USCA1 Opinion
November 20, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 95-1103
DALE TUTTLE,
Petitioner, Appellant,
v.
U.S. PAROLE COMMISSION, ET AL.,
Respondents, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
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Before
Cyr, Boudin and Lynch,
Circuit Judges.
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Dale Tuttle on brief pro se.
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Donald K. Stern, United States Attorney, and David S. Mackey,
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Assistant United States Attorney, on brief for appellee.
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Per Curiam. Pro se appellant Dale Tuttle, who is
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imprisoned in Massachusetts on an armed robbery conviction,
appeals from the district court's dismissal of his habeas
petition. We affirm.
Tuttle committed the robbery for which he is
presently confined while on federal parole. Accordingly, the
United States Parole Commission issued a warrant for his
arrest, but placed it as a detainer against him in
Massachusetts. In his habeas petition, Tuttle sought removal
of the detainer, alleging that the Commission had not held a
parole revocation hearing or conducted timely dispositional
review of the detainer. Both parties agree that, in order to
obtain habeas relief, Tuttle must show that the Commission's
alleged delay has prejudiced him.
Tuttle argues that he has been prejudiced because
mitigating evidence that might have induced the Commission to
permit his continued release on parole despite the parole
violation has been lost during the period of delay. For
purposes of this opinion, we assume, but do not decide, that
the loss of mitigating evidence relevant to a parole
revocation hearing or dispositional review would constitute
prejudice.1 See United States v. Williams, 558 F.2d 224,
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1. A few courts have also suggested that due process rights
may be implicated if delay in executing a warrant lodged as a
detainer might result in the loss of mitigating evidence
relevant to the decision to revoke parole. See United States
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v. Williams, 558 F.2d 224, 227 (5th Cir. 1977); U.S. ex rel.
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227 (5th Cir. 1977) ("even if [a parolee] admits the [parole]
violation, he may be prejudiced if delay has impaired his
ability to present evidence of mitigating circumstances that
might affect the decision to incarcerate him"). But, because
Tuttle's claims of prejudice are conclusory in critical
respects or otherwise unpersuasive, habeas relief was not
warranted, nor was an evidentiary hearing. See McDonald v.
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New Mexico Parole Board, 955 F.2d 631, 634 (10th Cir. 1991)
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(dismissal of habeas petition asserting delay in executing a
warrant was justified in part because petitioner's
allegations of prejudice were conclusory), cert. denied, 504
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U.S. 920 (1992).
Tuttle claims that his probation officers no longer
remember his good conduct while on parole, but he proffers no
confirming statement by those officers and does not state
that they are unavailable to provide such statements. He
also alleges that he cannot show his continuous employment
while on parole, because "over the years" his employers have
moved away or gone out of business. Even if true, this fact
would not show prejudice. Tuttle identifies only one
employer, but he gives no details why witnesses or records
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Caruso v. U.S. Board of Parole, 570 F.2d 1150, 1154 (3d Cir.
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1978). Ordinarily, a parole revocation hearing need not be
held until the warrant is executed. See Moody v. Daggett,
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429 U.S. 78, 89 (1976). In view of our disposition herein,
we need not address the question raised in Williams and
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Caruso.
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from that employer are unavailable, and he does not state
when they became unavailable. See Poynor v. U.S. Parole
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Comm'n, 878 F.2d 275, 277 (9th Cir. 1989) (to constitute
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prejudice, the mitigating evidence must have been lost during
the period of delay by the Commission). Finally, Tuttle
alleges that his girlfriend, who died in 1990, could have
testified to certain facts supporting Tuttle's allegation
that he committed the robbery in order to help her pay her
medical costs. Tuttle does not say that she did not have the
money for treatment. The loss of his girlfriend's testimony
was not prejudicial. Tuttle mentions that there are "other
witnesses" who could also attest to these "facts" but with
whom he has "lost touch." He does not say when he fell out
of contact with these witnesses or whether he ever attempted
to reach them.
Affirmed.
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