The Fifth and Tenth Circuits have held that if the Marshals Service executes the warrant contrary to the Commission's instructions, the execution of the warrant is invalid, and the Commission's duty to hold a revocation hearing is not triggered. Id. at 409; Chandler v. Barncastle, 919 F.2d 23, 26-27 (5th Cir. 1990); McConnell v. Martin, 896 F.2d 441, 445-46 (10th Cir. 1990), cert. denied, 498 U.S. 861 (1990). See also Santa v. Tippy, 14 F.3d 157, 159 (2nd Cir. 1994).

It is well established that an invalidly executed parole violation warrant does not trigger the Commission's procedural obligation to conduct a revocation hearing. See Barnard v. Henman, 89 F.3d 373, 378 (7th Cir. 1996) (holding that Marshals Services' error in executing the warrant when prisoner was transferred from jail to state prison did not constitute "release" in the context of parole violation warrants); Sinclair v. Henman, 986 F.2d 407, 409 (10th Cir. 1993) (holding that the Commission was not required to conduct the revocation hearing even if the Commission never withdrew the invalidly executed warrant); see also Turner v. U.S. Parole Comm'n, 934 F.2d 254 (10th Cir. 1991); Chandler v. Barncastle, 919 F.2d 23, 26-27 (5th Cir. 1990); McConnell, 896 F.2d at 445-446. Because the warrant was not validly executed in the first place, it did not trigger the Commission's procedural obligations to conduct a revocation hearing.

It is well established that the erroneous execution of a parole violator warrant contrary to the instructions of the Parole Commission is invalid; such a warrant can be withdrawn, placed as a detainer, and executed again at a later date. See, e.g., Barnard v. Henman, 89 F.3d 373 (7th Cir. 1996); Chandler v. Barncastle, 919 F.2d 23 (5th Cir. 1990); McConnell v. Martin, 896 F.,2d 441 (10th Cir.), cert. denied, 498 U.S. 861 (1990);United States v. Cox, 475 F.2d 836 (9th Cir. 1973). See also, Curtis v. United States, 123 Fed.Appx. 179, 2005 WL 89057 (6th Cir. March 29, 2005) (unpubl.). Petitioner has not cited, and this Court has not located, any case to the contrary.

The Court held that the Commission has the authority to have such an invalid warrant replaced as a detainer. Chandler v. Barncastle, 919 F.2d 23, 26 (5th Cir. 1990). The conflicting Circuit decisions in effect at the time of Cronn's complaint indicate that no "clearly established" legal standard existed, such that officials could determine that their conduct — the withdrawal, holding in abeyance, and re-execution of a parole violation warrant — violated Cronn's rights.

Therefore, if it did occur, execution of the Commission's warrant in 1999 as a matter of law was void and ineffective. Sinclair v. Henman, 986 F.2d 407 (10th Cir. 1993), cert. denied, 510 U.S. 842 (1993) (parole violation warrant executed by mistake was not validly executed, so requirement that parole violator hearing be held within 60 days was eliminated); Chandler v. Barncastle, 919 F.2d 23 (5th Cir. 1990) (execution of parole violator warrant contrary to Commission's instructions is not valid); McConnell v. Martin, 896 F.2d 441 (10th Cir. 1990), cert. denied, 498 U.S. 861 (1990) (parole violator warrant executed contrary to Commission's specific instructions was not valid and could be withdrawn). Under such circumstances, Gates had no entitlement to an immediate revocation hearing, Moody v. Daggett, 429 U.S. 78, 89 (1976) (parolee serving additional term of imprisonment for offense committed while on parole is entitled to revocation hearing only after he completes service of the new term and is taken into custody on parole violator warrant), and he therefore can show none of the criteria necessary for a writ of mandamus to issue. Cf. Proffitt, 758 F. Supp. at 348.

It is well established that the erroneous execution of a parole violator warrant contrary to the instructions of the Parole Commission is invalid: such a warrant can be withdrawn, placed as a detainer, and executed again at a later date. See, e.g., Barnard v. Henman, 89 F.3d 373 (7th Cir. 1996); Chandler v.Barncastle, 919 F.2d 23 (5th Cir. 1990); McConnell v. Martin, 896 F.,2d 441 (10th Cir.), cert. denied, 498 U.S. 861 (1990);United States v. Cox, 475 F.2d 836 (9th Cir. 1973). See also, Curtis v. United States, 123 Fed.Appx. 179, 2005 WL 89057 (6th Cir. March 29, 2005) (unpubl.). Petitioner has not cited, and this Court has not located, any case to the contrary.

As the Seventh Circuit noted in Barnard, "if a warrant was invalidly executed, the Commission may subsequently utilize the same warrant as a detainer." See id. at n. 8 (citing Chandler v. Barncastle, 919 F.2d 23, 26-27 (5th Cir. 1990). The Commission "can issue a warrant and place it as a detainer against [a] prisoner, waiting to execute it until [a] prisoner has completed service of his sentence for the crime that he committed on parole."

Also putting emphasis on the distinction between "issuance" and "execution" of a parole violator warrant are the cases dealing with the consequences of an unintended execution of such a warrant. In Chandler v. Barncastle, 919 F.2d 23 (5th Cir. 1990), the warrant was executed, i.e. the parolee was taken into custody, in violation of instructions accompanying the warrant. When delivered to the United States Marshal for handling, the warrant was accompanied by instructions that specifically directed the Marshal not to execute the warrant if the parolee was already in state custody.