* This order and judgment is not binding precedent, except under the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

### OCT 6 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT JAMES WALTON, Petitioner-Appellant,

v. UNITED STATES MARSHALS SERVICE; U.S. BOARD OF PAROLE, Parole Commission; CAROL PAVILACK GETTY, Commissioner; PAGE TRUE, Warden, USP Leavenworth, Respondents-Appellees. No. 98-3107 (D.C. No. 95-CV-3389) (D. Kan.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , 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. There fore, the case is ordered submitted without oral argument.-2-

Petitioner Robert James Walton, appearing pro se, appeals the district court’s order dismissing his 28 U.S.C. § 2241 habea s petition. We affirm. Walton is currently an inmate in the United States Penitentiary in Leavenworth, Kansas. He was mandatorily released f rom incarceration in August 1991 after serving sentences for various crimes, in cluding bank robbery. A parole violator warrant was issued by the Parole Commissio n on April 6, 1992, on the grounds that Walton was using illegal drugs. The w arrant provided in part: Please assume custody as soon as possible or when l ocated. NOTE: If the parolee is already in the custody of federal or state authorities, do not execute this warrant. Place a detainer and notify the Commission for further instructions. Also, if a cr iminal arrest warrant has been issued for this parolee, executionof such criminal warrant shall take precedence and the Parole Commis sion is to be notified before its warrant may be executed. Record, Doc. 10 at 2. Walton was arrested in California on May 15, 1992, for suspicion of bank robbery. At a hearing before a California magistrate judge on May 21, Walton was advised that an arrest warrant for him had beenissued by authorities in Arizona for suspicion of bank robbery. A U.S. Mars hal represented at this hearing that Walton was in custody “on a federal pa role warrant.” On May 26, the magistrate agreed to hold Walton without bail p ending a removal proceeding on the Arizona charges on the ground he was “a dang er to the community.” Walton was removed to Arizona where he was tried an d convicted of bank-3-

robbery. He was sentenced to 210 months’ imprisonm ent. Neither the California nor the Arizona court held a revocation hearing on Walton’s parole warrant. On November 26, 1993, the Marshal’s Service notifie d the Parole Commission it was holding Walton’s unexecuted April 1992 violator warrant. The Commission instructed the Marshal’s Service to return the warrant and identify Walton’s institution of incarceration. Di sregarding this instruction, the Marshal’s Service executed the warrant one month later at the Tucson Federal Correctional Institution. On January 24, 1994, the Tucson institution notified the Commission that a parole violation detainer had bee n lodged against Walton, and the Commission issued a supplemental warrant applic ation. The Commission held a dispositional review and decided to leave the det ainer in effect. Walton brought this action alleging (1) the Commiss ion “lodged improper detainer after execution of parole violation warran t”; (2) the Commission violated his due process rights “by not holding prompt revoc ation hearing”; (3) the Commission’s “de facto sentencing of Petitioner is a violation of the Constitution’s Doctrine of the Separation of Powers ”; and (4) the U.S. Marshal’s Service “failed to execute process by not properly executing Petitioner’s violator’s warrant.” In dismissing Walton’s action , the district court found any execution was contrary to the instructions of the C ommission and was thus invalid.-4-

It is well settled that once a parole warrant has b een validly executed, the Parole Commission has a legal obligation to hold a parole revocation hearing within sixty days of service. See Sinclair v. Henman , 986 F.2d 407, 409 (10th Cir. 1993). No revocation hearing is required, how ever, if the execution was itself invalid because the Marshal’s Service failed to follow the Commission’s instructions. See id. Whether a parole violator warrant was validly exe cuted is a question of law we review de novo. See McConnell v. Martin , 896 F.2d 441, 445 (10th Cir. 1990). Clearly, the Commission’s instructions were not fol lowed here. The Commission unambiguously directed the Marshal’s Service not to execute the violator warrant if Walton was already in custody o r if a separate criminal arrest warrant had been issued for him. Arizona authoriti es issued a criminal warrant for Walton on April 6, 1992. At the time of Walton ’s May 1992 hearings in California, a separate criminal arrest warrant exis ted and any purported execution was invalid. Likewise, in December 1993, the Commi ssion specifically directed the Marshal’s service to return the violator warrant unexecuted and inform the Commission where Walton was being held. In respons e, the Marshal’s Service executed the warrant, without authorization. Becau se this execution was contrary to Commission instructions, it was also invalid andinsufficient to trigger the sixty-day revocation hearing limitations period. See Sinclair , 986 F.2d at 409-10.-5-

Although not entirely clear, it appears Walton chal lenges the validity of imposing a detainer on him for the duration of his Arizona incarceration. His argument is twofold: First, because the Commission “will not be in existence at the end of [his current] sentences,” he will not re ceive a revocation hearing; and, second, he will not have the opportunity to serve b oth his violator term and his current term concurrently because any revocation he aring will not occur until after he has served his current Arizona sentence. Walton’s arguments are without merit. The violatorwarrant has not been, and in fact may never be, validly executed. Until that time, any determination as to his right to a revocation hearing and the timing of that hearing are premature. In addition, the decision to execute the violator w arrant during Walton’s current incarceration, or to file it as a detainer, is a de cision within the province of the Commission. See 18 U.S.C. § 4214(b) and (c). As we noted in McConnell , “the Parole Commission alone has the power to choose whe ther to order that a parole violator warrant be executed or be filed as a detainer.” 896 F.2d at 446. See also Barnard v. Henman , 89 F.3d 373, 377 n.8 (7th Cir. 1996) (“There is n o dispute that the Commission can issue a warrant and place i t as a detainer against the prisoner, waiting to execute it until the prisoner has completed service of his

sentence for the crime that he committed on parole. ”).-6-

AFFIRMED. The mandate shall issue forthwith. Entered for the Court Mary Beck Briscoe Circuit Judge