Filed: Aug. 22, 2007
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 8-22-2007 Romano v. US Parole Comm Precedential or Non-Precedential: Non-Precedential Docket No. 06-4120 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Romano v. US Parole Comm" (2007). 2007 Decisions. Paper 554. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/554 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 2007 Decisions States Court of Appeals for the Third Circuit 8-22-2007 Romano v. US Parole Comm Precedential or Non-Precedential: Non-Precedential Docket No. 06-4120 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007 Recommended Citation "Romano v. US Parole Comm" (2007). 2007 Decisions. Paper 554. http://digitalcommons.law.villanova.edu/thirdcircuit_2007/554 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-22-2007
Romano v. US Parole Comm
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4120
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Romano v. US Parole Comm" (2007). 2007 Decisions. Paper 554.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/554
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4120
________________
MATTEO ROMANO,
Appellant
vs.
U.S. PAROLE COMMISSION
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 06-cv-00933)
District Judge: Honorable William W. Caldwell
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
August 17, 2007
BEFORE: FISHER, ALDISERT and WEIS, CIRCUIT JUDGES
Filed: August 22, 2007
_______________________
OPINION
_______________________
PER CURIAM.
Matteo Romano appeals from the denial of his pro se habeas petition by the
United States District Court for the Middle District of Pennsylvania. For the reasons that
follow, we will affirm the district court’s order.
1
I.
This case arises from Romano’s challenge of the district court’s denial of
his habeas petition brought under 28 U.S.C. § 2241. The facts of the case are undisputed.
On September 14, 1982, the United States District Court for the Eastern District of New
York sentenced Romano to a ten-year prison term for violating narcotics laws. Romano
was paroled on June 25, 1986, and was to remain on parole until June 25, 1992. At some
point in 1988, Romano was arrested by federal authorities on new criminal charges. On
May 7, 1991, in view of the pending federal charges against him, Romano waived his
right to a hearing on the issue of early termination of his parole, under 18 U.S.C. § 4211,
and agreed to continued parole supervision. On June 15, 1992, the Commission issued a
parole violation warrant charging Romano with violating the conditions of his continuing
parole based on the 1988 arrest. The warrant was sent to the United States Marshal who
was instructed by the United States Parole Commission (“Commission”) to hold it in
abeyance while Romano was awaiting trial and/or sentencing on the new charges. On
April 7, 1995, the United States District Court for the Southern District of New York
sentenced Romano to 188 months incarceration for racketeering and racketeering
conspiracy. On July 28, 1995, the Commission supplemented its parole violation warrant
by adding information concerning this conviction. In a letter on August 2, 1995, the
Commission requested that the warden of Romano’s institution place the warrant as a
detainer.
Romano filed the instant petition on May 5, 2006, and the district court
2
denied it on September 5, 2006. Romano timely appealed.1 He filed his appellate brief
on November 13, 2006, while still incarcerated at the United States Penitentiary at
Allenwood.2
II.
We will affirm the denial of Romano’s § 2241 petition for substantially the
same reasons as are set forth in the district court’s order. Romano first argues, without
merit, that the parole violator warrant was untimely issued under both 18 U.S.C. §
4213(b) and 28 C.F.R. § 2.44(b). “Any summons or warrant issued . . . shall be issued by
the Commission as soon as practicable after discovery of the alleged violation, except
when delay is deemed necessary.” 18 U.S.C. § 4213(b).3 Under 28 C.F.R. § 2.44(b),
“[i]n the case of any parolee charged with a criminal offense and awaiting disposition of
1
We have jurisdiction pursuant to 28 U.S.C. § 1291. In reviewing a
federal habeas judgment, we exercise plenary review over a district court’s legal
conclusions and apply a clearly erroneous standard to its findings of fact. See Cradle v.
U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002). We may affirm on any grounds
supported by the record. See Nicini v. Morra,
212 F.3d 798, 805 (3d Cir. 2000) (en
banc).
2
Romano’s projected release date from his sentence was June 5, 2006. In
the report and recommendation, issued July 5, 2006, the magistrate judge noted that the
warrant under detainer was presumably executed on or about Romano’s projected release
date. In its appellate brief, the Commission noted that “[a]fter Roman’s habeas petition
was denied, the Government was advised that Romano was transferred from Bureau of
Prisons to United States and Customs Enforcement’s custody. Romano remains subject
to parole supervision until June 2010.”
3
The repeal of 18 U.S.C. § 4213(c)(3) has no effect this case. See United
States Parole Commission Extension and Sentencing Commission Authority Act of 2005,
Pub. L. No. 109-76, § 2, 119 Stat. 2035 (2005).
3
the charge, issuance of a summons or warrant may be withheld, a warrant may be issued
and held in abeyance, or a warrant may be issued and a detainer may be placed.” The
parole violator warrant here was timely issued ten days prior to the expiration of the
parole period for Romano’s 1982 narcotics conviction and properly held in abeyance
pending resolution of his later offenses.4 See Franklin v. Fenton, 642 F.2d 760, 763 (3d
Cir. 1980). Further, after Romano’s conviction, the warrant was properly lodged as a
detainer while Romano completed his sentence. See 28 C.F.R. § 2.44(b).
Romano next contends, also without merit, that the 1995 warrant
supplement was: (1) untimely because it was not executed until after the expiration of his
maximum term for his 1982 criminal conviction; and (2) improper because its content
exceeded the bounds of the parole violator warrant. “[A] parole violation warrant may be
validly executed after the expiration of the violator’s original jail term as long as it has
been issued within that term.” Cronn v. Buffington, 150 F.3d 538, 543 (5th Cir. 1998)
(citing
Franklin, 642 F.2d at 764); see also Thigpen v. U.S. Parole Comm’n,
707 F.2d
973, 977 (7th Cir. 1983). The issuance of the parole violator warrant in 1992 served to
toll the expiration of Romano’s original sentence. See 28 C.F.R. § 2.44(d) (“The issuance
of a warrant under this section operates to bar the expiration of the parolee’s sentence”
and “maintains the Commission’s jurisdiction to retake the parolee either before or after
4
As noted, Romano waived his right to a five-year termination hearing,
under 28 C.F.R. § 2.43, and agreed to continued parole supervision until his parole
termination date of June 25, 1992.
4
the normal expiration date of the sentence and to reach a final decision as to revocation of
parole and forfeiture of time pursuant to § 2.52(c).”). Further, the substance of the
supplement was proper as it merely recorded Romano’s ultimate conviction on the
charges previously set forth in his parole violator warrant. See D’Amato v. U.S. Parole
Comm’n, 837 F.2d 72, 77 (2d Cir. 1988).
Lastly, Romano unsuccessfully claims that the Commission: (1)
unreasonably failed to execute the warrant by holding a revocation hearing; and (2) failed
to give him adequate notice when it lodged the warrant as a detainer. First, at the time
Romano lodged this petition no revocation hearing was yet necessary because the parole
violator warrant had not yet been executed.5 Second, we agree with the district court that
it is clear from the record that Romano was given notice of the warrant lodged as a
detainer against him.
Concerning any remaining claims brought forth in Romano’s appellate
brief, we note that issues not litigated in the trial court are generally not appropriate for
appellate consideration. See Del. Nation v. Pennsylvania, 446 F.3d 410, 416 (3d Cir.
2006). In sum, for the foregoing reasons, we will affirm the denial of Romano’s § 2241
petition.
5
Due process, however, requires that a revocation hearing be held when a
parole violator warrant has been executed. See Moody v. Daggett, 429 U.S. 78, 87-88
(1976).
5
