
USCA1 Opinion

	




          November 20, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1103                                      DALE TUTTLE,                                Petitioner, Appellant,                                          v.                           U.S. PAROLE COMMISSION, ET AL.,                               Respondents, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Richard G. Stearns, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Dale Tuttle on brief pro se.            ___________            Donald  K. Stern,  United States  Attorney,  and David  S. Mackey,            ________________                                 ________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                 ____________________                      Per Curiam.  Pro  se appellant Dale Tuttle,  who is                      __________   ___  __            imprisoned  in Massachusetts on  an armed robbery conviction,            appeals  from the  district court's  dismissal of  his habeas            petition.  We affirm.                      Tuttle  committed  the  robbery  for  which  he  is            presently confined while on federal parole.  Accordingly, the            United  States Parole  Commission  issued a  warrant for  his            arrest,  but  placed  it  as   a  detainer  against  him   in            Massachusetts.  In his habeas petition, Tuttle sought removal            of  the detainer, alleging that the Commission had not held a            parole  revocation hearing or  conducted timely dispositional            review of the detainer.  Both parties agree that, in order to            obtain habeas relief, Tuttle  must show that the Commission's            alleged delay has prejudiced him.                      Tuttle argues that  he has been prejudiced  because            mitigating evidence that might have induced the Commission to            permit  his continued  release on  parole despite  the parole            violation  has been  lost during  the period  of delay.   For            purposes  of this opinion, we assume, but do not decide, that            the  loss  of  mitigating   evidence  relevant  to  a  parole            revocation hearing  or dispositional review  would constitute            prejudice.1   See  United States v.  Williams, 558  F.2d 224,                          ___  _____________     ________                                            ____________________            1.  A few courts have also  suggested that due process rights            may be implicated if delay in executing a warrant lodged as a            detainer  might result  in  the loss  of mitigating  evidence            relevant to the decision to revoke parole.  See United States                                                        ___ _____________            v. Williams, 558  F.2d 224, 227 (5th Cir. 1977); U.S. ex rel.               ________                                      ____________                                         -3-            227 (5th Cir. 1977) ("even if [a parolee] admits the [parole]            violation, he  may be  prejudiced if delay  has impaired  his            ability to present evidence of mitigating circumstances  that            might affect the decision to incarcerate him").  But, because            Tuttle's  claims of  prejudice  are  conclusory  in  critical            respects  or otherwise  unpersuasive, habeas  relief was  not            warranted,  nor was an evidentiary  hearing.  See McDonald v.                                                          ___ ________            New Mexico Parole Board,  955 F.2d 631, 634 (10th  Cir. 1991)            _______________________            (dismissal of habeas petition  asserting delay in executing a            warrant   was  justified   in   part   because   petitioner's            allegations  of prejudice were conclusory), cert. denied, 504                                                        ____________            U.S. 920 (1992).                      Tuttle claims that his probation officers no longer            remember his good conduct while on parole, but he proffers no            confirming  statement by  those officers  and does  not state            that they  are unavailable  to provide  such statements.   He            also alleges  that he  cannot show his  continuous employment            while on  parole, because "over the years" his employers have            moved away or gone out of business.  Even if  true, this fact            would  not  show  prejudice.    Tuttle  identifies  only  one            employer, but  he gives no  details why witnesses  or records                                            ____________________            Caruso v. U.S. Board  of Parole, 570 F.2d 1150, 1154 (3d Cir.            ______    _____________________            1978).  Ordinarily,  a parole revocation hearing  need not be            held  until the warrant is  executed.  See  Moody v. Daggett,                                                   ___  _____    _______            429 U.S.  78, 89 (1976).  In  view of our disposition herein,            we need  not  address the  question  raised in  Williams  and                                                            ________            Caruso.            ______                                         -4-            from that employer  are unavailable,  and he  does not  state            when  they became  unavailable.   See  Poynor v.  U.S. Parole                                              ___  ______     ___________            Comm'n,  878 F.2d  275, 277  (9th Cir.  1989) (to  constitute            ______            prejudice, the mitigating evidence must have been lost during            the  period of  delay by  the Commission).   Finally,  Tuttle            alleges that  his girlfriend, who  died in  1990, could  have            testified  to  certain facts  supporting  Tuttle's allegation            that he committed the  robbery in order to  help her pay  her            medical costs.  Tuttle does not say that she did not have the            money for treatment.  The loss  of his girlfriend's testimony            was not prejudicial.   Tuttle mentions that there  are "other            witnesses" who  could also attest  to these "facts"  but with            whom he has  "lost touch."  He does not say  when he fell out            of contact with these witnesses  or whether he ever attempted            to reach them.                      Affirmed.                      ________                                         -5-
