* 

### This order and judgment is not binding precedent, except under the doctrines of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 

### JUL 21 1997 

## PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHN W. PAUL,

Petitioner - Appellant, No. 96-2214

v. (D. New Mexico)
SANDRA MCFADIN, Warden; TOM UDALL, Attorney General, State of New Mexico; DONALD DORSEY, Warden,

Respondents - Appellees. (D.C. No. CIV-95-34-HB)

ORDER AND JUDGMENT *

Before ANDERSON , HENRY , and BRISCOE , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Petitioner John W. Paul filed two 28 U.S.C. § 2254 petitions for writs of habeas corpus in the United States District Court for the District of New Mexico. In petition-2-

CIV 95-0034, Paul alleged that the defendants violated his due process rights by failing to provide both preliminary and final parole revocation hearings within the time limits prescribed by New Mexico law. In petition CIV 95-0 397, Paul alleged that the defendants violated his due process rights by misca lculating his good-time credits and time served. The district court consolidated the p etitions. On September 6, 1995, the district court dismissed petition CIV 95-0397 as anabuse of writ. On August 1, 1996, the district court dismissed petition CIV 95-0034, finding that Paul had failed to demonstrate any prejudice resulting from the delays in his parole revocation hearings. Paul filed a timely notice of appeal, and the distr ict court granted a certificate of appealability. We affirm.

I. Petition CIV 95-0034 Paul is a New Mexico prisoner, serving time on sent ences dating back to the early 1970's. On June 15, 1992, Paul was paroled f or at least the third time, and placed under the supervision of Parole Officer Ronald Rome ro. In March 1993, Paul traveled to Texas to attend a Social Security hearing. He u sed a travel permit Officer Romero had earlier issued for that purpose. The permit authorized Paul to leave New Mexico on March 25, 1993, and return five days later on March 30, 1993. Shortly after Paul left for Texas, his former roommate, Ted Nance, called O fficer Romero and told him that Paul had traveled to the hearing and would return when it was completed. Nance did not know Paul’s address in Texas, but told Officer Romero that Paul’s attorney in Texas was named Kara Stein. Kara Stein called Officer Ro mero shortly thereafter and-3-

informed Officer Romero that Paul’s hearing was sch eduled for the end of March. She contacted Officer Romero on subsequent occasions to tell him that Paul’s hearing had been twice continued. Officer Romero asked Ms. Ste in to tell Paul to write or call him with his current address. Paul wrote Officer Romero in April 1993, providing a Texas address, as well as the name and phone number of his physician. Accord ing to Officer Romero, he sent Paul three monthly report forms to the address in P aul’s letter, and instructed Paul to complete and return them. Officer Romero never rec eived any response. He again contacted Kara Stein, who informed him that Paul’s hearing had been continued yet again. Officer Romero sent three more monthly repo rt forms to Paul’s Texas address, but received no response. In August 1993, Kara Stein informed Officer Romero that Paul had prevailed in his Social Security case. Officer Romero wrote Pau l once again, asking him to convey his intentions now that his case was complete, but received no reply. In October 1993, Officer Romero resigned, and wrote Paul yet anotherletter informing him that Steve Rausch was his new supervising parole officer, and asking Paul to contact Rausch. Paul never contacted Officer Romero or Officer Rausch. A warrant was issued for Paul’s arrest on January 5, 1994. Paul was arrested in Texas on March 14, 1994. He w as extradited to New Mexico on April 15, 1994. His preliminary parole r evocation hearing took place on June 10, 1994, 56 days after his return to the West ern New Mexico Correctional Facility. His final parole revocation hearing tookplace on July 26, 1994. At his-4-

hearings, Paul claimed that he had never received any letters or report forms from Officer Romero, and that he was unable to leave Tex as because he had been attending physical therapy. The Parole Hearing Board revoked Paul’s parole, finding that Paul had violated conditions of his parole by failing to report to his parole officer as instructed and by failing to consult with his parol e officer before changing his residence. The Parole Hearing Board credited Paul with time served since the date of his arrest in Texas, but denied credit for the two months between the issuance of the warrant and his arrest. On appeal, Paul renews his contention that the defe ndants violated his due process rights by failing to provide him with timel y preliminary and final parole revocation hearings. In support of his argument, P aul cites two New Mexico statutory provisions: In those instances where the state has failed to co nduct a preliminary parole revocation hearing on a parolee held for par ole violations within sixty days of arrest, the parolee shall be eligible for bail. In all cases the final parole revocation hearing shall be scheduled for hearing within sixty days of the parolee’s return to the penitentiary. N.M. Stat. Ann. § 31-11-1. Upon arrest and detention, the board shall cause th e prisoner to be promptly brought before it for a parole revocation hearing on the parole violation charged, under rules and regulations the board may adopt. N.M. Stat. Ann. § 31-21-14. Paul also cites New Me xico Correctional Department Policy No. CD-052700: “A preliminary hearing will be conducted within 21 days of1 

### Paul has not provided this court with any copy of the alleged Correctional

Department Policy. -5- his/her detention.” 1 Paul notes that his preliminary hearing did not o ccur until nearly three months after his arrest in Texas, and 56 days after his return to Western New Mexico Correctional Facility. His final hearing wa s conducted 102 days after his return. He contends that these hearings occurred o utside the statutory time periods, as well as outside the time periods required by Federa l constitutional law. The loss of liberty entailed in parole revocation r equires that parolees be accorded due process. Gagnon v. Scarpelli , 411 U.S. 778, 781 (1973); Morrissey v.
Brewer , 408 U.S. 471, 482 (1972). Among other things, du e process requires a preliminary revocation hearing “as promptly as conv enient after arrest,” and a final revocation hearing “within a reasonable time after the parolee is taken into custody.” Morrissey , 408 U.S. at 485, 488. However, delay in providin g these hearings does not, per se, constitute a violation of due process entit ling an accused parole violator to immediate release. McNeal v. United States , 553 F.2d 66, 68 (10th Cir. 1977). Instead, “to establish a legal right to habeas relief, the d elay, taking into consideration all the circumstances, must also be prejudicial.” Id. ; see also Harris v. Day , 649 F.2d 755, 761-62 (10th Cir. 1981). This is the well-establis hed rule. See Meador v. Knowles , 990 F.2d 503, 506 (9th Cir. 1993) (due process viol ation occurs only when delay is both unreasonable and prejudicial); Villarreal v. UnitedStates Parole Comm’n , 985 F.2d 835, 837 (5th Cir. 1993) (154-day delay between ar rest and final hearing did not violate due process absent a showing of prejudice); Heath v . United States Parole Comm’n , 7882 

### The record is silent as to the reasons for the delay. It appears, however, that at

least one month of the delay is attributable to extradition proceedings. -6- F.2d 85, 89 (2nd Cir. 1986) (predicating habeas rel ief upon showing of prejudice or bad faith); Sutherland v. McCall , 709 F.2d 730, 732 (D.C. Cir. 1983) (absent prejud ice, proper remedy for delay is not habeas relief, but r ather a writ of mandamus compelling compliance with statutory time periods); State v. C havez , 694 P.2d 927, 930 (N.M. Ct. App. 1985) (showing of prejudice required); State v . Sanchez , 612 P.2d 1332, 1335 (N.M. Ct. App. 1980) (same). The New Mexico statutes cited by Paul do not obviat e the need for a showing of prejudice. While the specific time periods contain ed in N.M. Stat. Ann. §§ 31-11-1 and 31-21-14 bear upon whether the delay in this case w as unreasonable, they do not entitle Paul to habeas relief absent prejudice. Villarreal , 985 F.2d at 837 (even though hearing was not held within the specific ninety-day period required by 18 U.S.C. § 4214(c), habeas relief still requires a showing of prejudice ); Sutherland , 709 F.2d at 732 (same). The district court found that Paul failed to demons trate any prejudice by the nearly three-month delay between his arrest and pre liminary hearing and the nearly four and one-half month delay between his arrest and fin al hearing. 2 We agree. Paul alleges that the delays prejudiced him in two ways. First, he asserts that in “making the determination [at the preliminary hearing] whether probable cause existed to support a finding that Paul violated his parole conditions, the hearing officer . . . relied on the testimony of Romero, whose recollection of events which occurred more than a year ago3

### Although Paul refers to Romero’s sketchy memory of events occurring “more

than a year ago,” the only memory loss relevant to his habeas claim would be that attributable to the delay between his arrest and the preliminary hearing. Thus, Paul essentially argues that Officer Romero suffered prejudicial memory loss within three months. -7- was sketchy at best.” Appellant’s Br. at 14-15. 3 Paul, however, does not list a single specific example of sketchy memory, nor does he spe cifically challenge any of the chronology recounted by Officer Romero’s recollecti on. Instead, he merely speculates that an earlier hearing would have resulted in a cl earer “chronology of events.” Id. at 16. Second, Paul notes that although he had listed Ted Nance as a witness, Nance did not appear at the preliminary hearing. Paul states : “No explanation appears in the hearing officer’s report as to why Mr. Nance did no t appear; however, the delay may have been responsible for his absence.” Id. at 15. Again, Paul merely speculates that delay caused Nance’s non-appearance. Furthermore, Paul does not explain what, if any, testimony Nance would have provided that could have altered the final outcome. In short, the delay in Paul’s preliminary and final parole revocation hearings does not entitle him to habeas relief. During the delay s, New Mexico statutory law may have entitled Paul to an order compelling a timely heari ng or bail. Under the facts of this case, however, “the extreme remedy of release” is n ot available, Barton v. Malley , 626 F.2d 151, 159 (10th Cir. 1980), and we affirm the d istrict court’s dismissal of this claim.-8- II. Petition CIV 95-0397 Petition CIV 95-0397, which the district court dism issed as an abuse of the writ, concerns alleged errors in prison record keeping. Paul received three sentences in 1970 and 1971: (1) 1 to 5 years’ imprisonment for burgl ary; (2) 10 to 50 years’ imprisonment for armed robbery; and (3) 2 to 10 years’ imprisonm ent for attempted armed robbery. In his opening brief on appeal, Paul contends: In addition to these sentences, the records of the Penitentiary of New Mexico have two additional sentences for “Robbery while armed with a deadly weapon and Burglary.” Mr. Paul provided the district court with copies of a document referring to “Cause No. CR-566 ” as the Judgment or authority for this set of offenses, when, in fact, the document is a “Commitment” or mandate from the New Mexico Court o f Appeals affirming the convictions and sentences entered in Bernalillo County No. 19906. “Cause CR-566” is not a separate judgment r epresenting convictions of separate offenses. This error led t o miscalculations in his time served and time remaining to be served, result ing in denial of Mr. Paul’s good time credits and possible denial of actual time served. Appellant’s Br. at 6 (citations omitted). The gove rnment argues that these claims should have been raised in a prior habeas petition filed by Paul in 1992. Paul contends, however, that he “had no knowledge of these phantom sentences until his arrest for an alleged parole violation on March 14, 1994.” Id. Claims raised for the first time in a second or sub sequent habeas petition may be dismissed as abusive unless the petitioner shows cause for the failure to raise the claim in an earlier habeas petition, and prejudice theref rom. Andrews v. Deland , 943 F.2d 1162, 1171 (10th Cir. 1991). The cause standard re quires the petition to show that some objective and external factor impeded efforts to raise the claim in the previous habeas petition. McCleskey v. Zant , 499 U.S. 467, 497 (1991). Where a petitioner4 

### With respect to the erroneous sentences added as a result of “Cause CR-655,”

Paul does not claim that this error was created in March of 1993, but rather that he did not know about it until March of 1993.

5

### Paul’s 1992 habeas petition was not dismissed by the district court until June 9, 1994. Paul claims that he learned of the alleged errors in prison record keeping on March 14, 1994. -9- claims that he lacked the factual basis necessary t o raise the claim in a previous petition, we consider “whether petitioner possessed , or by reasonable means could have obtained, a sufficient basis to allege a claim in t he first petition and pursue the matter through the habeas process.” Id. at 498. As the district court correctly determined, Paul ha s failed to show either cause for his failure to raise this claim in his 1992 pet ition, or prejudice resulting therefrom. First, although Paul claims that he did not learn o f the alleged errors until March 14, 1994, he does not explain why the prison records an d information containing the errors were not available to him at the time he filed his previous petition in 1992. 4 As noted, Paul’s sentences date back to the early 1970's. Si nce that time, he has had multiple contacts with the Parole Hearing Board, and presumably ample opportunity to familiarize himself with his sentence and record. Paul has failed to show that he could not, through reasonable means, discover the factual basis for his claims either before or during the pendency of his previous habeas petition

. 5 Second, with respect to prejudice, the parties agre e that Paul’s prison records have been corrected to remove any mistaken sentence s derived from the New Mexico Court of Appeals mandate titled “Cause CR-566.” Se e R. Vol. 1, Doc. 60 at ¶ 5;6

### In his reply brief on appeal, Paul alleges an entirely different error in prison record

keeping. He claims that when his parole was revoked in March of 1993, his 2 to 10 year sentence for attempted armed robbery “was added back onto [his] existing sentences.” Appellant’s Reply Br. at 4. Hence, Paul claims that “he is currently serving a sentence that terminated in 1972, and for which no revocation proceedings appear to have been conducted.” Id. This issue is waived by Paul’s failure to raise it in his opening brief. Coleman v. B-G Maintenance Management of Colorado, Inc. , 108 F.3d 1199, 1205 (10th Cir. 1997). -10- Appellee’s Br. at 13. Paul does not explain with any clarity how his good-time credit or time served has been, or is presently, affected by any previous error. Like the district court, we do not find any sufficient showing of pre judice. 6 Accordingly, we affirm the district court’s dismissal of petition CIV 95-0397 as an abuse of the writ.

III. For the foregoing reasons, we AFFIRM the orders of the district court dismissing Paul’s consolidated habeas petitions. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge