USCA1 Opinion

February 29, 1996

[NOT FOR PUBLICATION]

UNITES STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-1750

PETER WHITE,

Petitioner, Appellant,

v.

SHEILA HUBBARD, ET AL.,

Respondents, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, Chief U.S. District Judge]

_________________________

____________________

Before

Torruella, Chief Judge,

___________
Boudin and Stahl, Circuit Judges.
______________

____________________

Peter White on brief pro se.

___________
Scott Harshbarger, Attorney General, and William J. Duensing,
_________________
___________________

Assistant Attorney General, Criminal Bureau, on brief for appellees

____________________

____________________

Per Curiam.
__________

In

this habeas corpus proceeding

under 28

U.S.C.

2254,

petitioner

Peter White

complains that

the

Massachusetts Parole Board abridged his due process rights by

waiting some eleven years before executing a parole violation

warrant

against him.

first awaiting

During that

trial on, and then

federal offenses.

We

period, petitioner

was

incarcerated for, several

agree with the district court

that no

constitutional claim has been presented.

Petitioner is

to a revocation

custody

observed,

mistaken in arguing that

hearing prior

in 1992.

petitioner

Prior thereto,

was never

parole violator by execution

triggers

to his

release from

as the

"taken

he was entitled

federal

Magistrate-Judge

into

custody as

of the warrant"--the event that

the right to a prompt revocation hearing.

Daggett, 429 U.S. 78, 89 (1976); accord, e.g.,

Moody v.
_____

United States

_______

v.

______

Chaklader, 987 F.2d 75,

_________

(noting that

the

77 (1st Cir.

the speedy revocation

____

_____________

1993) (per curiam)

hearing protection under

Due Process Clause is "not triggered when the warrant is

placed

as a detainer at an institution where the ... parolee

is already in custody

charge or serving a

awaiting disposition of an intervening

sentence for a crime committed

[parole]") (quoting United States

_____________

while on

v. Wickham, 618 F.2d 1307,

_______

1309 n.3 (9th Cir. 1979)).

Also misplaced is the

between issuance

related contention that the delay

and execution

-2-

of the

warrant here was

so

unreasonable

board's

as to have resulted

authority

to

generally, e.g., Bennett

_________ ____ _______

return

1994) (per

1402, 1403-05 (9th

prison.

In re Zullo,
___________

See
___

812, 818-19 (6th

Tippens, 39 F.3d
_______

curiam); United States v.

______________

Cir. 1983);

of the parole

petitioner to

v. Bogan, 66 F.3d
_____

Cir. 1995); United States v.

______________

Cir.

in a waiver

88, 90

(5th

Hill, 719
____

F.2d

420 Mass.

872

(1995).

served

Petitioner

insists that the warrant could have been

between the time he was released

on bail in 1981 and

the time he commenced his federal incarceration in 1983.

Yet

it is difficult to conclude that the board acted unreasonably

in deferring action while

especially since state

the federal charges were pending--

law called

for such a

result.

See
___

Mass. Gen. L. ch. 127,

149 (1981); see, e.g.,

___ ____

37

373 (1994), vacated and remanded on

________________________

Mass. App. Ct. 371,

other grounds,
_____________

420 Mass. 872

(1995); Smith v.
_____

In re Zullo,
___________

State Parole
____________

Board, 17 Mass. App. Ct. 145, 150 n.12 (1983).

_____

Petitioner in

any event has failed

he was prejudiced by the delay.

to demonstrate that

No suggestion has been

made

that

deferral of

the revocation

ability to contest the

mitigating

evidence."

petitioner

contends

opportunity

to

concurrently.

in Moody, where
_____

hearing

"undermine[d] his

issue of the violation or

Tippens, 39
_______

only

serve

his

that

he

federal

F.3d at

was

and

90.

-3-

Instead,

deprived

state

Virtually the identical argument was

the Court noted

to proffer

that the parole

of

the

sentences

rejected

commission

retained

the

equivalent

of

unconditional

accord,
______

77;

discretion

concurrent

or

is

grant,

sentences

retroactively,

and

conditional release."

the

to

provide

for

429

U.S. at

87;

e.g., Tippens, 39 F.3d at 90; Chaklader, 987 F.2d at

____ _______
_________

United States v. Fisher,

_____________
______

cert. denied, 495 U.S.

____________

the

"to

895 F.2d 208,

940 (1990).

211 (5th Cir.),

That the board

here, in

end, chose not to exercise its discretion in this manner

without

constitutional

Chaklader, 987 F.2d at 77.

_________

Affirmed.
_________

significance.

See,
___

e.g.,
____

-4-