October 28, 2008
On February 28, 2005, Defendant was sentenced to a term of 27 months in prison and a term of 36 months supervised released. Dkt. #24. Defendant's probation officer filed a petition to revoke supervised release on October 11, 2006. Dkt. #27. An arrest warrant issued the same day. Dkt. #28. Defendant currently is serving a state prison sentence.
Defendant has filed a motion for speedy trial. Dkt. #29. In its response, the Government cites legal authority for the proposition that a hearing on a federal petition to revoke supervised release is not required until after the defendant is taken into federal custody and that the issuance of a warrant and the lodging of a detainer, while the defendant is incarcerated elsewhere for a separate crime, do not constitute being taken into custody. Dkt. #31 at 2-3 (citing Morrissey v. Brewer, 408 U.S. 471, 488 (1972); Moody v. Daggett, 429 U.S. 78, 86-87 (1976)); see United States v. Garrett, 253 F.3d 443, 447 (9th Cir. 2001) ("A revocation hearing . . . need only be tendered promptly after the violation warrant is executed, because a parolee does not suffer a loss of liberty as a parole violator until he is taken into custody under the violation warrant.") (emphasis in original). Defendant counters in his reply that he was taken into custody by his federal probation officer and then turned over to state authorities. Dkt. #32.
IT IS ORDERED that the Government shall file a sur-reply by November 7, 2008, addressing whether Defendant was taken into custody by his federal probation officer pursuant to the federal arrest warrant issued on October 11, 2006 (Dkt. #28), and, if so, the effect of that fact on the Government's position.