Gaddy v. Michael

519 F.2d 669, 1975 U.S. App. LEXIS 13825
Court of Appeals for the Fourth Circuit·Decided July 7, 1975·No. No. 74-2054·Published·Cited by 41 cases

Opinion

DONALD RUSSELL, Circuit Judge:

The issue in this appeal is whether the Parole Board is required to hold and dispose of a revocation proceeding within two months after the issuance of a parole violators warrant or may delay, under appropriate circumstances, the hearing on, and disposition of, such warrant until it has been executed.1 The District Court held that the Board must dispose of the proceeding within this two months’ period. We conclude, to the contrary, that the execution of the warrant may, in proper circumstances, be held in abeyance and that, when so held in abeyance, the revocation hearing on, and the disposition of the warrant may be delayed until after the warrant has been executed. We accordingly reverse.

The petitioner, who has filed this ha-beas proceeding, had been convicted of the federal crime of counterfeiting and had secured mandatory good-time release under § 4163, 18 U.S.C., “as if paroled,” with approximately a year and a half remaining on his federal sentence. About five months after his release, he was arrested, convicted, sentenced and imprisoned on a state charge admittedly violative of his parole. The United States Board of Parole issued on April 10, 1973 — only a few days after his conviction on the intervening charge — a parole violators warrant on the basis of his state conviction and a detainer was filed within a few days thereafter with the state authorities having custody of the petitioner. The petitioner was promptly advised that the detainer had been filed and that he might “submit to the Board any information [he] would like considered by the Board in disposing of the [672] warrant. Upon receipt of such information, he was further advised that “[his] case [would] be reviewed and, if deemed appropriate, a representative of the Parole Board [would] personally interview [him] prior to any action being taken on the warrant.” 2

On May 28, 1974 the petitioner was released by the state authorities3 to the custody of the United States pursuant to the parole violators warrant. On the same day, he was given a “probable cause” hearing and on August 30, 1974, the final hearing on the revocation was held, resulting in the revocation of his parole. In the meantime, the petitioner had, almost immediately after his release by the state authorities to federal custody, filed this habeas proceeding in the District Court for the purpose of voiding or cancelling the parole violators warrant because of the alleged denial of his due process right to a prompt hearing and disposition after the issuance of the warrant. The District Court granted partial relief. It held, relying primarily on Morrissey v. Brewer (1972) 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 that “sixty days after the filing of the parole violators warrant by the Parole Board is a reasonable time for the Parole Board to conduct its revocation hearing and render a decision” 4 and that, if it should not complete such proceedings within such sixty day period, “the United States [would] be estopped from denying that a prompt hearing would have resulted in concurrent sentence of the federal parole violation sentence and the [state] sentence.” It granted by way of relief the cancellation of the federal warrant, unless the Board of Parole gave the petitioner “a due process hearing on the question of the revocation of his federal parole within thirty days after the filing of this order.” It proceeded further to hold that even if a hearing were granted within the thirty days, “the Parole Board [should] subtract from the potential of 423 days left in the original sentence, all of the days from June 10, 1973 (which was the final day for the completion of the revocation proceedings under the Court’s sixty-day rule) until the decision of the Board * * * had been communicated to” the petitioner. The United States has appealed from this decision. As stated, we reverse.

It is generally agreed and has long been recognized that the Board of Parole, after the issuance of its parole violators warrant, is obligated, as a matter of fundamental fairness, to execute with reasonable dispatch its parole violators warrant and, after the warrant has been executed, to accord to the parolee his due process rights to a hearing within a reasonable time.5 But, the au[673] thorities, while recognizing this obligation, have uniformly held that there is no inflexible time standard, such as the sixty-day standard mandated by the decision of the District Court, within which the Board must act, either in the execution of the warrant or, after its execution, in according the parolee his hearing rights.6 What is a reasonable time and whether the Board in a particular case has acted within a reasonable time, either in connection with the execution of the warrant or in the subsequent grant of a hearing, just as the constitutional right to a speedy trial, may not be cast in absolute terms and “quantified into a specific number of days or months”7 but depends upon all the circumstances of the particular case. Shelton v. United States Board of Parole (1967) 128 U.S. App.D.C. 311, 388 F.2d 567, 574; Williams v. Pierpont (D.C.Mo.1970) 315 F.Supp. 1311, 1313. Mere lapse of time or delay, particularly where the delay is in the execution of the warrant, without more, will no more violate the due process right of a parolee than will a delay of trial in the ordinary criminal case offend the “speedy trial” provision of the Constitution, Cf., Barker v. Wingo, supra. To entitle the parolee to relief, the delay, taking into consideration all the circumstances, must be unreasonable; it must also be prejudicial. A decisive issue in these cases is prejudice. As a matter of fact, a leading authority has characterized prejudice as “the focal point of the inquiry.” Shelton v. United States Board of Parole, supra, at 574; Savage v. U. S. Parole Board (6th Cir. 1970) 422 F.2d 1248, 1250. To repeat, delay “is but one element, albeit a forceful one, to be considered. Timely objection to the delay, unavailability of witnesses, lost sources of mitigating evidence, the violator’s own conduct as a contributing cause of the delay, and the Parole Board’s reasons for the delay are factors which also must weigh in the balance” when determining whether there has been unreasonable delay and whether there has been prejudice. United States v. Kenton (D.C.Conn.1967) 262 F.Supp. 205, 209; Agresti v. Parker (D.C.Pa.1968) 285 F.Supp. 893, 897; Shelton v. United States, supra, at 574.

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