United States District Court, D. Oregon
M. King United States District Judge
filed a Motion to Dismiss with Prejudice Due to Inordinate
Delay (ECF No. 31) and Motion to Quash Warrant (ECF No. 32)
on or about January 13, 2017. The Court denies his motions.
December 12, 2007, defendant was convicted in this court of
illegal reentry (8 U.S.C. § 1326(a) & (b)(2)). ECF
No. 24. Defendant was sentenced to 51 months'
imprisonment (consecutive to a 14-month sentence for
violation of supervised release imposed in United States
v. Martinez-Lopez, 3:97-cr-00383-1-KI), to be followed
by three years of supervised release. Id. On or
about February 5, 2011, defendant was released from federal
custody. Esqueda-Ceras v. United States Dist. Court for
the Dist. of Ariz., 3:13-cv-01767-KI, Pet. at 3 (ECF No.
February 14, 2013, defendant was indicted in the Superior
Court of the State of Arizona on charges of possession and
transportation of marijuana. Defendant is currently serving a
five-year state sentence in Arizona based on these charges.
See ECF Nos. 26 & 27; see also
Esqueda-Ceras, 3:13-cv-01767-KI, Pet., Ex. 1 (ECF No.
March 29, 2013, a federal petition for revocation of
supervised release was filed, based on the state conviction
and other alleged violations of the terms of his release. On
April 1, 2013, this Court issued a warrant against defendant.
See ECF No. 28. The U.S. Marshal subsequently filed
a detainer with the Arizona Department of Corrections based
upon the warrant. See Esqueda-Ceras,
3:13-cv-01767-KI, Pet., Exs. 4 & 6-7 (ECF No. 1).
Defendant remains in Arizona state custody.
Court previously denied defendant's petition for issuance
of a writ of habeas corpus ad prosequendum seeking
his return to this court for resolution of his supervised
release violation. See Esqueda-Ceras,
3:13-cv-01767-KI, Order (ECF No. 4).
seeks a hearing, pursuant to Federal Rule of Criminal
Procedure 32.1, on the federal petition for revocation of
supervised release in an attempt to force any punishment on
that violation to run concurrent with the sentence he is
currently serving in Arizona. He also moves the Court for an
order quashing the warrant.
is not entitled to the relief he seeks. Defendant's right
to a prompt hearing arises under the Due Process Clause of
the Fifth Amendment. Morrissey v. Brewer, 408 U.S.
471, 485, 488 (1972) (parolee entitled to a preliminary
hearing “as promptly as convenient after arrest”
and to a final revocation proceeding “within a
reasonable time after the parolee is taken into
custody”); Gagnon v. Scarpelli, 411 U.S. 778
(1973) (requirements for hearing are applicable to probation
revocation cases). The Morrissey requirements were
incorporated into Federal Rule of Criminal Procedure 32.1.
See Fed. R. Crim. P. 32.1 advisory committee's
notes (1979). Rule 32.1 requires an initial appearance
without “unnecessary delay, ” a
“prompt” preliminary hearing, and a revocation
hearing “within a reasonable time, ” which is
triggered when a person is “held in custody for
violating probation or supervised release.” Fed. R.
Crim. P. 32.1 (a)(1), (b)(1), & (b)(2).
however, defendant is not yet in custody for violating a
supervised release condition as he has not been released from
state custody. United States v. Santana, 526 F.3d
1257, 1260 (9th Cir. 2008) (for purposes of
assessing reasonableness of delay, the court considered the
time between the date defendant would have been released from
state custody and the date of his initial appearance on the
federal supervised release violation). Indeed, the Court may
await a defendant's release from state custody to
adjudicate the violation of defendant's supervised
release rather than writ him out of state custody. United
States v. Garrett, 253 F.3d 443, 450 (9thCir.
cites Barker v. Wingo, 407 U.S. 514 (1972), to urge
dismissal of the warrant. That case, involving the Speedy
Trial clause, has been used as an analogy to determine
reasonableness of delay in the context of revocation
proceedings. Santana, 526 F.3d at 1260-61.The Ninth
Circuit, however, recently clarified that the Sixth
Amendment's Speedy Trial clause does not apply to
proceedings to revoke supervised release. United States
v. Gavilanes-Ocaranza, 772 F.3d 624, 628 (9th
event, dismissal is not a proper remedy unless there has been
unreasonable delay and prejudice. Santana, 526 F.3d
at 1260. Since defendant has not yet been taken into custody
for violating supervised release, defendant has not