United States v. Johnson

¶5LAY, Circuit Judge.

¶6Melton Clarence Johnson appeals a probation revocation order issued by the United States District Court for the Eastern District of Missouri, the Honorable James H. Meredith, presiding. On appeal petitioner asserts that he was denied due process by reason of a four year delay in the execution of the probation violator’s warrant.1 We affirm the order of the district court.

¶7Following a plea of guilty to a charge of interstate transportation of a forged instrument entered on June 5, 1970, the federal district court placed Johnson on probation for a period of three years. On November 14, 1972, Arizona authorities arrested Johnson and charged him with a felony. He pled guilty to a charge of manslaughter and was subsequently incarcerated in the Arizona State Penitentiary. As a result of the *364Arizona arrest, the district court for the Eastern District of Missouri issued a probation violator’s warrant for Johnson’s arrest. The unexecuted warrant was lodged as a detainer with the State of Arizona.

¶8The Arizona officials released Johnson to federal custody on September 15, 1976. On September 16, 1976, the district court for the Eastern District of Missouri held a preliminary hearing on his probation revocation. After adjudging him competent, the court revoked Johnson’s probation at a final hearing held on January 6,1977. The court then sentenced Johnson to eight years imprisonment to be served concurrently with his Arizona sentence.

¶9Petitioner asserts that the failure to hold an early hearing on his probation revocation deprived him of due process. The Supreme Court in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976), held that an immediate revocation hearing need not be provided on a parole violator’s warrant where the parolee was incarcerated on a subsequent conviction by the same sovereign. Although controlling in cases in which parole or probation revocation de-tainers have been issued from the same jurisdiction within which the prisoner is incarcerated, Moody left open the issue of whether a showing of prejudice in several discrete categories would be sufficient to require a revocation hearing at an early date.2See id. at 86-89, 97 S.Ct. 274.

¶10In the present case a sovereign other than the State of Arizona issued the warrant. Johnson thus contends that he was prejudiced in that the failure to hold the federal hearing deprived him of the opportunity to serve a concurring sentence with the state charge. The federal district court did in effect assign a retroactive concurrent sentence to Johnson. However, as has been held on numerous occasions,3 a federal court’s order directing that a federal sentence be served concurrently with an existing state sentence is surplusage since Congress has given the Attorney General of the United States the exclusive authority to designate the place of confinement for the service of a federal sentence.4 This fact does not inure to petitioner’s benefit. Under these circumstances, assuming petitioner had been given an earlier probation hearing and revocation, the federal district court would have been empowered to do no more than what it has already done; that is, make a recommendation as to the federal sentence being concurrent with petitioner’s state sentence. Thus, no prejudice has been shown to sustain petitioner’s contention.

¶11Petitioner does not allege a prejudicial effect on his opportunity for parole on the Arizona sentence by reason of the federal detainer. Cf. Reddin v. Gray, 427 F.Supp. 386 (E.D.Wis.1977). In denying petitioner’s claim we make clear that we leave this issue for another day.5

¶12*365We conclude that due process did not require an early hearing in this case: Johnson was not prejudiced in his opportunity to serve concurrent sentences, and the issue of the prejudicial effect of a detainer on petitioner’s opportunity for parole is not before the court. The trial court’s decision is therefore affirmed.