George Heath, pro se, appeals from a judgment entered in the United States District Court for the Northern District of New York (Munson, C.J.) that denied his petition for a writ of habeas corpus and requests assignment of counsel). The application for assignment of counsel is denied. Affirmed.
Before: LUMBARD, CARDAMONE and WINTER, Circuit Judges.
CARDAMONE, Circuit Judge:
George Heath, pro se, appeals from a judgment entered May 7, 1985 in the United States District Court for the Northern District of New York (Munson, C.J.), denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (1982), and seeks assignment of counsel. This case illustrates the unreliability of the proverb "where there's smoke, there's fire." Cf. Lyly, Euphues (1579). What makes the proverb so untrustworthy, of course, is its false premise that all suspicions are warranted. On first impression, appellant's claim that he did not receive timely review of parole violations charges against him suggests cause for concern. That concern disappears like a shadow under the light of a careful second inquiry when Heath's arguments are subjected to a searching examination, which reveals them to be without merit. We therefore deny the application for assignment of counsel and affirm the district court's denial of habeas relief.
I Facts and Proceedings Below
While on parole from a federal sentence, appellant was arrested on June 24, 1981 in New York State and charged with robbery and illegal use of a firearm. The United States Parole Commission (Commission) issued a parole violation warrant against him on July 28, 1981 based on the state charges and his unauthorized absence from the district of supervision. Apparently the warrant was never executed, but it was lodged against Heath as a detainer warrant, see 18 U.S.C. § 4214(b)(1) (1982), on a date not specified in the record. Several months later--on November 2, 1981, prior to the disposition of the state charges-- he filed a habeas petition in district court seeking reinstatement of his parole on the grounds that the Commission had deprived him of due process by failing to provide a timely revocation hearing. In denying relief, the court stated that Heath had no right to such a hearing until the parole violation warrant was executed, and no due process right to compel execution of the warrant. Heath v. United States Parole Commission, 526 F. Supp. 584, 585-86 (W.D.N.Y. 1981) (Curtin, C.J.); see 18 U.S.C. § 4213(b) and 28 C.F.R. § 2.44(b) (1985) (authorizing the Commission to withhold or to hold a warrant in abeyance until disposition of state charges).
On April 5, 1982 appellant was convicted of the state charges and he was sentenced on June 1 to a term of 11 to 22 years to run concurrently with his federal sentence. The Commission notified Heath on September 30, 1982 of the pending dispositional review of the detainer, as required by 28 C.F.R. § 2.47(a)(2), and informed him on April 1, 1983 that the detainer would remain in effect until a dispositional revocation hearing was scheduled. On May 31 the Commission advised him that a dispositional revocation hearing would be held. Along with this notice the Commission sent forms that appellant was requested to complete and return within 30 days. The forms were not received within that time and a Commission officer later met with Heath on July 15 to assist him in completing them. The magistrate to whom Heath's petition was referred concluded that "any delay in holding the required hearing seems to be attributable to petitioner's refusal to complete the forms as requested."
Heath filed another petition for habeas relief on July 25, 1983 again asserting that the Commission had not provided a timely revocation hearing. He requested the district court to vacate the detainer--that he claimed hindered his eligibility for rehabilitative and educational programs within state prison--and to reinstate parole, or to transfer him to federal prison. On August 29, 1983 the Commission conducted a dispositional revocation hearing at which appointed counsel represented appellant. Following the hearing, the Commission revoked appellant's parole, ordered that the time spent on parole be forfeited and that the unexpired term of his federal sentence begin to run upon his release from state custody. According to Heath, the Commission also decided to "let stand the parole detainer which will be satisfied in 1988 by way of the superseding state sentence of 11 to 22 years."
Appellant then moved for summary judgment in district court adding the following claims against the Commission to those already advanced in his July 1983 habeas petition: (1) untimely revocation hearing prejudiced his ability to present an insanity defense at his state trial; (2) improper disposition of the parole violation charges; (3) improper exclusive reliance on state conviction in revoking parole and failure to consider mitigating evidence; (4) tolling the unexpired term of his federal sentence frustrated the state court's intent to have him serve concurrent terms.
Heath's habeas petition was referred to a magistrate who concluded that the notice to Heath and the revocation hearing--calculated either from the date of Heath's state conviction (April 5, 1982) or the date of his sentencing (June 1, 1982)--had been timely. In the magistrate's view, any delay in holding the required hearing was attributable to petitioner's refusal to complete the forms as requested. Moreover, the magistrate found that Heath could not prevail on the issue of delay even if the notice time were calculated from the date the warrant was issued (July 21, 1981), because he had failed to show that the delay was both unreasonable and prejudicial. Finally, the magistrate rejected appellant's challenge to the Commission's disposition of the parole violation charges because the Commission is authorized both by statute and regulation to order forfeiture of the time spent on parole and the tolling of the federal sentence. See 18 U.S.C. § 4210(b)(2); 28 C.F.R. §§ 2.47(d)(2), 2.52(c)(2). The district court adopted the magistrate's report and denied Heath's habeas petition. From this denial the present appeal in which appellant requests assignment of counsel is taken.*fn1
II Right to Assignment of Counsel
We begin by discussing the right to assignment of counsel on appeal. Every defendant unable to obtain counsel "shall be entitled to have counsel assigned to represent him at every state of the proceedings from his initial appearance before the federal magistrate or the court through appeal, unless he waives such appointment." Fed. R. Crim. P. 44(a). The Criminal Justice Act similarly provides for counsel through appeal. 18 U.S.C. § 3006A(c). This right is derived from the Sixth Amendment's guarantee that every criminal defendant "shall enjoy the right [to] . . . the assistance of counsel for his defense." On a direct appeal from a conviction the absolute right to counsel is assured every defendant. But appointment of counsel on an appeal involving a collateral attack on a conviction is a matter that rests within the discretion of the appeals court. Miranda v. United States, 455 F.2d 402, 404-05 (per curiam), supplemented, 458 F.2d 1179 (2d Cir.) (per curiam), cert. denied, 409 U.S. 874, 93 S. Ct. 207, 34 L. Ed. 2d 126 (1972). Any person, according to 18 U.S.C. § 3006A(g), "seeking relief under section 2241, 2254, or 2255 of title 28 or section 4245 of title 18 may be furnished representation . . . whenever . . . the interests of justice so require and such person is financially unable to obtain representation." Thus, this appeal from an adverse decision in an action under 28 U.S.C. § 2241 against the Commission is one in which we must determine in the exercise of our discretion whether assignment of counsel is in the interests of justice.
Appellant's argument regarding the timeliness of the Parole Commission's procedures as they affect him seems persuasive at first glance. But a second look reveals it to be without substance. Heath's claims lack merit because it is not the timeliness of the procedures that is adversely impacting him, but his commission of a felony while on parole. Further, even were the action taken by the Commission to be held untimely--and they were not--the remedy is not habeas corpus reinstating his federal parole status (and complete release from incarceration upon state parole), but mandamus to compel the Commission to act within statutory time limitations, with ...