780 F.

2d 848

Minor Michael STILL, Petitioner-Appellant,

v.
UNITED STATES MARSHAL, United States Parole
Commission and
Denver Sheriff's Department, Respondents-Appellees.
No. 84-2509.

United States Court of Appeals,

Tenth Circuit.
Dec. 23, 1985.

Stephen M. Munsinger, Keene & Munsinger, Denver, Colo., for

petitioner-appellant.
Robert N. Miller, U.S. Atty., and Douglas W. Curless, Asst. U.S. Atty.,
Denver, Colo., for respondents-appellees.
Before McKAY, LOGAN and SEYMOUR, Circuit Judges.
McKAY, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance
in the determination of this appeal. See Fed.R.App.P. 34(a), Tenth Circuit R.
10(e). The cause is therefore submitted without oral argument.

The issue presented by this appeal is whether the United States Parole
Commission has the statutory authority to withdraw a parole violator warrant,
once it has been executed, and hold it in abeyance pending the disposition of
the state charges which form the basis for the warrant.

Petitioner was originally convicted in federal court of interstate transportation

of a stolen vehicle and was sentenced to a five-year term of imprisonment. On
February 28, 1984, he was released from prison and placed under the
supervision of the Parole Commission. On April 4, 1984, the Commission

issued a parole violator warrant charging petitioner with larceny and theft of a
motor vehicle. On May 21, 1984, petitioner was arrested by Colorado
authorities for auto theft and detained in the Denver jail. The U.S. Marshal sent
a message to the Denver Police Department authorizing it to detain petitioner
and "remand subject to custody of the U.S. Marshal, Denver, Co." Brief for the
Appellant, app. B. The next day, a Deputy U.S. Marshal executed the federal
parole violator warrant, stating on the return that he had executed the warrant
by arresting petitioner and committing him to the Denver jail. That same day, a
U.S. Probation Officer conducted a preliminary interview of petitioner at the
U.S. Marshal's office in Denver, Colorado. During the interview, petitioner
denied that he had committed larceny or auto theft but admitted that he had
committed two technical parole violations.1 Accordingly, the probation officer
determined there was probable cause to believe that petitioner had violated the
conditions of his parole. Petitioner was notified of this finding by a letter from
the Parole Commission dated June 5, 1984, addressed to petitioner "c/o U.S.
Marshal." Brief for the Appellant, app. f. The letter also informed petitioner
that a revocation hearing would be scheduled and that "[n]o new information
was presented at [his] Preliminary Interview that would warrant [his] release
pending the revocation hearing." Id.
4

On July 9, 1984, petitioner's counsel contacted the Parole Commission and

learned that petitioner's revocation hearing had been canceled on June 21, 1984.
On July 13, 1984, petitioner's counsel filed a petition for habeas corpus and
mandamus seeking to compel the Parole Commission to grant petitioner a
timely revocation hearing. In its answer to the petition, the Commission stated
that the parole violator warrant had been withdrawn on June 5, 1985, the same
day that petitioner was notified of the results of the preliminary interview. The
Commission further stated that the warrant was "to be held in abeyance
pending the outcome of State charges." Record, vol. 1, at 6.

The district court denied the petition, finding that "18 U.S.C. Sec. 4213(b)
gives the parole commission the authority to postpone the hearing pending the
outcome of the state charges." Record, vol. 1, at 20. Petitioner filed a motion for
rehearing on the grounds that the district court's Order was based on the
misapprehension that petitioner had "always been in state custody from the time
of the execution of the warrant...." Record, vol. 1, at 22. The district court
entered an Amended Order on October 1, 1984, 593 F.Supp. 1323, making no
finding on the question whether petitioner had ever been in federal custody,2
but ruling that "[a] common sense and policy-sensitive reading of the Act yields
the conclusion that the Parole Commission is not precluded from withdrawing
an executed warrant and then delaying its re-execution." Record, vol. 1, at 25.
Petitioner appeals from this Order, contending that the Commission exceeded

its statutory authority in withdrawing and holding in abeyance the previously

executed warrant. Petitioner also maintains that the procedure used by the
Commission in this case is contrary to the due process safeguards announced in
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
6

In 1976, Congress enacted the Parole Commission and Reorganization Act of

1976, 18 U.S.C. Secs. 4201-4218 (1976), establishing the United States Parole
Commission and setting forth a comprehensive procedural scheme governing
the parole of federal prisoners. The Act established clear standards for the
revocation of parole and, among other things, codified the full panoply of due
process rights extended to alleged parole violators in Morrissey v. Brewer, 408
U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

Section 4213 of the Act provides that the Commission may initiate parole
revocation proceedings using either a warrant or a summons. Regardless of the
procedure used, the revocation proceedings must be initiated as soon as
practicable after the discovery of the alleged parole violation "except when
delay is deemed necessary." 18 U.S.C. Sec. 4213(b) (1976). Ordinarily,
imprisonment is not deemed to be grounds for delay; however, when the
parolee is charged with a criminal offense, "issuance of a summons or warrant
may be suspended pending disposition of the charge." Id.

The Act's procedural requirements are found in section 4214. Under this
section, a parolee "retaken" pursuant to a warrant is entitled to a prompt hearing
to determine whether there is probable cause to believe that he has committed a
parole violation.3 18 U.S.C. Sec. 4214(a)(1)(A) (1976). Upon a finding of
probable cause, the Act mandates a local revocation hearing within sixty days
of the probable cause hearing. 18 U.S.C. Sec. 4214(a)(1)(B) (1976). Where, as
here, the parolee admits to a parole violation at the probable cause hearing, the
Commission has ninety days from the date of the parolee's "retaking" to
conduct a revocation hearing. 18 U.S.C. Sec. 4214(c) (1976).

The Parole Commission and Reorganization Act of 1976 is silent on the

question whether the Commission may defer a parole revocation hearing by
withdrawing a previously executed parole violator warrant. Respondents
contend, however, that such a procedure is authorized by section 4213(b) of the
Act, which provides that "in the case of any parolee charged with a criminal
offense, issuance of a summons or warrant may be suspended pending
disposition of the charge." While this provision gives the Commission
sufficient flexibility to defer a parole revocation hearing until the completion of
the parolee's new sentence, it does not imply that, once the Commission has
triggered the Act's procedural requirements by "retaking" the parolee pursuant

to a warrant, see Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 279, 50
L.Ed.2d 236 (1976), it can circumvent those requirements by simply
withdrawing the warrant. First, we must presume that Congress understood the
distinction between "issuance" and "execution," especially since it is only the
latter which sets in motion the Act's procedural safeguards. Second, even if
section 4213(b) expressly authorized the Commission to suspend execution of a
warrant, it would not include the authority to withdraw a warrant once it has
been executed. Because of the comprehensiveness of the Act's procedural
requirements, we decline to read into it a procedure that Congress could have
easily provided for had it so intended.
10

Respondents have not suggested that any other section of the Act delegates to
the Commission the authority exercised here, nor have we been able to discern
such a grant of authority from reading the statute. We believe that a restrictive
reading of the Act is mandated by the well-established principle of statutory
construction that, in the absence of clearly expressed legislative intent, a statute
should be construed to avoid difficult constitutional issues. St. Martin
Evangelical Lutheran Church v. South Dakota, 451 U.S. 772, 780, 101 S.Ct.
2142, 2147, 68 L.Ed.2d 612 (1981); NLRB v. Catholic Bishop of Chicago, 440
U.S. 490, 507, 99 S.Ct. 1313, 1322, 59 L.Ed.2d 533 (1979); Crowell v. Benson,
285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932). In our view, a broad
construction of the Act would raise serious due process questions in light of
Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
However, we do not reach this issue for we find that the Commission exceeded
its statutory authority by withdrawing the parole violator warrant and holding it
in abeyance.

11

Respondents rely primarily on two circuit court cases that have held that the
Parole Commission may withdraw a previously executed parole violator
warrant and reexecute it at a later date. Thigpen v. United States Parole
Comm'n, 707 F.2d 973 (7th Cir.1983); Franklin v. Fenton, 642 F.2d 760 (3d
Cir. 1980). We believe that these cases are of some doubt, however, and decline
to follow them.

12

In Franklin, the petitioner was on federal parole when he was arrested by state
authorities for receiving stolen goods. When the petitioner failed to appear in
state court, a federal parole violator warrant was issued. The warrant was
executed, and the petitioner remained in federal custody for two weeks. When
the state notified the Parole Commission that it intended to prosecute the
petitioner, the Commission withdrew the warrant, ordered that the petitioner's
parole not be revoked, and released the petitioner to the state authorities. The
Commission then issued a new warrant premised on identical grounds as those

contained in the original warrant and placed the new warrant as a detainer at
the institution where the petitioner was confined. The petitioner challenged the
federal detainer in a habeas corpus action.
13

The Third Circuit upheld the district court's denial of the petition, noting that it
had been the general practice of the Commission to withhold its decision
whether to revoke parole when the parolee is charged with a state offense while
on parole. The court found that the Commission's action was "implicitly
approved" by section 4213(b) of the Act, which provides that "in the case of
any parolee charged with a criminal offense, issuance of a summons or warrant
may be suspended pending disposition of the charge." Franklin, 642 F.2d at
763. In conclusion, the Franklin court remarked:

14 procedure followed here is consistent with the spirit of Sec. 4213(b) which
The
allows issuance of a warrant to be suspended pending disposition of charges against
the parolee. It is consistent also with the philosophy expressed in Moody v. Daggett,
429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), of permitting the Commission to
consider events occurring after issuance of the warrant. Denying the Commission
flexibility to defer final decision would serve the interests of neither parolee nor
Commission. A restrictive approach would result in the revocation of parole in some
situations in which later developments would bring about a different result.
15

Id.

16

In Thigpen v. United States Parole Comm'n, 707 F.2d 973 (7th Cir.1983), the
Seventh Circuit, relying exclusively on the reasoning of Franklin, held that "a
common sense and policy-sensitive reading of the Act yields the conclusion
that the Commission is not forbidden, once having executed a warrant ..., from
withdrawing that warrant and delaying its re-execution." Id. at 977.

17

While we agree with the Franklin and Thigpen courts that parole revocation
decisions should be premised upon consideration of all relevant information,
we do not find this policy to be a sufficient basis for reading into the Act
something obviously omitted from its terms. First, the Commission may
already effectuate this policy by executing parole violator warrants only in
those cases where no legitimate purpose would be served by delaying a parole
revocation hearing. Second, as the legislative history of the Act makes clear,
delaying disposition of the parole revocation hearing will often be to the
parolee's disadvantage:

18

If the offender during the period of his parole supervision is convicted of new

offenses under state or federal law, and if the conviction is for more than a
minor violation, revocation of parole is almost automatic. In such cases, the
issue before the Commission is how much of the time remaining on the
original sentence must be served by the parolee and whether this time should be
served concurrently or consecutively with the new sentence. By conducting a
parole revocation hearing early in the new sentence, the Commission retains
the option to run the original sentence concurrent with the new sentence and the
parolee is spared the unnecessary complications of an unresolved parole
detainer pending throughout the service of his new sentence.4
19

S.Rep. No. 369, 94th Cong., 2d Sess. 17-18, reprinted in 1976 U.S.Code Cong.
& Ad.News 335, 339.

20

Furthermore, we believe that the conclusion reached by the Third Circuit in

Franklin is doubtful in light of the Third Circuit's earlier decision in Maslauskas
v. United States Board of Parole, 639 F.2d 935 (3d Cir.1980). There, relying on
Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), and its
interpretation of the statutory predecessor of the new Act, the Third Circuit
held that the Parole Board could not execute a warrant, decide that the parolee's
parole should not be revoked, and then issue another warrant premised on the
same grounds as those contained in the first warrant.5 In Franklin, the Third
Circuit found that the Maslauskas decision was not controlling because
Maslauskas was based on an interpretation of the statutory predecessor to the
1976 Act. However, the Franklin court's approval of the Commission's action
was based in part on an interpretation of 28 C.F.R. Sec. 2.44(a) (1979), which
provides that a warrant may be issued or withdrawn by a member of the
Commission. Ironically, in Maslauskas, the court had relied on the phrase "a
warrant" in 28 C.F.R. Sec. 2.35 (1972) in concluding that the regulation
contemplated "execution [of] only one warrant for any given parole violation or
violations." 639 F.2d at 939.

21

Having determined that the Commission exceeded its statutory authority in

withdrawing the parole violator warrant and therefore delaying petitioner's
revocation hearing, we must determine what relief, if any, petitioner is entitled
to as a result of this violation. Because petitioner has been in the custody of
state officials since the withdrawal of the parole violator warrant, and because
he is still serving a state sentence, the Commission's failure to afford petitioner
a timely revocation hearing does not entitle him to be released from
imprisonment. Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.1981); Spotted
Bear v. McCall, 648 F.2d 546, 547 (9th Cir.1980). However, because petitioner
was taken into federal custody under the parole violator warrant on May 22,
1984, any time he has served since that date must be credited toward the

unexpired term of his federal sentence.

22

Petitioner's federal sentence began to run upon execution of the parole violator
warrant, see Barrier v. Beaver, 712 F.2d 231, 236 (6th Cir.1983), and the
unauthorized withdrawal of the warrant did not toll the running of his sentence.
Accordingly, we reverse and remand with directions that the Parole
Commission afford petitioner a revocation hearing as soon as practicable and
not later than sixty days from the date hereof. If such hearing results in the
revocation of petitioner's parole, the Commission is further ordered to credit
petitioner with the number of days he has spent in custody since May 22, 1984.
Cf. United States ex rel. Fitzpatrick v. United States Parole Comm'n, 444
F.Supp. 1302 (M.D.Pa.1978).

23

REVERSED.
LOGAN, Circuit Judge, dissenting:

24

I must dissent.

25

I do not see any significant distinctions between the case before us and Thigpen
v. United States Parole Commission, 707 F.2d 973 (7th Cir.1983), and Franklin
v. Fenton, 642 F.2d 760 (3d Cir.1980), both of which allowed withdrawal of an
issued parole violator warrant. Accord Thompson v. United States Parole
Commission, 553 F.Supp. 1027, 1030 (D.D.C.1983).

26

I would not hesitate to create a split in the circuits if I were convinced that these
other courts were interpreting the law incorrectly. I think, however, that
Thigpen and Franklin properly interpreted the Parole Commission and
Reorganization Act of 1976 (the 1976 Act), given the gloss the Supreme Court
provided in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236
(1976). The 1976 Act, particularly at 18 U.S.C. Sec. 4214, grants the United
States Parole Commission broad discretion in its handling of parole
revocations.

27

The majority uses the principle of strict statutory construction to conclude that
Still's hearing rights were violated. Still was "retaken," the majority holds, and
under 18 U.S.C. Sec. 4214 a retaking requires a hearing. As the majority
correctly notes, no express provision in the parole statutes provides for the
withdrawal of a warrant once it has been executed. But similarly there is no
express provision in the parole statutes for delay of execution of an issued
warrant. Despite this, Moody expressly held that the Parole Commission could

issue a warrant against an incarcerated parole violator without executing it

promptly and without triggering the right to a hearing. 429 U.S. at 89, 97 S.Ct.
at 279. The Parole Commission can instead lodge an issued warrant as a
detainer against the parolee, to be executed when the parolee is released from
present custody. Id. The Moody Court held that the lack of an express provision
in the statute and the general due process hearing rights found earlier for
parolees in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484
(1972), did not require a contrary decision.
28

The Supreme Court's decision in Moody cannot reasonably be reconciled with

the majority's holding today. The execution and withdrawal of the violator
warrant here seem to me to be the functional equivalent of the issuance without
execution that Moody upheld. Still was not removed from the state jail at the
time of this warrant's "execution," and he remained incarcerated on the state
charge at all times thereafter. There is every indication that the Parole
Commission's attempted execution here was simply a bureaucratic mistake.
Because we must say that the Commission could have initially issued the
warrant and lodged it as a detainer, I believe we also must say that the
Commission could correct its error by withdrawing the executed warrant and
restoring Still to his intended detainer status.

29

The majority points to various "detriments" that would flow from the delay in
Still's revocation hearing if we allow withdrawal of the executed warrant. But
any such detriment is identical to the delay and detriment experienced by a
parolee subject to an issued but unexecuted warrant. In Moody the Supreme
Court discussed these detriments at length and expressly found that they did not
raise any due process or statutory construction problems. See Moody, 429 U.S.
at 85-88 & n. 9, 97 S.Ct. at 277-79 & n. 9. I do not see how we can now say
that these detriments do raise due process and statutory construction problems.

30

I add that I think it is generally to the parolee's advantage to permit the

Commission to delay the parole revocation hearing, even when the deferral
results from withdrawal of an executed warrant. If the Commission were forced
to hold an immediate hearing, it surely would order the parolee's original
sentence to begin running again only on release from the confinement portion
of the new sentence or on the date of reparole, and not concurrently. See 28
C.F.R. Sec. 2.47(d)(2) (general policy is to restart only on release from new
confinement). The Commission presently can act favorably to the prisoner even
while he is being detained on unrelated charges; the statute itself contemplates
a review of parole detainers within 180 days of notification to the Commission
of placement serving a new sentence. 18 U.S.C. Sec. 4214(b)(1). 1

31

Further, as noted in Thigpen, the flexibility of being able to defer setting the
procedural scheme in motion

32
"serves
the salutary policy of allowing a suspected parole violator to clear himself of
state charges prior to his revocation hearing, thus avoiding the necessity of his
choosing between pleading his right against self-incrimination, making admissions
against his interests, or testifying falsely to exculpate himself. It also conforms to the
philosophy expressed in Moody v. Daggett, 429 U.S. 78, 89, 97 S.Ct. 274, 279, 50
L.Ed.2d 236 (1976), that the Commission should be permitted to consider, before its
final decision, events occurring after the issuance of the warrant."
33

707 F.2d at 976.

34

In the recent case of Brock v. United Transportation Union, --- U.S. ----, 106
S.Ct. 286, 88 L.Ed.2d 2, (1985), the Supreme Court considered the question of
the Secretary of Labor's power to withdraw a citation already issued to an
employer for allegedly unsafe working conditions in violation of the
Occupational Safety and Health Act. An interested party argued that the
Secretary of Labor could not withdraw the citation once it had been issued. In
upholding the Secretary's power to withdraw the citation, the Court stated:

35 is the Secretary, not the Commission, who sets the substantive standards for the
"It
work place, and only the Secretary has the authority to determine if a citation should
be issued to an employer for unsafe working conditions, 29 U.S.C. Sec. 658. A
necessary adjunct of that power is the authority to withdraw a citation and enter into
settlement discussions with the employer."
36

Id. at 288.

37

Although Brock does not deal with the power to reissue a withdrawn complaint,
the Supreme Court's comment seems applicable to the instant situation. The
Parole Commission has broad discretion to administer the 1976 Act. If it can
defer the execution of a warrant that it had issued during the service of a
sentence for a separate crime, as Moody expressly holds, it should also be
empowered to withdraw an issued warrant, without prejudice to reissuance,
even after a purported "execution," at least in circumstances in which there was
no new incarceration because of the execution of that warrant.

38

Finally, even if I were to agree with the majority that the withdrawal of the
warrant violated the 1976 Act, I still would disagree with its holding that Still's
federal sentence recommenced on the day the warrant was executed and was

never tolled thereafter. Barrier v. Beaver, 712 F.2d 231 (6th Cir.1983), upon
which the majority relies for that proposition, did not consider a situation at all
like that at issue here. For time spent serving a state sentence in a state
institution to count against a parole violator's original federal sentence, two
things are required: (1) a revocation of the federal parole, and (2) a
redesignation by the United States Attorney General of the state prison as the
one in which the remainder of the original sentence could be served. Hash v.
Henderson, 385 F.2d 475, 477 (8th Cir.1967). Neither step was taken here.
39

Further, it is settled law that if there has been no prejudice to a petitioner from a
failure to hold a hearing within sixty days pursuant to Sec. 4214, the only
remedy for that violation is to give the petitioner a parole revocation hearing.
See Smith v. United States, 577 F.2d 1025, 1027-29 (5th Cir.1978) (fully
discussing remedy problem); accord Hopper v. United States Parole
Commission, 702 F.2d 842, 847 (9th Cir.1983); Carlton v. Keohane, 691 F.2d
992, 993 (11th Cir.1982); Harris v. Day, 649 F.2d 755, 761-62 (10th Cir.1981).

40

Here Still has not been prejudiced. As noted, his experience was essentially
identical to that of a parolee in state custody against whom an issued violator
warrant has been lodged as a detainer. Under Moody this latter circumstance is
legal. I therefore see nothing in Still's circumstance that could be labeled as
prejudice from the denial of a prompt parole revocation hearing. The
Commission retains the same power to refuse revocation or to consider the time
spent in state custody in its eventual revocation decision. Also, here, as in
Smith, the Commission's failure to hold a hearing was not an intentional
violation of Sec. 4214. See Smith, 577 F.2d at 1029; see also Carlton, 691 F.2d
at 993. As Smith emphasized, an unintentional violation does not warrant the
"draconian" remedy the majority here imposes. 577 F.2d at 1028-29.

41

For the above reasons, I dissent.

The technical parole violations were failure to report a change of address and
change of employment

The record is unclear as to whether the Colorado authorities ever relinquished

custody of petitioner to the federal authorities. The record does show, however,
that a Deputy U.S. Marshal executed the parole violator warrant on May 22,
1984. The warrant commands the federal officer "to execute this warrant by
taking the above-named ... and hold him in your custody." Brief of Appellant,
app. A (emphasis added). The Deputy U.S. Marshal stated on the return of

service that he "executed same by arresting [petitioner] ... and committing him
to Denver City Jail." Brief of Appellant, app. C (emphasis added)
The Parole Commission's preliminary interview form recites that it is to be
completed "following the arrest on a Warrant." It states further that "
[f]ollowing the interview, you will be held in local custody pending a
determination by the Commission as to whether there is probable cause...."
Brief of Appellant, app. D. The summary report of petitioner's preliminary
interview states: "The parolee was taken into Federal custody May 22, 1984
...." Brief for the Appellant, app. E at 1.
The Commission's regulations establish that the Federal officer "shall execute
[the] warrant by taking the parolee and returning him to the custody of the
Attorney General," 28 C.F.R. Sec. 2.46(a), and that "[o]n arrest of the parolee
the officer executing the warrant shall deliver to him a copy of the Warrant
Application ...." Id. at Sec. 2.46(b) (emphasis added). The Preliminary
Interview is conducted after the parolee "is retaken on a warrant issued by a
Commissioner ...." Id. Sec. 2.48(a). These regulations clearly contemplate that
the parolee is taken into federal custody when these procedures are followed.
Thus, we must accept petitioner's uncontroverted assertion that he was taken
into federal custody when the Deputy U.S. Marshal executed the parole violator
warrant on May 22, 1984.
3

The parolee's conviction of a crime committed subsequent to his release on

parole obviates the requirement for a probable cause hearing. 18 U.S.C. Sec.
4214(b)(1) (1976). Nor is a hearing required if the parolee knowingly and
intelligently waives his right to such a hearing. 18 U.S.C. Sec. 4214(c) (1976)

In Cooper v. Lockhart, 489 F.2d 308, 314 n. 10 (8th Cir.1973), the United
States Court of Appeals for the Eighth Circuit described the detrimental
consequences of a detainer on the parolee's period of confinement as follows:
[T]he inmate is (1) deprived of an opportunity to obtain a sentence to run
concurrently with the sentence being served at the time the detainer is filed; (2)
classified as a maximum or close custody risk; (3) ineligible for initial
assignments to less than maximum security prisons (i.e., honor farms or
forestry camp work); (4) ineligible for trustee status; (5) not allowed to live in
preferred living quarters such as dormitories; (6) ineligible for study-release
programs or work-release programs; (7) ineligible to be transferred to preferred
medium or minimum custody institutions within the correctional system, which
includes the removal of any possibility of transfer to an institution more
appropriate for youthful offenders; (8) not entitled to preferred prison jobs
which carry higher wages and entitle them to additional good time credits

against their sentence; (9) inhibited by the denial of possibility of parole or any
commutation of his sentence; (10) caused anxiety and thus hindered in the
overall rehabilitation process since he cannot take maximum advantage of his
institutional opportunities.
See also Moody v. Daggett, 429 U.S. 78, 93-95, 97 S.Ct. 274, 281-82, 50
L.Ed.2d 236 (1976) (Stevens, J., dissenting).
5

The Maslauskas court observed that its extensive research had disclosed no
case in which a court had upheld the execution of a second warrant issued on
the same grounds as one previously executed and disposed of in favor of the
parolee. The court cited several cases where subsequent parole violations
formed the basis for the issuance of the second warrant. 639 F.2d at 939. E.q.,
Johnson v. Holley, 528 F.2d 116 (7th Cir.1975); United States ex rel. Davis v.
Johnson, 495 F.2d 335 (3d Cir.1974), cert. denied, 419 U.S. 878, 95 S.Ct. 143,
42 L.Ed.2d 118 (1974); Arrington v. McGruder, 490 F.2d 795 (D.C.Cir.1974);
Wright v. Blackwell, 402 F.2d 489 (5th Cir.1968); Lipscomb v. Stevens, 349
F.2d 997 (6th Cir.1965), cert. denied, 382 U.S. 993, 86 S.Ct. 573, 15 L.Ed.2d
479 (1965); Brown v. Taylor, 287 F.2d 334 (10th Cir.1961), cert. denied, 366
U.S. 970, 81 S.Ct. 1933, 6 L.Ed.2d 1259 (1961). The court cited only three
cases in which a second warrant issued on the same grounds as the first, Greene
v. Michigan Department of Corrections, 315 F.2d 546 (6th Cir.1963); United
States ex rel. Hughes v. Ragen, 154 F.2d 289 (7th Cir.1946); Smith v.
Witkowski, C.A. No. 77-3881 (N.D.Ill. December 21, 1979), but, in all those
cases, the first warrant had never been executed. See also Wade v. United
States Board of Parole, 392 F.Supp. 327 (E.D.Wash.1975) (Court's ruling to
quash warrant not to be construed to foreclose later reissuance of unexecuted
warrant)

If evidence of mitigation may be lost unless some action is taken promptly, the
Commission has the power to conduct an immediate hearing at which the
evidence can be preserved. See Moody, 429 U.S. at 88 n. 9, 97 S.Ct. at 279 n. 9