* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The 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. Petitioner was convicted of federal
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crimes in the Eastern District of Oklahoma and was sentenced to imprisonment

for ten years. After serving five years, he was released 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 warrant. Petitioner argues on

appeal that the parole violator warrant was not lodged 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 that, 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 recommendation of the magistrate

judge and concluded that the parole violator warrant had not been executed, but

had been lodged as a detainer. Consequently, it held that petitioner’s due process

rights were not violated, because they were not triggered. It also held that

petitioner’s first sentence had not been served, because 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 petitioner is not entitled to

habeas relief. For substantially the same reasons stated in the district court’s
1 Before the district court, petitioner argued that the Parole Commission

lacked the authority to issue the warrant as a detainer before he was actually

convicted of the second charge. He did not present that argument on appeal. 

We note, however, that in addition to the magistrate 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.

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June 28, 2000 order and the magistrate’s report and recommendation that it

adopts, we AFFIRM the district court’s denial of the habeas petition. 1 The

motion for leave to proceed without prepayment of costs or fees is granted, as

is the motion to supplement the record. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio

Circuit Judge