Opinion
D.C. No. CV-96-00850-SMM
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted Oct. 7, 1999.
Appeal from the United States District Court for the District of Arizona, Stephen M. McNamee, District Judge, Presiding.
Before SNEED and PREGERSON, Circuit Judges, and CARTER, District Judge.
The Honorable David O. Carter, District Judge for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Bill Douglas Holt, a federal prisoner, appeals the district court's denial of his 28 U.S.C. § 2241 petition for a writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo, see United States v. Pirro, 104 F.3d 297, 299 (9th Cir.1997), and affirm.
While Holt was on parole on a federal criminal charge, he was arrested and charged with possession of cocaine with intent to distribute. While he was being held on this charge, the United States Parole Commission ("Commission") issued a parole violator warrant, which all parties agree the Commission intended to be filed as a detainer against Holt. After Holt was sentenced on the cocaine possession charges, the Commission held a parole revocation hearing, decided to revoke Holt's parole, and ordered that the parole violator sentence run consecutively with the criminal sentence.
Holt argues that the revocation of his parole was sufficient to execute the violator warrant and trigger the concurrent running of his criminal and violator sentences. Holt also argues that because the Commission had no authority to hold a revocation hearing without executing the warrant, the fact that the Commission held a revocation hearing demonstrates that it executed the warrant. Finally, Holt argues that the actions taken by the Commission are not explicitly authorized by the federal regulations.
In a strikingly similar case, this court concluded that a violator warrant was not executed and that a criminal and violator sentence did not run concurrently. See Berg v. United States Parole Comm'n, 735 F.2d 378, 379 (9th Cir.1984). While Berg was on parole on a federal charge, he was sentenced to seven years in prison on a state criminal charge. See id. at 378. While he was serving time on the state charge, the Commission held a revocation hearing, revoked his parole, and ordered that the forty months of his unexpired federal sentence be served after he had fulfilled his state criminal sentence. See id. The court concluded that "[a]lthough the parole violation warrant was issued in May, 1979, it was lodged ... as a detainer, and not executed until Berg was paroled by the state of Washington." Id. at 379.
The court's opinion in Berg demonstrates that neither the decision to revoke parole nor the holding of a parole revocation hearing are sufficient to execute the violator warrant. Moreover, although Berg's criminal charges were state-law charges and Holt's were federal, because the parole regulations circumscribe the Commission's options with respect to lodging or executing warrants in a similar fashion, compare 28 C.F.R. § 2.47(b) with 28 C.F.R.§ 2.47(c), the conclusion in Berg also forecloses Holt's argument that his warrant was executed because the Commission's actions were not specifically contemplated by the regulations.
Holt also contends that he was not credited for nineteen months of time spent in federal custody when calculating his parole violator term pursuant to 28 C.F.R. § 2.47(e). Initially, we note that Holt failed to raise this claim before the district court. See Morgan v. Bunnell, 24 F.3d 49, 52 (9th Cir.1994). More importantly, however, because, as we have concluded, the parole violator warrant was not executed, section 2.47(e) was not triggered, and Holt was not entitled to credit on his parole violator term. See Berg, 735 F.2d at 379. Finally, even if the warrant had been executed, Holt's argument confuses being given sentence credit that would affect when he will be eligible for reparole with being given credit that would shorten his violator sentence. See id.; Bowen v. United States Parole Comm'n, 805 F.2d 885, 888 (9th Cir.1986). Accordingly, we reject this contention. See Berg, 735 F.2d at 379; see also Bowen, 805 F .2d at 888.
AFFIRMED.