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September 19, 1986

UNITED STATES ATTORNEY GENERAL, UNITED STATES MARSHALL, Warden Stancari, Westchester County Department of Corrections, Office of the Westchester County District Attorney, Respondents

The opinion of the court was delivered by: KRAM


Petitioner Christopher McMillian petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner argues that a federal parole violation warrant lodged as a detainer against him by the United States Parole Commission prior to his conviction under state law violated his right to due process protected by the Fourteenth Amendment, and should be vacated. *fn1" Petitioner seeks relief on two grounds. First, he claims that his guilty plea was vacated before the end of his federal probation period, thus nullifying the underlying basis for the warrant. He argues that his subsequent reeentry of that same plea occurred after the termination of the federal probation period, providing no ground for the issuance of a warrant. Second, McMillan claims that the detainer was improperly lodged before his actual conviction.

 For the reasons stated below, the Court denies petitioner's writ of habeas corpus.


 Petitioner was convicted of robbery by the Federal District Court for the District of Columbia and sentenced, in November, 1969, to twelve years in prison. That sentence was suspended and he was placed on probation for five years.

 On May 11, 1972, petitioner was convicted of armed robbery in state court. His federal probation was revoked and he was ordered to serve his prior suspended federal sentence concurrently with his state sentence. He was paroled from his state sentence and continued to serve the federal sentence. On November 27, 1978, petitioner was released on parole from the federal sentence. His federal parole supervision was scheduled to terminate on May 10, 1984.

 On September 24, 1982, petitioner was arrested and charged with armed robbery in New York. The United States Parole Commission was advised of his arrest, but deferred issuing a warrant pending the resolution of the charges against him and would be sentenced on March 23, 1984. After reviewing the police report and the indictment against McMillian, the Parole Commission issued a parole violation warrant on April 5, 1984. The warrant was lodged as a detainer against petitioner, who was then in state custody.

 On April 25, 1984, McMillian's guilty plea was vacated. Sixteen days later, on the day after his federal parole supervision was scheduled to end, he again pled guilty to the same charges contained in his original plea. At that time, May 11, 1984, the parole Commission was informed that petitioner had vacated and reentered his guilty plea.

 The parole Commission subsequently prepared a supplement to its original warrant application, noting the vacation and reentry of the plea. The status of the detainer was not altered throughout this period. petitioner was sentenced in state court on June 8, 1984 to a term of from nine to eighteen years imprisonment. The federal parole violation warrant remains lodged against petitioner.


 Petitioner contends that, because he vacated his original guilty plea during his probation period and reentered it after his probation period had expired, the Parole Commission lacked grounds to issue a parole violation warrant. *fn2" He argues that he was not in violation of his parole because his final guilty plea was entered after his probation period had expired. This claim is without merit. The issuance of a warrant when a prisoner is "alleged to have violated the conditions of his release, and satisfactory evidence thereof is presented" is authorized by 28 C.F.R. § 2.44(a) (2).

 The Parole Commission has discretion in determining the conditions under which it may issue a warrant. See Robin v. Thomas, 555 F. Supp. 849 (S.D.N.Y. 1983). In petitioner's case, the warrant was issued based on the police report and his indictment for armed robbery. This arrest and indictment clearly occurred while petitioner remained on probation and clearly violated the terms of his parole. The warrant was therefore validly issued.

 Petitioner also argues that the parole violation warrant should not have been lodged as a detainer until after petitioner's conviction. It is true that neither 18 U.S.C. § 4214(b) (1) nor 28 C.F.R. § 2.47(a), which govern detainers, authorizes the Parole Commission to lodge a detainer warrant prior to conviction. In Heath v. United States Parole Commission, 788 F.2d 85 (2d Cir. 1986), the court acknowledged the lack of statutory support for lodging a detainer before conviction. The Court held, however, that a preconviction detainer did not automatically violate the petitioner's right to due process. In Health, a warrant had been lodged as a detainer against the petition on the basis of his arrest alone. The Court found that any defect resulting from lodging a detainer before conviction could be cured by conducting probable cause and parole revocation hearings. The parole revocation hearing should be held either contemporaneous to, or within sixty days after, the probable cause hearing.

 The effect of the warrant being lodged as a detainer prior to McMillian's conviction was to entitle him to a probable cause hearing, followed within sixty days by a parole revocation hearing. The ...

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