Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona DARCY A. CEROW Assistant U.S. Attorney Arizona State Bar No. 011822 [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-04-50024-PHX-JAT Plaintiff, v. Victor Hurier, Defendant. GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS ARREST WARRANT FOR VIOLATION OF CONDITIONS OF SUPERVISED RELEASE AND RELATED PROCEEDINGS

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's above captioned motion and requests that this Court deny same. This request is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 10 th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona
/S/ DARCY A. CEROW

DARCY A. CEROW Assistant U.S. Attorney

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. FACTS

MEMORANDUM OF POINTS AND AUTHORITIES

On June 28, 1999, the defendant was sentenced in the Central District of California to 30 months incarceration to be followed by 36 months of supervised release. Supervision

commenced on December 19, 2002 upon defendant's discharge from imprisonment. On February 20, 2004, jurisdiction was transferred to this Court. On March 10, 2004, a Petition on Supervised Release was filed alleging the defendant used cocaine, failed to submit to urinalysis testing on eight (8) occasions and failed to pay restitution. An arrest warrant was issued on March 10, 2004. According to the defendant's motion, on

May 22, 2004, he was arrested by the Arizona Department of Public Safety on the March 10, 2004 warrant and other charges. The defendant further states that he was prosecuted by state authorities for theft and is currently serving a sentence of more than six (6) years in Arizona State custody.. On December 29, 2004, an amended revocation petition was filed to comply with the decision in United States v. Vargas-Amaya, 389 F.3d 901 (9 th Cir. 2004). The March 10, 2004 warrant was quashed and a new warrant issued on December 30, 2004 as a result of the amended petition. The allegations in the December 2004 petition are the same as the allegations in the March 2004 petition. According to the United States Marshal, the December 2004 warrant is lodged as a detainer because the defendant remains in state custody. On February 27, 2006, the defendant filed the instant motion. The defendant argues that this Court lacks jurisdiction because the March 2004 petition was not signed under oath and affirmation as required by Vargas-Amaya and his supervised release term has expired. In addition, the defendant asserts that the existence of the warrant is causing him substantial harm. /// /// /// /// 2

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B. JURISDICTION The defendant argues that this Court lacks jurisdiction because the March 2004 petition was not signed under oath and affirmation by the probation officer and his supervised release term has expired. However, the defect in the March 2004 petition was cured by the filing of the

December 2004 petition approximately one year prior to the expiration of defendant's supervised release in December 2005. Therefore, the defendant's argument lacks merit. C. SUBSTANTIAL HARM The defendant asserts he is suffering substantial harm because of the existing warrant
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In support of his argument, the defendant complains that he does not qualify for certain privileges because of the detainer that was lodged as a result of the December 2004 warrant. Due process requires that a person accused of violating supervised release, parole, or probation receive a revocation hearing "within a reasonable time after [the person] is taken into custody". Morrissey v. Brewer, 408 U.S. 471, 488 (1972) (parole revocation); see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (applying the holding of Morrissey to revocation of probation). In Moody v. Daggett, 429 U.S. 78, 86-87 (1976), the Supreme Court held that the hearing mandated by Morrissey is required only after the person charged with violating parole is taken into custody for the parole violation and that the issuance of a warrant and the lodging of a detainer, while the person is incarcerated elsewhere for a separate crime, do not constitute being taken into custody. Rather it is the execution of the warrant, after termination of the intervening sentence, that takes the person into custody for the parole violation that triggers the obligation for a Morrissey hearing. The Ninth Circuit found that the United States is not required to writ a defendant out of state custody and bring him into federal custody for a supervised release revocation hearing even if the supervised release term expired while the defendant was in state custody. United States v. Garrett, 253 F.3d 443, 449 (9 th Cir. 2001). The Court found that no court or statute has placed such a duty on the government. The defendant refers to the March 2004 warrant in his motion. However, because that warrant has been quashed, it is the December 2004 warrant that has been lodged as a detainer. 3
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Based on the above, the defendant's motion should be denied. Once he has completed his state sentence he will be brought to federal court to adjudicate his pending supervised release violation petition. Respectfully submitted this 10 th day of March, 2006.

PAUL K. CHARLTON United States Attorney District of Arizona
/S/ DARCY A. CEROW

Darcy A. Cerow Assistant U.S. Attorney

I hereby certify that on March 10, 2006 I electronically transmitted the forgoing document to the Clerk's Office using the CM/ECF System for filing . A copy mailed to: Victor Hurier 75782 Cheyenne P.O. Box 13006 Yuma, AZ 85366 Matt L. Bass U.S. Probation

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