* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 11 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JERRY L. GRIST,

Petitioner-Appellant,

v. U.S. PAROLE COMMISSION,

Respondent-Appellee. No. 00-6255 (D.C. No. 99-CV-1821-C) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. In this habeas action brought pursuant to 28 U.S.C. § 2241, petitioner appeals the district court’s denial of relief. Pet itioner was convicted of federal-2-

crimes in the Eastern District of Oklahoma and was sentenced to imprisonment for ten years. After serving five years, he was re leased on parole. While on parole, he was charged with another federal crime and arrested. Petitioner was detained on the second criminal charges, and on the day of that detention hearing, the Parole Commission issued a parole violator warr ant. Petitioner argues on appeal that the parole violator warrant was not lod ged as a detainer, but was, instead, executed. As a result, he claims that his constitutional rights were violated because he did not receive a hearing and t hat, because the warrant was executed, the full term of his first sentence (ten years) has expired and the detainer should be discharged. The district court adopted the report and recommend ation of the magistrate judge and concluded that the parole violator warrant had not been executed, but had been lodged as a detainer. Consequently, it he ld that petitioner’s due process rights were not violated, because they were not tri ggered. It also held that petitioner’s first sentence had not been served, be cause the issuance of the warrant tolled the running of the first sentence. On appeal, we review the district court’s findings of fact for clear error and its legal conclusions de novo

. Smith v. United States , 82 F.3d 964, 965 (10th Cir. 1996). Guided by these standards, we agree that pe titioner is not entitled to habeas relief. For substantially the same reasons stated in the district court’s1 Before the district court, petitioner argued that t he Parole Commission

lacked the authority to issue the warrant as a deta iner before he was actually convicted of the second charge. He did not presentthat argument on appeal. We note, however, that in addition to the magistrat e judge’s analysis on that issue, the district court could also have based its rejection of that argument on 28 C.F.R. § 2.44(b), which specifically authorizes issuing a warrant and placing a detainer while a parolee is awaiting disposition of a criminal offense charge. -3- June 28, 2000 order and the magistrate’s report andrecommendation that it adopts, we AFFIRM the district court’s denial of the habeas petition. 1 The motion for leave to proceed without prepayment of c osts or fees is granted, as is the motion to supplement the record. The mandat e shall issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge