                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-16-2006

Gates v. DeRosa
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2034




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Recommended Citation
"Gates v. DeRosa" (2006). 2006 Decisions. Paper 193.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/193


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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
               ________________

                     No. 06-2034
                  ________________

                 GEORGE D. GATES,

                                 Appellant

                            v.

              WARDEN C.J. DEROSA;
            U.S. PAROLE COMMISSION
       ____________________________________

     On Appeal from the United States District Court
              for the District of New Jersey
              (D.C. Civ. No. 03-cv-06058)
      District Judge: Honorable Robert B. Kugler
      ____________________________________

       Submitted Under Third Circuit LAR 34.1(a)
                  November 15, 2006

Before: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES.

              (Filed: November 16, 2006 )
              _______________________

                     OPINION
              _______________________
PER CURIAM

         George D. Gates appeals from the denial of his § 2241 petition by the United

States District Court for the District of New Jersey. We will affirm the District Court’s

order.

                                                 I.

         In 1985 Gates was sentenced by the U.S. District Court for the District of

Columbia to 30 years in prison for drug charges.1 He was paroled in 1993 and was to

remain under parole supervision until January 2005. In September 1998, Gates was

arrested on federal drug charges in New York and was released on bond on September 30,

1998. On November 24, 1998, the United States Parole Commission issued a warrant

charging Gates with violating the terms of his parole. The Commission provided the

warrant to the United States Marshals Service with a cover memorandum giving

instructions for its execution, including the following paragraph:

                Please assume custody as soon as possible or when located.
                NOTE: If the parolee is already in the custody of federal or state
         authorities, do not execute this warrant. Place a detainer and notify the
         Commission for further instructions. Do not execute the warrant if the
         parolee is released on bond. Also, if a criminal arrest warrant has been
         issued for this parolee, execution of such criminal warrant shall take
         precedence and the Parole Commission is to be notified before its warrant
         may be executed.




         1
             The sentence was later reduced to 20 years.

                                                 2
(emphasis in original). It appears that on July 14, 1999, the United States District Court

for the Southern District of New York issued an arrest warrant in connection with Gates’

pending federal drug charges in New York.2 On October 27, 1999, the Marshals Service

took Gates into custody. The parties do not agree on whether Gates was arrested pursuant

to the parole violator warrant. Gates maintains that he was arrested solely on the parole

violator warrant. The government notes that the documentation from the Marshals

Service appears to indicate that Gates was arrested pursuant to both the arrest warrant and

the parole violator warrant. However, the government also stresses that, contrary to

custom when the Marshals Service has executed a Commission warrant, the official

parole file maintained by the Commission does not contain a return copy of the parole

violator warrant, or other notification by the Marshals Service. The government contends

that the absence of such notification “leads to the logical inference that the parole violator

warrant was never executed.” Government Brief at 10-11.

       Gates was brought to the Southern District of New York for a detention hearing in

November 1999, where he was ordered detained by the U.S. District Court. On

March 19, 2001, Gates was convicted of conspiracy to distribute heroin and sentenced to

120 months in prison, followed by supervised release. The parole violator warrant has

since been placed as a detainer, at FCI Fort Dix (where Gates had been transferred as of


       2
        Gates contends that the District Court did not issue an arrest warrant. However,
the docket for Gates’ criminal case in the Southern District of New York contains an
entry indicating that the court issued an arrest warrant for Gates on July 14, 1999.

                                              3
November 2002), against Gates as he completes his sentence for heroin distribution. The

warrant will be executed when Gates is released, which is anticipated to be July 2008.

       Gates filed a habeas petition pursuant to 28 U.S.C. § 2241 in the District of New

Jersey, contending that his right to a prompt revocation hearing was violated because he

was taken into custody under the parole violator warrant on October 27, 1999. The

District Court denied the petition and Gates now appeals.

                                             II.

       This Court has jurisdiction under 28 U.S.C. § 1291. We exercise plenary review

over the District Court’s legal decisions, and apply a clearly erroneous standard to the

court’s factual findings. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir. 2000).3

       The arrest of a parolee as a parole violator triggers the right to certain due process

protections, including a hearing. See Morrissey v. Brewer, 408 U.S. 471, 485 (1972).

However, the execution of a parole violator warrant in contradiction to the instructions of

the Parole Commission is invalid. See McConnell v. Martin, 896 F.2d 441, 446 (10th

Cir. 1990), cert. denied, 498 U.S. 861 (1990). The courts of appeals which have

considered the question have uniformly concluded that it is not necessary to hold a parole

violator hearing for such a warrant, and that such an invalid warrant can be withdrawn,

placed as a detainer, and executed at a later date. See Barnard v Henman, 89 F.3d 373,




       3
       Superceded by statute (on other grounds). See United States v. Saintville, 218
F.3d 246, 247 (3d Cir. 2000).

                                              4
377 (7th Cir. 1996); Sinclair v. Henman, 986 F.2d 407, 409 (10th Cir. 1993), cert. denied,

510 U.S. 842 (1993), Chandler v. Barncastle, 919 F.2d 23, 26-27 (5th Cir. 1990); see also

United States v. Cox, 475 F.2d 837, 841 (9th Cir. 1973) (execution of parole violator

warrant in conflict with instructions on letter attached to warrant caused warrant to be

invalid for arrest purposes). Formal withdrawal of the improperly executed warrant is not

necessary; the same warrant can be used as a detainer, or a new warrant can be issued.

See Barnard, 89 F.3d at 377 n.8; Chandler, 919 F.2d at 27.

       We need not resolve the question of whether Gates was arrested pursuant to the

parole violator warrant. Even assuming – as Gates contends – that his October 27, 1999

arrest was pursuant to the parole violator warrant alone, it is undisputed that Gates was

released on bond at the time of his October 27, 1999 arrest. It is also clear that the

instructions for the warrant explicitly state that it should not be executed if the parolee is

released on bond. Therefore, the execution of the parole violator warrant was invalid and

did not trigger the duty to hold a revocation hearing.

       Accordingly, we will affirm the District Court’s order denying Gates’ § 2241

petition.




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