Additionally, the Parole Commission may reopen a case upon the receipt
of new information. 28 C.F.R. 2.28(a), (f). The discovery of an error may be
considered "new information" sufficient to justify reopening a case.

McClanahan v. Mulcrome, 636 F.2d 1190, 1191 (10th Cir.1980); see also
McQuerry v. United States Parole Comm'n, 961 F.2d 842, 847 (9th Cir.1992)
(recognizing that Parole Commission may reopen case under 28 C.F.R. 2.28
to revoke street time that had been credited erroneously).
7

When the Parole Commission revokes parole for parole violations, it also has
the discretion to order the forfeiture of any time during which the parolee
"intentionally refused or failed to respond to any reasonable request, order,
summons or warrant of the Commission." 28 C.F.R. 2.52(c)(1). Despite
petitioner's claim that he reported at all times after April 1, 1979, under this
regulation the Parole Commission clearly has authority to order the forfeiture of
street time once it finds that a parolee has intentionally refused to cooperate.
Although the record does not indicate that the Parole Commission made such a
finding in this case, the Parole Commission maintains that it originally intended
to refuse credit for time petitioner spent on parole until April 1, 1980, and there
is no evidence to suggest that such a determination was arbitrary or capricious.
On the contrary, the Parole Commission's order that petitioner accrue credit for
none of the time he spent on parole from December 8, 1978, to April 1, 1980, is
consistent with the record.

Petitioner received a full revocation hearing on April 2, 1980, in which he

admitted to all of the parole violations alleged in the warrant application. He
ultimately received notice of the corrected Notice of Action, and he alleges no
prejudice from the delayed notice. There is no indication that petitioner has
even requested that the Parole Commission reopen his case for reconsideration
of the corrected Notice of Action. Finally, there is no evidence to suggest that
the Parole Commission was doing anything other than correcting a clerical
error. Under these circumstances, we cannot conclude that the Parole
Commission's failure to provide petitioner with prompt notice of the corrected
Notice of Action resulted in a violation of his due process rights.4 See Camacho
v. White, 918 F.2d 74, 79 (9th Cir.1990) (parolee claiming violation of due
process from inadequate notice of parole revocation hearing must show
prejudice).

II
9

We next address petitioner's challenge of the Parole Commission's authority to

withdraw a warrant without holding a revocation hearing. On November 9,
1981, one year after petitioner was paroled for the second time, he was arrested
and charged with larceny, forgery, and uttering. The Parole Commission issued
a parole violator warrant April 7, 1982, based upon the charged crimes, as well
as other parole violations. Petitioner was arrested pursuant to the parole violator

warrant. Following the execution of the warrant, the Parole Commission issued
a Notice of Action reinstating petitioner to supervision and directing that a
summons be issued in sixty days. However, petitioner was not subpoenaed to
appear at a local revocation hearing within sixty days. Instead, the Parole
Commission withdrew the parole violator warrant.
10

Thereafter, on October 20, 1982, petitioner was convicted of larceny. Based on

this conviction and petitioner's failure to appear for sentencing, the Parole
Commission issued a new parole violator warrant. The warrant was executed
on December 22, 1982, and petitioner received a parole revocation hearing on
January 14, 1983. The Parole Commission issued a Notice of Action on
February 19, 1983, revoking petitioner's parole and ordering that none of the
time spent on parole would be credited. More than nine years later, petitioner
brought this habeas action challenging the Parole Commission's authority to
delay his parole revocation hearing until he had been convicted on the
underlying state charges. Petitioner claims that under Still v. United States
Marshal, 780 F.2d 848 (10th Cir.1985), his right to a timely parole revocation
hearing was triggered once the Parole Commission executed the warrant.

11

In Still, this court held that the Parole Commission exceeded its statutory
authority when it withdrew an executed parole violator warrant and held it in
abeyance pending the outcome of state charges upon which the warrant was
based. 780 F.2d at 851-52. Still stands for the proposition that once he is taken
into custody pursuant to a parole violator warrant, a parolee is entitled to the
procedural protections of the Parole Commission and Reorganization Act of
1976, 18 U.S.C. 4201-4218. Turner, 934 F.2d at 257.

12

Respondents maintain that the preliminary interviewer and the case analyst for
the Parole Commission recommended releasing petitioner because there was
insufficient evidence at that time to find probable cause to believe he had
violated parole. The magistrate judge distinguished this case from Still, finding
that petitioner did not dispute respondents' assertion regarding probable cause,
that the Parole Commission acted within its statutory authority, and that
petitioner received all the process he was due with regard to his 1983 parole
revocation.

13

We review de novo the question of whether the Parole Commission acted

within the scope of its statutory authority. Turner, 934 F.2d at 256. In its
present state, we cannot agree with the magistrate judge's finding that this case
is distinguishable from Still. Petitioner claims that a parole officer found
probable cause as to each of the parole violations alleged on the warrant
application during a preliminary interview. He also asserts that the Parole

Commission notified him that it found probable cause to hold him for a parole
revocation hearing, and even notified him of the date, time, and place of the
hearing.5
14

We agree with petitioner that the magistrate judge clearly erred in finding that
the preliminary interviewer and the case analyst found insufficient evidence to
make a probable cause determination. The magistrate judge's finding was based
solely upon respondents' "undisputed" representation. Evidently, the magistrate
judge overlooked petitioner's statements in his Traverse to Government's
Response to Petition for Writ of Habeas Corpus that the interviewer found
probable cause, and that the Parole Commission issued a Notice of Action
ordering that petitioner be released "notwithstanding probable cause to hold for
final revocation hearing." After combing the record, we find no evidence that
the preliminary interviewer, the case analyst, or any one else acting on behalf
of the Parole Commission ever found insufficient evidence to make a probable
cause determination.6

15

Once the Parole Commission triggers the Act's procedural requirements "by
'retaking' the parolee pursuant to a warrant, it can[not] circumvent those
requirements by simply withdrawing the warrant." Still, 780 F.2d at 851
(citation omitted). A parolee retaken pursuant to a parole violator warrant is
entitled to a preliminary hearing "without unnecessary delay, to determine if
there is probable cause to believe that he has violated a condition of his parole."
18 U.S.C. 4214(a)(1)(A); see also 28 C.F.R. 2.48(a) (purpose of
preliminary interview is to "determine if there is probable cause to believe that
the parolee has violated his parole as charged, and if so, whether a revocation
hearing should be conducted"). The Act also requires a parole revocation
hearing upon a finding of probable cause at the preliminary hearing. See 18
U.S.C. 4214(a)(1)(B); see also 28 C.F.R. 2.49(e) (revocation hearing must
be held within sixty days of probable cause determination).

16

Petitioner's reinstatement to supervision without a revocation hearing would

have been proper if the preliminary interviewer or someone else acting on
behalf of the Parole Commission had in fact been unable to find probable cause
to hold petitioner for a final revocation hearing. See 28 C.F.R. 2.48(d)(1)
(contemplates parolee's release if, after the preliminary interview, the
interviewing officer and regional commissioner agree there is no probable
cause that parolee violated the conditions of parole). If, on the other hand,
petitioner was reinstated notwithstanding probable cause to hold him for a
revocation hearing, then the Parole Commission lacked the statutory authority
to withdraw the parole violator warrant and thereby delay petitioner's
revocation hearing pending the outcome of the state charges. See Still, 780 F.2d

at 853. If, on remand, the district court finds the latter to be the case, then it
should be guided by our discussion in Still, 780 F.2d at 853-54, in determining
the appropriate remedy.
17

The judgment of the district court is AFFIRMED in part, REVERSED in part,

and REMANDED for further proceedings consistent with this opinion.7

The Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument

The magistrate judge found that the issues raised in petitioner's habeas action
could be resolved on the basis of the record, without an evidentiary hearing. I
R. doc. 24 at 2

18 U.S.C. 4201-4218 have been repealed, Pub.L. No. 98-473, 218(a)(5),

98 Stat. 2027 (1984), but continue in effect as to petitioner's offense. See id.
235(b)(1), 98 Stat. 2032; Pub.L. No. 101-650, 316, 104 Stat. 5089, 5115
(1990) (extending life of 18 U.S.C. 4201-4218 for ten years)

For purposes of this action, we have assumed without deciding that the federal
parole statutes create a liberty interest entitled to protection under the Due
Process Clause. See Nunez- Guardado v. Hadden, 722 F.2d 618, 623 (10th
Cir.1983) (declining to address whether federal parole statutes create liberty
interest sufficient to require some measure of constitutional protection); cf.
Roberts v. Corrothers, 812 F.2d 1173, 1179 (9th Cir.1987) (declining to decide
the issue, but noting that the Eighth, Seventh, and Fifth Circuits have held that
federal parole statutes create a liberty interest entitled to some measure of
constitutional protection)

The record contains no documentation of these decisions by the Parole

Commission

Petitioner submitted documents to this court which support his position that the
preliminary interviewer, and a case analyst and regional commissioner for the
Parole Commission, found probable cause to hold him for a revocation hearing.
See Appellant's App., doc. 5, Summary Report of Preliminary Interview, dated
June 3, 1982; see also Appellant's Supp.App., Case Analyst Memorandum,

dated June 11, 1982. Petitioner states that he obtained some of these documents
through Freedom of Information Act requests. Appellant's Supp.App. at 1. This
evidence was not available to the district court. Respondents have not had an
opportunity to respond to the evidence. Therefore, we have not based our
reversal on these documents. On remand, the district court should consider
petitioner's claim in light of this new evidence
7

We note that petitioner is scheduled to be released in December, 1993. We

assume that the district court will act promptly on remand