Opinion
Case No. 02-77-TP-UNGARO-BENAGES/O'SULLIVAN.
August 23, 2005
REPORT AND RECOMMENDATION
THIS MATTER came before the Court on the defendant's Motion for Revocation Proceedings and Appointment of Counsel (DE # 8, 07/01/05). Having reviewed the defendant's motion, the court file, and the applicable law, the undersigned respectfully recommends that the defendant's Motion for Revocation Proceedings and Appointment of Counsel be GRANTED in part and DENIED in part as more fully described below.
BACKGROUND
On February 1, 2001, the defendant was sentenced in the Eastern District of Virginia to fifteen months in prison followed by two years of supervised release. The fifteen month prison term was reduced to ten months pursuant to a Fed.R. of Crim. P. Rule 35 motion. The period of supervision began on December 6, 2001. On April 29, 2002, jurisdiction of the defendant's supervision was transferred to the Southern District of Florida. On June 10, 2002, U.S. Probation filed a Petition for Warrant or Summons for Offender Under Supervision because the defendant's whereabouts had been unknown by U.S. Probation since May 23, 2002. On July 2, 2002, an arrest warrant was issued for the defendant. On January 5, 2005, U.S. Probation filed a Superseding Petition for Warrant or Summons for Offender Under Supervision. On March 15, 2004, the defendant was convicted of a subsequent federal crime. The arrest warrant issued by the Southern District of Florida was lodged as a detainer against the defendant, who was incarcerated pursuant to his subsequent conviction. On December 16, 2004, the defendant filed a Demand for Speedy Trial. On July 1, 2005, the defendant filed the instant motion (DE # 8) pursuant to Fed.R.Crim.P. 32.1 and Local S.D. Fla. R. 3.9 (c) and the government filed a response on July 27, 2005 (DE # 12).
DISCUSSION
The defendant requests that the detainer be quashed, set aside, or vacated for being lodged in violation of the law. The government asserts that the defendant is not entitled to a preliminary probable cause hearing and will not suffer any due process violation for not receiving a speedy revocation hearing.
Under Federal Rule of Criminal Procedure 32.1, a person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge and the magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred. The Supreme Court's position is consistent, stating that a probationer is entitled to "a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his [probation]." Gagnon v. Scarpelli, 411 U.S. 778, 782 (1978). The Court stated that probation revocations are analogous to parole revocations regarding guarantees of due process. Each involves the immediate loss of freedom and a prompt preliminary hearing affords the probationer due process of law. Id.; See Morrissey v. Brewer, 408 U.S. 471 (1972) (court determined that all parole revocations required a simple factual hearing to ensure due process of law).
A preliminary hearing does not need to be held if the probationer was in custody pursuant to a new charge. Thomas v. U.S., 391 F. Supp. 202, 203 (W.D. Pa. 1975). The Supreme Court held that "where a petitioner has already been convicted and incarcerated on a subsequent offense, there is no need for a preliminary hearing upon arrest for a parole violation." Moody v. Daggett, 429 U.S. 78, 86 (1976). Similarly, the required preliminary hearing under Gagnon does not apply where the probationer is incarcerated pursuant to a final conviction at the time of attempted revocation. United States v. Tucker, 524 F.2d 77, 78 (5th Cir. 1975). Specifically, "Morrissey-Gagnon protections are not triggered when the probation violator warrant is placed as a detainer at an institution where the probationer or parolee is already in custody and awaiting disposal of an intervening charge or serving a sentence for a crime committed while on supervised release." E.g. Moody, 429 U.S. 78.
In the case at bar, the defendant was in custody on the subsequent charge when the supervised release violation warrant was lodged against him as a detainer. Presently, the defendant is in custody on a separate charge and is not in custody for violating a condition of his supervised release. The defendant has suffered no immediate loss of liberty due to a violation of a condition of supervised release. He is not entitled to the protections provided by Gagnon. The undersigned recommends that the defendant's request to quash or vacate the detainer lodged against him be DENIED.
RECOMMENDATION
For the foregoing reasons, the undersigned recommends that the defendant's request to quash or vacate the detainer lodged against him be DENIED, and that the defendant's Motion for Revocation Proceedings (DE# 8, 7/1/05) be GRANTED. Pursuant to 28 U.S.C. § 636(b) (1)(B) and (C), the parties may serve and file written objections to this Report and Recommendation with the Honorable Ursula Ungaro-Benages, United States District Judge, within ten (10) days of receipt of a copy of this Report and Recommendation. See Nettles v. Wainwright, 677 F. 2d 404 (5th Cir. 1982).