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, theref ore, 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 GOETZEND ANNER, 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 servi n g the balance of his

sentence s on his 1983 convictions becaus e , 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 , 5 4 1 (2008) ( Goetzendanner I ) ,
violated double jeopardy principles and clearly established

F ederal 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 sentenc ing

structure waived its right to enforce the remainder of his 1983

sentences , and the failure to schedule a timely final parole
revocation hearing for th ose sentence s 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 murd er. He

was ordered to serve concurrent sentences (reformatory

sentences), 2 the longest of which was twenty years.
Eight years later, i n June 1991, the petitioner was
released on parole f rom the se sentences. T he petitioner was
charged with new crimes while out on p arole , 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 wide ly used by Superior Court judges in the 1980's," until its abolition in 199 4

. Commonwealth v. Thurston , 53 Mass. App. Ct. 548, 55 4

- 55 5 (2002). This type of sentence involved "the imposition of an apparently long sentence
o n an individual deemed capable o f rehabilitation .

. ., not to the State prison at M.C.I., Walpole (now called Cedar Junction) but rather to the S tate '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 kidnappin g ( 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 G oetzendanner 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.

I n 200 3 , 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 impose d 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 appeal ed.
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. W e held that

" t he dep artment 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 s entences." 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 r emaining time of his reformatory sentences5

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 directi ve . Over ten years later, in November 2018, the department
reportedly notified the b oard 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 expire d, 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 b e 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 releas e . 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 Commonwealt h 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) th is c ourt's 2008 decision in Goetzendanner I , restructuring the petitioner's sentencing scheme , violated
double jeopardy and clearly established F ederal law

. A Superior
Court judge denied the petition. The petitioner appealed.
In March 2021, the petitioner filed a "motion for relie f
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 sentence s had

not increas ed due to the change in his senten c ing structure

.

8 T he petitioner's final parole revocation hearing was held in May 2020. The petitioner was later released fro m custody on parole supervision on November 16, 2020.7

According to the petitioner , th e duration of his reformatory

sentence s increased by nearly two year s because of this court's

2008 decision

. The same Superior Court judge also denied th is
motion, and the petitioner again appealed

. The petitioner's
appeals from the order den y i ng 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 habe as corpus petitioner must establish

that (1) there has been a violation of the State o r 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. T he petitioner asserts that he is entitled to

immediate release from serving the balance of his reformatory

sentence s on the same grounds set forth in his motions in the
Superior Court , listed supra . We addr ess each in turn.

1. Due Process

. a. Final parole revocation hearing

. T h e
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, or8

T he parties agree that under 120 Code Mass. Regs.

§ 303.1 8 (2) (1997), 10 th e 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 interes ts 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 interv ening 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 heari ng 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 word s " 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. Th e 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 H ere, t he 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 , th e 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 (6t h 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 o fficers 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 con victions o f 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,"

b e 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, 53 8 (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 sente nce 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

fruit ion

. 15 The petitioner ha d no right to serve his sentence s
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 ., 8 2 Mass.
App. Ct. 851, 858 (2012). E ven if w e 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

en titled 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 be en inclined to grant his request to serve his reformatory sentences concurren t ly 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 sentence s . Commonwealth v. Blake , 454 Mass. 267, 28 1 (20 09 )12

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

relief is not permitted

. See Sheriff of Suffolk County v.

Pires , 438 Mass. 96, 100 (20 02 ) (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

-- waiv ed its right to

enforce his parole violation warrant and impose the balance of
his reformatory sentences when it wait ed over ten year s to amend
the petitioner's parole violation warrant and implement th e
modification of his sentencing structure

. Again, we disagree.

To support this claim, t he petitioner first directs us to

Zullo , petitioner , 420 Mass. 872 (199 5 )

. There, the Supreme

Judicial Court considered whether "the belated service of a
parole revocation warrant results in the board's loss of the

auth ority 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 violat or 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 exec ute the balance of the parolee's prison sentence and the State courts hav e no 'jurisdiction' to revoke parole."

(Gants, J., concurring). See also Commonwealth v. Burhoe , 3 Mass. App. Ct. 590, 59 5 (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 T his principle is not applicable in the instant

case .
Here, t he 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 petit ioner's intervening sentences concluded ,
the warrant was executed, and the petitioner remained in
custody

. T here was thus no delay in the service or enforcement

of the warrant . Further, a bsen t 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 factor s 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, h is parol e 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 may14

he seeks

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

(2007); 20 Zullo , pet itioner , 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 schem e to
require that he serve the remainder of his reformatory sentence s

after the completion of his intervening sentences, violated

have caused, this is not the type of reliance contemplated to warrant the remov al of the board 's jurisdiction to revoke parole. Cf. Zullo , petitioner , 420 Mass. at 876. Moreover , th is 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 i d

. at 1 6

- 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 t hree 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, h ere, 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 sentence s w as not increased because of any inaction by Commonwealth authorities

.15

double jeopardy and clearly established F ederal law. 21 It is
well settled that a petition for a writ of habeas corpus "cannot
be employed as a substitute for ordinary appel late procedure "
(citation omitted). Sheriff of Suffolk County , 438 Mass. at 99

.

T he 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 h a beas corpus is not
a proper vehicle to bring these claims, 22 we decline to address

them here

. 23 See Doyle v. Commonwealth , 472 Mas s. 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 T he 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 W e briefly note that t he petitioner's r el iance on Commonwealth

v. Selavka , 469 Mass. 502 , 509 (2014) , in support of his double jeopardy cla im 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 S elavka , supra at 514, here , the petitioner's sentence s w ere legal, and no new burdens or punishments were imposed. T he 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 , the16

(2015) , and cases cited

. Since t he 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

.
O rder 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 sentence s once his intervening sentences expired. Any alleged expectation of finality in his original ( improperly executed ) sentence s would not have been reasonable.
24 The panelists are listed in order of seniority.