
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          February 29, 1996     [NOT FOR PUBLICATION]                            UNITES STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.    During that  period, petitioner  was            first awaiting  trial on, and then  incarcerated for, several            federal offenses.  We  agree with the district court  that no            constitutional claim has been presented.                   Petitioner is  mistaken in arguing that  he was entitled            to a revocation  hearing prior  to his  release from  federal            custody  in 1992.    Prior thereto,  as the  Magistrate-Judge            observed,  petitioner  was never  "taken  into  custody as  a            parole violator by execution  of the warrant"--the event that            triggers  the right to a prompt revocation hearing.  Moody v.                                                                 _____            Daggett, 429 U.S. 78, 89 (1976); accord, e.g.,  United States            _______                          ______  ____   _____________            v.  Chaklader, 987 F.2d 75,  77 (1st Cir.  1993) (per curiam)                _________            (noting that  the speedy revocation  hearing protection under            the  Due Process Clause is "not triggered when the warrant is            placed  as a detainer at an institution where the ... parolee            is already in custody  awaiting disposition of an intervening            charge or serving a  sentence for a crime committed  while on            [parole]") (quoting United States  v. Wickham, 618 F.2d 1307,                                _____________     _______            1309 n.3 (9th Cir. 1979)).                 Also misplaced is the  related contention that the delay            between issuance  and execution  of the  warrant here was  so                                         -2-            unreasonable  as to have resulted  in a waiver  of the parole            board's  authority  to  return  petitioner to  prison.    See                                                                      ___            generally, e.g., Bennett  v. Bogan, 66 F.3d  812, 818-19 (6th            _________  ____  _______     _____            Cir. 1995); United  States v.  Tippens, 39 F.3d  88, 90  (5th                        ______________     _______            Cir.  1994) (per  curiam); United  States v.  Hill, 719  F.2d                                       ______________     ____            1402, 1403-05 (9th  Cir. 1983);  In re Zullo,  420 Mass.  872                                             ___________            (1995).  Petitioner  insists that the warrant could have been            served  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  the federal charges were pending--            especially since state  law called  for such a  result.   See                                                                      ___            Mass. Gen. L. ch. 127,   149 (1981); see, e.g.,  In re Zullo,                                                 ___  ____   ___________            37  Mass. App. Ct. 371,  373 (1994), vacated  and remanded on                                                 ________________________            other grounds,  420 Mass. 872  (1995); Smith v.  State Parole            _____________                          _____     ____________            Board, 17 Mass. App. Ct. 145, 150 n.12 (1983).             _____                 Petitioner in  any event has failed  to demonstrate that            he was prejudiced by the delay.  No suggestion has been  made            that  deferral of  the revocation  hearing  "undermine[d] his            ability to contest the  issue of the violation or  to proffer            mitigating  evidence."   Tippens, 39  F.3d at  90.   Instead,                                     _______            petitioner  contends  only  that   he  was  deprived  of  the            opportunity   to  serve  his   federal  and  state  sentences            concurrently.  Virtually the identical argument was  rejected            in Moody, where  the Court noted  that the parole  commission               _____                                         -3-            retained  the  discretion   "to  grant,  retroactively,   the            equivalent  of  concurrent  sentences  and  to   provide  for            unconditional  or  conditional release."    429  U.S. at  87;            accord,  e.g., Tippens, 39 F.3d at 90; Chaklader, 987 F.2d at            ______   ____  _______                 _________            77;  United States v. Fisher,  895 F.2d 208,  211 (5th Cir.),                 _____________    ______            cert. denied, 495 U.S.  940 (1990).  That the board  here, in            ____________            the  end, chose not to exercise its discretion in this manner            is  without   constitutional   significance.     See,   e.g.,                                                             ___    ____            Chaklader, 987 F.2d at 77.            _________                 Affirmed.                 _________                                                      -4-
