NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 

23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, 

as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties 

and, therefore, may not fully address the facts of the case or the panel's 

decisional rationale. Moreover, such decisions are not circulated to the entire 

court and, therefore, represent only the views of the panel that decided the case. 

A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 

2008, may be cited for its persuasive value but, because of the limitations noted 

above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 

n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-226

DARRIEN GOETZENDANNER,1 petitioner.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The petitioner appeals from the denial by a Superior Court

judge of his petition for a writ of habeas corpus under G. L. 

c. 248, § 1, and from the denial of his motion for relief from 

that order pursuant to Mass. R. Civ. P. 60 (b), 365 Mass. 828 

(1974) (rule 60 [b]). The petitioner contends that he is

entitled to immediate release from serving the balance of his 

sentences on his 1983 convictions because, following convictions 

of intervening offenses he committed while out on parole in 

1993, this court's belated modification of his sentencing scheme 

in Goetzendanner v. Superintendent, Mass. Correctional Inst., 

Norfolk, 71 Mass. App. Ct. 533, 541 (2008) (Goetzendanner I), 

violated double jeopardy principles and clearly established 

Federal law. The petitioner also argues that the Commonwealth's 

1 Also known as Jahrab S. Allah. The petitioner reportedly 

legally changed his name around 2001. As is our custom, we use 

the name that appears on the complaint.
2

ten-year delay in implementing the change in his sentencing

structure waived its right to enforce the remainder of his 1983

sentences, and the failure to schedule a timely final parole 

revocation hearing for those sentences violated his due process 

rights. We affirm.

Background. We summarize the procedural history of this 

case that led to our decision in Goetzendanner I, and to the 

present issues on appeal.

In February 1983, the petitioner was convicted of, among 

other crimes, armed assault with intent to rob and murder. He 

was ordered to serve concurrent sentences (reformatory 

sentences),2 the longest of which was twenty years.

Eight years later, in June 1991, the petitioner was 

released on parole from these sentences. The petitioner was 

charged with new crimes while out on parole, including multiple 

counts of aggravated rape and kidnapping. In response, the 

parole board (board) provisionally revoked the petitioner's 

2 A "reformatory sentence," also known as a "Concord sentence," 

was a "sentencing option widely used by Superior Court judges in 

the 1980's," until its abolition in 1994. Commonwealth v. 

Thurston, 53 Mass. App. Ct. 548, 554-555 (2002). This type of 

sentence involved "the imposition of an apparently long sentence 

on an individual deemed capable of rehabilitation . . ., not to 

the State prison at M.C.I., Walpole (now called Cedar Junction) 

but rather to the State 'reformatory' at M.C.I., Concord, with 

parole eligibility arising after a small fraction . . . of the 

stated sentence pursuant to parole board policies and 

regulations." Id. at 555.
3

parole, and issued a parole violation warrant on March 31, 1992. 

Pending the outcome of the petitioner's new criminal charges, 

the parole violation warrant was lodged against the petitioner 

as a detainer.3

On February 5, 1993, the petitioner was convicted of

assault and battery by means of a dangerous weapon, two counts 

of aggravated rape, and kidnapping (intervening offenses),4 for 

which he received concurrent sentences, including committed 

sentences of from twenty to thirty years in prison.5 At this 

time, the petitioner had about four years left to serve on his 

reformatory sentences. See Goetzendanner I, 71 Mass. App. Ct. 

at 541. The Department of Correction (department) deemed the 

effective date of return of the parole violation warrant as 

February 5, 1993, and "treated [the petitioner] as a returned 

parole violator with new sentences to be served after completion 

of the reformatory sentences." Id. at 535. "On this basis, the 

department calculated that [the petitioner] completed his 

3 A detainer is "[a] writ authorizing a prison official to 

continue holding a prisoner in custody." Black's Law Dictionary 

543 (10th ed. 2014).

4 "Any sentence for a crime committed while the petitioner is on 

parole, that is imposed prior to service of the parole violation 

warrant, is an intervening sentence." Goetzendanner I, 71 Mass. 

App. Ct. at 534 n.3.

5 The sentencing judge ordered that the intervening sentences "be 

served from and after the exp[i]ration of all previous sentences 

which [the petitioner] has been ordered to serve." 

Goetzendanner I, 71 Mass. App. Ct. at 540.
4

reformatory sentences on February 1, 1997, and on that date 

formally discharged him [of those sentences]," and "invoked the 

intervening sentences." Id. at 535-536.

In 2003, the petitioner filed a petition for a writ of 

habeas corpus in the Superior Court. The petitioner sought 

immediate release on the grounds that he was serving illegal or 

improperly imposed sentences because the law required him to 

first complete his intervening sentences before serving the 

remainder of his reformatory sentences. See Goetzendanner I, 71 

Mass. App. Ct. at 534. A Superior Court judge denied the 

petition. Id. The petitioner appealed.

In an April 2008 decision, this court denied the 

petitioner's request for habeas corpus relief, and instead 

treated his petition as a claim for declaratory relief. 

Goetzendanner I, 71 Mass. App. Ct. at 534-535. We held that 

"the department improperly executed [the petitioner's] sentences 

when it required [the petitioner] first to serve the four years 

remaining on his reformatory sentences and, on February 1, 1997, 

discharged him of those sentences, prior to invoking his 

intervening sentences." Id. at 541. We vacated the judgment 

and remanded the matter to the Superior Court, ordering that a 

declaration enter that the petitioner "began serving his 1993 

intervening sentences on February 5, 1993, with 320 days of 

credit, and that the remaining time of his reformatory sentences 
5

will not commence until the expiration by parole or otherwise of 

his intervening sentences."6 Id. On August 8, 2008, the Norfolk 

Superior Court issued a modified judgment in accordance with 

this court's directive.

Over ten years later, in November 2018, the department 

reportedly notified the board that the petitioner would complete 

his intervening sentences on February 28, 2019. Soon 

thereafter, in January 2019, the board amended the date of the 

petitioner's parole violation warrant for his reformatory 

sentences in accordance with the 2008 modified judgment. The 

warrant was then lodged as a detainer behind the petitioner's 

intervening sentences. When the petitioner's intervening 

sentences expired, on February 28, 2019, the service of the 

parole warrant was deemed effective, and the petitioner remained 

in custody.

Soon thereafter, the board scheduled a final parole 

revocation hearing for the petitioner's reformatory sentences,

on April 5, 2019.7 The hearing was postponed at the petitioner's 

6 The petitioner sought further appellate review, which the 

Supreme Judicial Court denied. Goetzendanner v. Superintendent, 

Mass. Correctional Inst., Norfolk, 451 Mass. 1107 (2008).

7 "The purpose of the final revocation hearing is to determine, 

whether the parolee violated one or more conditions of parole; 

if a violation occurred, whether parole status should be finally 

revoked; and, if parole status is revoked, whether release to 

the community is appropriate." 120 Code Mass. Regs. § 303.16(1) 

(2017).
6

request.8 Later that month, on April 19, the petitioner filed a 

second petition for a writ of habeas corpus in the Superior 

Court seeking his immediate release. The petition raised four 

grounds for relief: (1) the board's failure to schedule a 

timely final parole revocation hearing on the petitioner's 

reformatory sentences in 2008, at the same time of his initial 

parole release hearing on the intervening sentences, violated 

due process; (2) the Commonwealth waived its right to execute 

the parole violation warrant and impose the balance of the 

petitioner's reformatory sentences when it failed to implement 

the modification in his sentencing scheme for over ten years; 

and (3) this court's 2008 decision in Goetzendanner I, 

restructuring the petitioner's sentencing scheme, violated

double jeopardy and clearly established Federal law. A Superior 

Court judge denied the petition. The petitioner appealed.

In March 2021, the petitioner filed a "motion for relief 

from order" in the Superior Court, arguing that relief was 

warranted under rule 60 (b) because the judge that ruled on his 

habeas petition erred in finding that his double jeopardy 

argument lacked merit because the length of his sentences had 

not increased due to the change in his sentencing structure. 

8 The petitioner's final parole revocation hearing was held in

May 2020. The petitioner was later released from custody on 

parole supervision on November 16, 2020.
7

According to the petitioner, the duration of his reformatory 

sentences increased by nearly two years because of this court's 

2008 decision. The same Superior Court judge also denied this

motion, and the petitioner again appealed. The petitioner's 

appeals from the order denying his April 2019 writ of habeas 

corpus petition and the order denying his March 2021 motion for 

rule 60 (b) relief have been consolidated here.

Discussion. "A habeas corpus petitioner must establish 

that (1) there has been a violation of the State or Federal 

Constitution or laws; (2) the violation has deprived him of his 

personal liberty; and (3) he is entitled to immediate release 

from the custody of the respondent." Goetzendanner I, 71 Mass. 

App. Ct. at 538. The petitioner asserts that he is entitled to

immediate release from serving the balance of his reformatory 

sentences on the same grounds set forth in his motions in the 

Superior Court, listed supra. We address each in turn.

1. Due Process. a. Final parole revocation hearing. The 

petitioner first argues that he was deprived of a

constitutionally protected liberty interest secured under the 

due process clause of the Fourteen Amendment when the board 

failed to schedule a timely final parole revocation hearing,9 as 

required by applicable regulations.

9 "The Fourteenth Amendment [to the United States Constitution] 

prohibits any State from depriving a person of life, liberty, or 
8

The parties agree that under 120 Code Mass. Regs. 

§ 303.18(2) (1997),10 the petitioner was entitled to a final 

parole revocation hearing on his reformatory sentences in 2008,11

at the same time of his initial parole release hearing for his 

intervening sentences. See Royce v. Commissioner of Correction, 

390 Mass. 425, 427 (1983) ("[A]gency regulations have the 'force 

of law'" [citation omitted]). The petitioner alleges that the 

ten-year delay in holding his final parole revocation hearing 

denied him the protections set forth in Morrissey v. Brewer, 408 

U.S. 471, 488-489 (1972), including the right to a revocation 

hearing "within a reasonable time after [being] taken into 

property without due process of law" (citation omitted). Butler

v. Turco, 93 Mass. App. Ct. 80, 83 (2018). "A liberty interest 

may arise from the Constitution itself, or it may arise from an 

expectation or interest created by State laws or regulations." 

Id., and cases cited. Generally, in the prison context, liberty 

interests are limited to "freedom from restraint which . . . 

imposes atypical and significant hardship . . . in relation to 

the ordinary incidents of prison life." Id., quoting Sandin v. 

Conner, 515 U.S. 472, 484 (1995).

10 "Where the parolee is serving an intervening sentence, the 

Massachusetts Parole Board schedules the final parole revocation 

hearing at the same time as the initial parole release hearing 

for that intervening sentence unless the Board Members choose, 

by office vote, to conduct a revocation hearing at an earlier 

time." 120 Code Mass. Regs. § 303.18(2) (1997). The current 

regulations employ essentially the same language, with one 

material difference being the use of the words "shall schedule." 

See 120 Code Mass. Regs. § 303.17(2) (2017).

11 The petitioner was offered a final parole revocation hearing 

on his reformatory sentences in April 1994, pursuant to the 

original parole violation warrant, which this court later found 

to be ineffective. See Goetzendanner I, 71 Mass. App. Ct. at 

540. The petitioner refused to appear for the hearing, and the 

board denied parole.
9

custody." Id. at 488. The due process procedures discussed in 

Morrissey, supra at 489, however, concerned the accuracy of the 

factual determination of a violation.12 Here, the gravamen of 

the petitioner's claim is that, had his final parole revocation 

hearing been timely scheduled (or at least held sometime before

the expiration of his intervening sentences), the board may have 

elected to terminate his reformatory sentences or have them run 

concurrent with his intervening sentences. Thus, the issue is 

not that the petitioner was denied due process in defending 

against the revocation of his parole,13 see United States v. 

Throneburg, 87 F.3d 851, 853 (6th Cir. 1996) ("due process 

concerns about delay come into play only when the delay has 

prejudiced the defendant's ability to contest the validity of 

the revocation"), but rather, that he was denied opportunities 

12 Those minimum due process procedures included "(a) written 

notice of the claimed violations of parole; (b) disclosure to 

the parolee of evidence against him; (c) opportunity to be heard 

in person and to present witnesses and documentary evidence; (d) 

the right to confront and cross-examine adverse witnesses . . .; 

(e) a 'neutral and detached' hearing body such as a traditional 

parole board, members of which need not be judicial officers or 

lawyers; and (f) a written statement by the factfinders as to 

the evidence relied on and reasons for revoking parole." 

Morrissey, 408 U.S. at 489.

13 The basis of the revocation of the petitioner's parole on his 

reformatory sentences was his convictions of the intervening 

offenses, which included aggravated rape and kidnapping. As 

argued by the board, given these new criminal convictions, the 

revocation of the petitioner's parole status was all but 

certain. See 120 Code Mass. Regs. § 303.22(4) (2017) (parole 

revocation determination based on preponderance of evidence 

standard).
10

to request that the board terminate his reformatory sentences or 

permit him to serve his sentences concurrently.

We have previously suggested that, "[u]pon a liberal 

reading" of the Supreme Court's decision in Moody v. Daggett, 

429 U.S. 78 (1976),14 an individual might, "on particular facts," 

be able to establish a due process violation from a delayed 

parole revocation determination based on prejudice arising from 

a missed opportunity to secure parole for an intervening 

sentence. Smith v. State Parole Bd., 17 Mass. App. Ct. 145, 

151-152 (1983). However, that is not this case.

While we do not condone the significant delay in holding 

the petitioner's final revocation hearing, in the circumstances

presented, see Emma v. Massachusetts Parole Bd., 488 Mass. 449, 

457 (2021) ("due process is flexible and calls for such 

procedural protections as the particular situation demands"

[citation omitted]), we "conclude that it did not 'amount to 

legal prejudice that permits a conclusion that a due process 

violation . . . occurred" (citation omitted). Doucette v. 

Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 538 (2014). 

The petitioner's assertion of prejudice rests primarily on

14 "[T]here is no constitutional right to a prompt parole 

revocation hearing when the parolee is serving an independent 

intervening sentence in the same jurisdiction." Smith v. State 

Parole Bd., 17 Mass. App. Ct. 145, 151 (1983), quoting Hopper v. 

United States Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983).
11

speculation over decisions that the board may have made --

decisions that, on this record, were not likely to come to 

fruition.15 The petitioner had no right to serve his sentences

concurrently. See Commonwealth v. Collins, 31 Mass. App. Ct. 

679, 684 (1991). Nor did he have a liberty interest in a future 

grant of parole. See Doe v. Massachusetts Parole Bd., 82 Mass. 

App. Ct. 851, 858 (2012). Even if we were to conclude that the 

petitioner's due process rights were infringed due to the

prolonged delay of his final revocation hearing, the petitioner 

has not cited any authority to support his claim that he is 

entitled to immediate release from serving the balance of his 

reformatory sentences in these circumstances.16 See Stewart, 

15 The board revoked the petitioner's parole on at least three 

separate occasions between 1985 and 1991. See Goetzendanner I, 

71 Mass. App. Ct. at 535 n.5. Given the severity of the 

petitioner's intervening offenses, which served as the basis for 

the fourth revocation of his parole, it is unlikely that the 

board would have been inclined to grant his request to serve his 

reformatory sentences concurrently with his intervening 

sentences, particularly where the sentencing judge had specified 

that the intervening sentences (including twenty to thirty 

years) be served consecutive to any other sentence the defendant 

had been ordered to serve. The petitioner's claim of prejudice 

is further belied by the fact that he refused to attend his 

initial parole release hearing on his intervening sentences in 

July 2008, and subsequently waived or refused to appear before 

the board for each of his annual review hearings from 2009 to 

2018.

16 Although the loss of opportunities to seek reparole and

concurrent sentences from the board is certainly evidence of 

actual, not just theoretical, prejudice, we conclude that, on 

this record, it is "not so substantial as to justify the 

[petitioner's] release" from serving the remainder of his 

sentences. Commonwealth v. Blake, 454 Mass. 267, 281 (2009) 
12

petitioner, 411 Mass. 566, 569 (1992). Accordingly, habeas 

relief is not permitted. See Sheriff of Suffolk County v. 

Pires, 438 Mass. 96, 100 (2002) (habeas relief "available only 

where granting the writ would result in the petitioner's 

immediate release from custody").

b. Waiver. Next, the petitioner asserts that the board --

or, broadly speaking, the Commonwealth -- waived its right to 

enforce his parole violation warrant and impose the balance of 

his reformatory sentences when it waited over ten years to amend 

the petitioner's parole violation warrant and implement the 

modification of his sentencing structure. Again, we disagree.

To support this claim, the petitioner first directs us to 

Zullo, petitioner, 420 Mass. 872 (1995). There, the Supreme 

Judicial Court considered whether "the belated service of a 

parole revocation warrant results in the board's loss of the 

authority to seek revocation of parole." Id. at 873. The court 

explained that the weight of authority from other jurisdictions

that have addressed the issue was:

"if the whereabouts of the parole violator was known . . . 

and an 'unreasonable' amount of time elapsed during which 

the State authorities took no action to enforce the parole 

violation, the State has waived its right to execute the 

balance of the parolee's prison sentence and the State 

courts have no 'jurisdiction' to revoke parole."

(Gants, J., concurring). See also Commonwealth v. Burhoe, 3 

Mass. App. Ct. 590, 595 (1975) (alleged loss of opportunities 

for parole and concurrent sentences because of pretrial delay 

"too speculative and insubstantial" to warrant dismissal).
13

Id. at 875.17 This principle is not applicable in the instant 

case.

Here, the petitioner's parole violation warrant was lodged 

as a detainer behind his intervening sentences. As we stated in 

Goetzendanner I, 71 Mass. App. Ct. at 540, "[a]ny purported 

service of the parole warrant [before the petitioner completed 

his intervening sentences] was ineffective." See G. L. c. 127, 

§ 149.18 Once the petitioner's intervening sentences concluded, 

the warrant was executed, and the petitioner remained in 

custody. There was thus no delay in the service or enforcement 

of the warrant. Further, absent from the record is evidence 

that the petitioner reasonably relied on any government

inaction,19 or that he suffered prejudice warranting the relief 

17 The court emphasized two relevant factors for consideration: 

"(a) the extent to which the parolee reasonably relied on the 

inaction of the enforcing authorities, and (b) the prejudice 

that the delay in the attempted enforcement may have caused to

the parolee in defending against the attempt to revoke parole or 

otherwise." Zullo, petitioner, 420 Mass. at 876. A third

consideration was the reasonableness of the delay. Id. at 877.

18 "Service of the parole violation warrant shall be made 

effective forthwith upon arrest and imprisonment of the parole 

violator unless he is convicted of commission of a crime or 

found guilty of violating the conditions of federal or another 

state's parole or probation, then service of said parole 

violation warrant shall not be effective until the expiration of 

any additional sentences by parole or otherwise." G. L. c. 127, 

§ 149.

19 The petitioner contends that during the ten-year delay at 

issue, his parole officer repeatedly told him that he had 

completed his reformatory sentences and would not have to serve 

them again. Although we appreciate the frustration this may 
14

he seeks. Cf. Commonwealth v. Vith Ly, 450 Mass. 16, 22 

(2007);20 Zullo, petitioner, 420 Mass. at 876. There was no 

waiver here.

3. Remaining claims. Finally, the petitioner argues that 

this court's 2008 decision, correcting his sentencing scheme to 

require that he serve the remainder of his reformatory sentences

after the completion of his intervening sentences, violated 

have caused, this is not the type of reliance contemplated to

warrant the removal of the board's jurisdiction to revoke 

parole. Cf. Zullo, petitioner, 420 Mass. at 876. Moreover, 

this court's 2008 decision should have placed the petitioner on 

notice that he would serve the remainder of his reformatory 

sentences once his intervening sentences expired. See 

Goetzendanner I, 71 Mass. App. Ct. at 541.

20 Vith Ly, 450 Mass. at 22, on which the petitioner relies, is 

also inapposite. In that case, the defendant's State prison 

sentences were stayed pending an appeal that was ultimately 

unsuccessful. See id. at 16-17. Due to an error, the stay was 

not lifted, and the Commonwealth did not seek to execute the 

defendant's sentences until sixteen years later. Id. at 21. In 

the interim, the defendant lived in the community, where he 

maintained steady employment, raised three children, and 

believed that his "case was over." Id. at 18, 21. The Supreme 

Judicial Court held that the enforcement of the defendant's 

sentences after such an "unexplained delay" violated due process 

and principles of fundamental fairness. Id. at 17. In 

contrast, here, there has been no showing of fundamental 

unfairness or substantial prejudice in the board's failure to 

promptly amend the petitioner's parole violation warrant. The 

petitioner remained in lawful custody on his intervening 

sentences throughout the delay at issue. Once the petitioner's 

intervening sentences expired, the service of the parole 

violation warrant became effective, as required by statute. See 

G. L. c. 127, § 149. And, contrary to the petitioner's 

assertion, as explained at pages forty-seven through forty-nine 

of the board's brief, the duration of his sentences was not 

increased because of any inaction by Commonwealth authorities.
15

double jeopardy and clearly established Federal law.21 It is 

well settled that a petition for a writ of habeas corpus "cannot 

be employed as a substitute for ordinary appellate procedure" 

(citation omitted). Sheriff of Suffolk County, 438 Mass. at 99. 

The petitioner therefore may not use a habeas petition to 

collaterally attack this court's 2008 decision. See Kauffman, 

petitioner, 413 Mass. 1010, 1011 (1992) (writ of habeas corpus 

"may not be used to raise issues that should have been raised on 

appeal"). Because a petition for a writ of habeas corpus is not 

a proper vehicle to bring these claims,22 we decline to address 

them here.23 See Doyle v. Commonwealth, 472 Mass. 1002, 1003 

21 The petitioner also sought a writ of habeas corpus in the 

United States District Court for the District of Massachusetts. 

A Federal District Court judge denied the petition, in which the 

petitioner raised, among other claims, that this court's 2008 

decision violated double jeopardy.

22 The petitioner's assertion that this court's 2008 decision 

violated art. 30 of the Massachusetts Declaration of Rights is 

also not properly before us.

23 We briefly note that the petitioner's reliance on Commonwealth

v. Selavka, 469 Mass. 502, 509 (2014), in support of his double 

jeopardy claim is misplaced. Selavka, supra at 510-514,

addressed whether the long-delayed correction of an illegal 

sentence that imposed new burdens on a defendant violated the 

prohibition against multiple punishments for the same crime. 

Unlike in Selavka, supra at 514, here, the petitioner's 

sentences were legal, and no new burdens or punishments were 

imposed. The finality in the petitioner's overall sentencing 

scheme did not change. All that changed was the sequence in 

which he served his sentences. See Goetzendanner I, 71 Mass. 

App. Ct. at 541. The petitioner received credit for each day 

that he originally (improperly) served toward his reformatory 

sentences, which were eventually applied to his intervening 

sentences following the Superior Court's issuance of the 

modified judgment in 2008. Finally, as noted supra, the 
16

(2015), and cases cited. Since the petition for a writ of 

habeas corpus was properly denied, the judge did not err in 

denying relief from that order.

Order denying petition for 

writ of habeas corpus 

affirmed.

Order denying rule 60 (b) 

motion affirmed.

By the Court (Vuono, 

Sullivan & Singh, JJ.24),

Clerk

Entered: June 8, 2023.

petitioner was put on notice by this court's 2008 decision that 

he would resume service of his reformatory sentences once his 

intervening sentences expired. Any alleged expectation of 

finality in his original (improperly executed) sentences would 

not have been reasonable.

24 The panelists are listed in order of seniority.