de la Cova y Gonzalez Abreu v. United States

611 F. Supp. 137, 1985 U.S. Dist. LEXIS 19781
CourtDistrict Court, D. Puerto Rico
DecidedMay 16, 1985
DocketCiv. No. 85-0725 GG
StatusPublished
Cited by3 cases

This text of 611 F. Supp. 137 (de la Cova y Gonzalez Abreu v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Puerto Rico primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
de la Cova y Gonzalez Abreu v. United States, 611 F. Supp. 137, 1985 U.S. Dist. LEXIS 19781 (prd 1985).

Opinion

OPINION AND ORDER

GIERBOLINI, District Judge.

Petitioner, Antonio Rafael de la Cova y González Abreu, filed the present habeas corpus petition pursuant to 28 U.S.C. § 2241(c)(2) and (3),1 alleging that he has been incarcerated without due process of law and in violation of his right of free speech and press as guaranteed by the First Amendment of the Constitution. Petitioner also asserts that the Warden of the State Penitentiary, acting under color of state law, has violated his constitutional right to due process of law as guaranteed by the Fourteenth Amendment. Specifically, as to the Warden, a cause of action is asserted pursuant to 42 U.S.C. § 1983.

The magistrate to whom this matter was referred rendered a report on April 3, 1985, recommending that the present petition be dismissed due to petitioner’s failure to exhaust available administrative remedies. Petitioner has filed an opposition to the magistrate’s report requesting, inter alia, that petitioner be placed under bail or supervision as provided by 18 U.S.C. § 4214(a)(l)(A)(ii), and that the conditions imposed by the Parole Commission be declared an unconstitutional abridgement of petitioner’s First Amendment rights. Petitioner has also requested a de novo hearing before this court.

[139]*139A brief summary of the facts is necessary. Petitioner was convicted for conspiracy, civil rights violations, and for using explosive devices and destroying property. He was sentenced to fifteen years confinement by the United States District Court for the Southern District of Florida. Sentence was imposed on September 22, 1976 and on May 5,1981, petitioner was released on parole. His release was subject to two conditions:

1. You shall not work/associate with any political group that could conceivably endanger your adjustment to supervision.
2. You shall not write any article in any local newspaper which might heighten awareness of political issues or situations for or against any given political government.2

On March 26,1985, petitioner was arrested for violating the second condition of parole. He is presently incarcerated without bail at the Rio Piedras State Penitentiary, San Juan, Puerto Rico.

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the Supreme Court held that a parolee is constitutionally entitled to certain minimum due process protections before his parole may be revoked. Since the revocation of parole is not part of the criminal prosecution, the full panoply of rights accorded a defendant in such a proceeding does not apply to parole revocations. Due process only requires that an informal hearing be held which assures that the finding of parole violation be based on verified facts and that the exercise of discretion be informed by an accurate knowledge of the parolee’s behavior. Morrissey, supra, at 480-484, 92 S.Ct. at 2599-2602. The parolee does not have a constitutional right to release or bail before a revocation hearing. Galante v. Warden, 573 F.2d 707, 708 (2d Cir.1977).

Specifically, the Parole Commission and Reorganization Act, 18 U.S.C. at §§ 4213-15, contains provisions concerning parole revocation. Also, the United States Parole Commission has issued regulations governing revocation proceedings. See 28 C.F.R. § 2.44, et seq.

If a parolee is alleged to have committed a violation of his parole, the Commission under Section 4213 may either summon the parolee to a Section 4214 revocation hearing or issue a warrant and retake the parolee. See 28 C.F.R. § 2.44. If a parolee is retaken on a warrant issued by the Commission, he shall remain in custody until final action is taken regarding revocation of his release. See 28 C.F.R. 2.49(d). . Section 4214(a)(1)(A) provides that a parolee is entitled to a preliminary hearing, at or reasonably near the place of the alleged parole violation or arrest, without unnecessary delay to determine if there is probable cause to believe that he has violated a condition of his parole. If probable cause is found to exist the Commission may restore the parolee to parole supervision subject to certain conditions delineated in Section 4214(a)(l)(A)(i-iv). However, if parole is revoked under Section 4214, the parolee may seek reconsideration before the regional commissioner and if the decision is adverse, it may be appealed to the National Appeals Board. See Section 4215.

As stated earlier, petitioner was retaken on March 26, 1985. A preliminary hearing was scheduled for April 17,1985 at which attorneys for petitioner as well as two United States Probation officers were present. Due to certain misunderstandings, the hearing was continued to April 25, 1985. Although 18 U.S.C. § 4214(c) requires the Commission to conduct a final revocation hearing within ninety days of petitioner’s retaking (i.e., within ninety days of March 26, 1985), this period of time has not yet elapsed and petitioner must first exhaust his administrative remedies before habeas corpus relief may be sought in this court. Guida v. Nelson, 603 F.2d 261 (2d Cir.1979); United States ex rel. [140]*140Sanders v. Arnold, 535 F.2d 848, 851 (3rd Cir.1976); Willis v. Ciccone, 506 F.2d 1011, 1015 (8th Cir.1974).

Furthermore, the appropriate remedy for the failure to conduct a hearing under Section 4214 would be a writ of mandamus to compel the Commissioner’s compliance and not a writ of habeas corpus to compel release on parole. Sutherland v. McCall, 709 F.2d 730 (D.C.Cir.1983). Absent prejudice or bad faith on the part of the Commission, immediate release from custody is not available for violation of Section 4214. See Carlton v. Keohane, 691 F.2d 992-993 (11th Cir.1982); Lambert v. Warden, U.S. Penitentiary, 591 F.2d 4, 7-8 (5th Cir.1979); Smith v. United States, 577 F.2d 1025

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Bluebook (online)
611 F. Supp. 137, 1985 U.S. Dist. LEXIS 19781, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-la-cova-y-gonzalez-abreu-v-united-states-prd-1985.