Herbert E. Rose v. E. B. Haskins, Superintendent

388 F.2d 91, 18 Ohio Misc. 81, 45 Ohio Op. 2d 395, 1968 U.S. App. LEXIS 8518

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 5, 1968
• Docket: 17809_1
• Status: Published

Opinions

WEICK, Chief Judge.

This appeal involves an important question of law relating to the power and authority of the federal courts in a habeas corpus proceeding to review an order of a state parole board revoking the parole of a prisoner who had been twice convicted of crimes in the state court, paroled twice, declared a parole violator the second time, and returned to state prison to serve his sentence there rather than outside the prison. The prisoner contends in this Court that his right to due process of law under the Fourteenth Amendment was violated when the state parole board declared him a parole violator without a hearing. This contention requires a determination as to whether a paroled prisoner, in custody of prison authorities, who has not served his sentence, possesses rights as distinguished from privileges. Resort must be had to state law to ascertain the status of state prisoners.

Rose was convicted in 1961 upon his plea of guilty in the Common Pleas Court of Franklin County, Ohio, to ten counts of an indictment charging him with committing forgeries. He was sentenced to an indeterminate term of from one to twenty years in the Ohio prison. While on parole he was convicted again in 1963 in the same court for issuing checks without sufficient funds in the bank, and was sentenced to concurrent terms of from one to three years’ imprisonment.

No appeals were taken from either of these judgments of conviction or the sentences. Rose has never questioned their validity. In 1964 Rose was paroled on the 1963 sentence and reparoled on the 1961 sentence. In 1965 the Parole Commission again declared Rose a parole violator and returned him to prison, when it received information that he had molested his minor daughter. Such an offense is a felony under Ohio law, Ohio Rev.Code § 2903.01, and a violation of the conditions of his parole. His maximum sentence on the 1961 conviction will expire on October 14, 1982.

Rose instituted habeas corpus actions in the Court of Common Pleas of Madison County, Ohio, and in the Court of Appeals of that County, but was denied relief. He filed a habeas corpus proceeding in the Supreme Court of Ohio but that Court relegated him to his remedies under Ohio’s new post-conviction statutes. Ohio Rev.Code § 2953.21 to 2953.-24, inclusive (Supp. 1966). He did not pursue those remedies. Instead he filed a habeas corpus petition in the United States District Court for the Southern District of Ohio, which was dismissed without a hearing. This appeal followed.

The papers filed by Rose in the District Court indicate that after his arrest for parole violation, he requested the Assistant Prosecuting Attorney of Franklin County to prosecute him for the offense of molesting his daughter, so as “to afford me the right of defense”, but he claims that the Prosecutor declined to do so giving as a reason that he could not prosecute without a warrant from his accuser. It should be observed also that such a prosecution, if successful, would add only an additional sentence to the seventeen years remaining to be served on his prior sentences.

Rose alleged in his habeas corpus petition that he was entitled under the Constitution to the “benefit of confrontment of his accusers, examination of witnesses, arraignment on the indictment, legal counsel, trial by jury, and the privilege of appeal”, and that the action taken against him by the Parole Commission violated rights guaranteed to him under the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments to the Constitution.

In the District Court Rose also filed a motion for a subpoena duces tecum to require the attendance of the Chairman and another member of the Parole Commission, and the production of all records of the Commission pertaining to his case, including reports to the Commission made by his parole officer and the district parole supervisor. He also requested subpoenas for the Assistant Prosecuting Attorney, for Rose’s ex-wife who was his accuser, and for his father and mother. It is apparent that what Rose wanted was a trial in the District Court on the issue of his guilt for molesting his minor daughter.

The record does not show that he ever requested the Parole Commission to grant him a hearing. Limited hearings have been granted by the Parole Commission upon request, DiMarco v. Denton, 385 F.2d 556 (6th Cir. 1967), but not a judicial hearing.

In State ex rel. London v. Ohio Pardon & Parole Comm., 2 Ohio St.2d 224, 208 N.E.2d 137 (1965), the Supreme Court of Ohio held:

“Relator was returned to the Ohio Penitentiary in September 1963 as a parole violator. After his return thereto, he had a hearing before the commission, and his parole was revoked for the violation of four different rules of parole. Relator apparently is urging in his petition that he is entitled at his hearing on a violation of parole to all the rights accorded an accused in his original trial such as compulsory process to procure witnesses, counsel, etc. In other words, a complete judicial hearing.

“The position of the parolee was thoroughly considered in In re Varner, 166 Ohio St. 340, 142 N.E.2d 846. See also State ex rel. Newman v. Lowery, et al., Ohio Pardon and Parole Commission, 157 Ohio St. 463, 105 N.E.2d 643.

“The reasoning in the Varner case in relation to habeas corpus is equally applicable to an action in mandamus. The demurrer is sustained, and the writ is denied.”

It is axiomatic that the administration of the state’s penal system is exclusively a state function under the reserved powers in the Constitution. The state may thus enact legislation defining what conduct constitutes a crime and fixing the sentence to be imposed upon conviction therefor and the manner in which the sentence shall be served. The execution of the sentence is within the authority of the state’s executive department. The state is not required to provide for parole and, if it does, may stipulate its terms and conditions as well as the status of a parolee. Parole is a matter of grace in Ohio, DiMarco v. Denton, Warden, 385 F.2d 556 (6th Cir. 1967); Cox v. Maxwell, Warden, 366 F.2d 765 (6th Cir. 1966).

Ohio has defined the status of a parolee. Ohio Rev.Code § 2965.01(E), in effect at the time, provided:

“(E) ‘Parole’ means the release from confinement in any state penal or reformatory institution, by the pardon and parole commission upon such terms as the commission prescribes. A prisoner on parole is in the legal custody of the department of mental hygiene and correction, and under the control of the commission.” (Italics ours.)

A state prisoner on parole is in custody within the meaning of 28 U.S.C. § 2241. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

Ohio Rev.Code § 2965.21, then in effect, conferred power on the Parole Commission to determine parole violations. It provided in part:

“ * * * [A] prisoner who has been paroled, who in the judgment of the pardon and parole commission has violated the conditions of his * * * parole shall be declared a violator.”

Nowhere in the parole statutes is there a provision for a hearing on parole revocation. Nor do the statutes provide for judicial review. The orders of the Commission are final in Ohio.

In re Varner, 166 Ohio St. 340, 142 N.E.2d 846 (1957), the Supreme Court of Ohio construed the Ohio parole statutes. Judge Taft, now Chief Justice, in delivering the opinion of the Court, said:

“There are statutory expressions which clearly indicate a legislative intent that a convict should be on parole only where his freedom would be consistent with the protection, welfare and security of society. Section 2965.09 Revised Code. It is apparent that the General Assembly expressly regarded such protection, welfare and security as of far more importance than even the temporary freedom on parole of any convicted felon.

“There is no express statutory requirement of any hearing before the commission declares a parolee to be a violator, and, where he is a violator, he may be arrested forthwith. Also, there is no apparent limitation provided with respect to the authority and power of the commission to determine that a parole violator should be imprisoned. Section 2965.21, Revised Code. In contrast there are some limitations on the authority of the commission to parole a convict. Sections 2965.18 and 2965.23, Revised Code.

“Under our statutes, one convicted of a felony does not cease to be a convicted felon when he is paroled. There is no ‘remission of penalty’ as there is with respect to a pardon. Subdivision (B) of Section 2965.01, Revised Code. As our statutes indicate, when a person is paroled, he is thereby merely released from confinement in a penal or reformatory institution. While on parole, he still remains ‘in the legal custody of the department of mental hygiene and correction and under the control of the commission.’ Subdivision (E) of Section 2965.01, Revised Code. His position, though usually more desirable, is in substance similar to that of a prisoner in a penal or reformatory institution who, because of good behavior, may, as a so-called ‘trusty,’ be allowed temporarily to leave the confines of the institution, but who is obviously, while enjoying that privilege, still within the legal custody and under the control of the head of that institution. It would hardly be contended that such a prisoner would be entitled to any hearing because of a determination by the head of the institution that he was no longer entitled to privileges which he had previously been accorded as a trusty. Nor could it reasonably be contended that any court should be required to review such a determination in the absence of legislation specifically providing therefor. The convicted felon is such either by reason of his plea of guilty or by reason of the determination of a jury that his guilt has been proved beyond a reasonable doubt. He does not cease to be a convicted felon merely because he has been paroled.” (pp. 346-347, 142 N.E.2d 850)

In Varner parole was revoked even though an indictment which was the basis of a detainer placed against the parolee, had been dismissed.

Varner was approved and followed by the Supreme Court of Ohio in Bussey v. Sacks, 172 Ohio St. 392, 176 N.E.2d 220 (1961), Guerrieri v. Maxwell, Warden, 1 Ohio St.2d 75, 204 N.E.2d 60 (1965), State ex rel. London v. Ohio Pardon & Parole Comm., 2 Ohio St.2d 224, 208 N.E.2d 137 (1965), and Barnhart v. Maxwell, Warden, 2 Ohio St.2d 308, 208 N.E.2d 752 (1965).

It may be true, as the Supreme Court of Ohio suggested, that in Ohio the legislature, in granting broad discretionary powers to the Parole Commission, has shown far more concern for the protection, welfare and security of its inhabitants than for the temporary freedom on parole of a convicted felon. We know of no reason why it cannot do so.

Construing the Ohio parole statutes, the Supreme Court of Ohio in Varner has relegated the status of a parolee to substantially the same position as a “trusty”, who may “be allowed temporarily to leave the confines of the institution, but who is obviously, while enjoying that privilege, still within the legal custody and under the control of the head of that institution.” Id. 346. A trusty certainly cannot complain that his constitutional rights have been violated if his privileges are withdrawn. A parole in Ohio does not end the sentence.

Under Ohio law the “trusty” and “parolee” have privileges, not rights, until they have served their sentences. The Parole Commission may declare a prisoner, who has been paroled, a violator when in its judgment he has violated the conditions of his parole. The Commission has exercised its judgment in this case. It declared Rose a parole violator. It was not required to provide a hearing. None was requested.

The constitutional rights of Rose, which he claims were violated, apply prior to conviction. They are not applicable to a convicted felon whose convictions and sentences are valid and unassailable, and whose sentences have not been served. A state prisoner does not have a constitutional right to a hearing on a state parole revocation.

In 67 C.J.S. § 23 Pardons p. 619, the rule is stated:

“A parolee has no constitutional right to a hearing on the question of revoking his parole; and, in the absence of a statutory provision for notice and hearing, a parole may be revoked without such notice and hearing, whether authority to revoke is vested in the governor, the court or judge granting the parole, the board of parole, prison commissioners, or an adult authority.” (Footnotes omitted)

In 39 Am.Jur., page 525, it is stated;

A parole, especially such as is contemplated by most statutes providing therefor, is distinguishable from a pardon and from a conditional pardon. The parole intended by most of these statutes does not end the sentence, and, whatever may be the theory of a parole on general principles, those granted under some statutes do not even suspend the sentence. The prisoner is not a free man while out on parole, and he continues to serve time on his sentence until the expiration thereof. Parole statutes simply provide for a different manner of serving a sentence than by confinement in a prison. A power to pardon is something more than a power to parole or a power to release from servitude.” (Footnotes omitted)

Even in the federal parole system, where Congress has provided for a hearing in parole revocation proceedings, the hearing is limited and does not approach a judicial proceeding. Hyser v. Reed, 318 F.2d 225 (D.C.Cir., 1963).

The Supreme Court of the United States has held that the privilege of a probationer is not a right guaranteed by the Constitution, but “comes as an act of grace to one convicted of a crime and may be coupled with such conditions in respect of its duration as Congress may impose.” In the absence of statutory provision, the probationer is not entitled to a hearing on revocation. Escoe v. Zerbst, 295 U.S. 490, 492, 493, 55 S.Ct. 818, 819, 79 L.Ed. 1566 (1935); Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932). See also State ex rel. Harris v. Ragen, 177 F.2d 303 (7th Cir. 1949).

Jay v. Boyd, 351 U.S. 345, 76 S.Ct. 919, 100 L.Ed. 1242 (1956) involved denial of application for suspension of deportation without a hearing and the use of confidential information not disclosed to applicant. Mr. Justice Reed, in delivering the opinion of the Court, said:

“Like probation or suspension of criminal sentence, it ‘comes as an act of grace’, Escoe v. Zerbst, 295 U.S. 490, 492, [55 S.Ct. 818, 79 L.Ed. 1566,] and ‘cannot be demanded as a right’, Ber-man v. United States, 302 U.S. 211, 213, [58 S.Ct. 164, 82 L.Ed. 204]. And this unfettered discretion of the Attorney General with respect to suspension of deportation is analogous to the Board of Parole’s powers to release federal prisoners on parole.” (p. 354, 76 S.Ct. p. 924).

In Cafeteria and Restaurant Workers Union Local 473 v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961) the Court said:

“Where it has been possible to characterize that private interest (perhaps in oversimplification) as a mere privilege subject to the Executive’s plenary power, it has traditionally been held that notice and hearing are not constitutionally required.”

In Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959) the Supreme Court grounded its decision upon statutory interpretation and not on the Constitution.

In United States v. Sullivan, 55 F.Supp. 548 (D.C. E.D.Ill., 1944), Judge Lindley, in denying a petition for habeas corpus to review a state parole board’s order revoking parole, said:

“In disposing of this contention, we are not called upon to review the record of any judicial proceeding. We are confronted merely with the question of whether the state administrative body, endowed by statute with discretion to determine whether a parole should be granted, may, after having once acted favorably, thereafter revoke the earlier order and deny parole. In the performance of their duties, such administrative officers are called upon to exercise judgment and discretion, to investigate, deliberate and decide. People v. Joyce, 246 Ill. 124, and 135, 92 N.E. 607, 20 Ann.Cas. 472. The court’s jurisdiction and duties ended when the judgment was entered; thereafter the execution of the sentence was within the sole authority of the executive department of the state. The manner of executing the sentence and extension or mitigation of punishment are fixed by the legislative department and what it has determined must be put in force and effect by the administrative or executive officers in whom the power is lodged. People v. Joyce, supra. The administration of the parole law is the exercise, through the administrative department, of the state’s power to keep safely, supervise and discipline its prisoners. Such powers are not judicial but are matters of ‘prison discipline.’ People v. Joyce, supra.

“If the federal court were to review the discretionary acts of a state prison administrative body, then it would necessarily assume paramount power and authority over the state’s control of its prisoners. To do so is far beyond the review of judicial records, legitimately within the purview of a habeas corpus proceeding. I shall not embark upon such an undertaking. The jurisdiction to interfere with the proceedings of state governmental bodies charged with the prosecution and punishment of offenders is an exceedingly delicate one to be exercised with the greatest of care and nicest sense of propriety.” (pp. 550-551)

In Johnson v. Avery, 382 F.2d 353 (6th Cir., 1967) the reluctance of federal courts to interfere with state prison discipline was emphasized.

Our decision in Fleenor v. Hammond, 116 F.2d 982 (6th Cir. 1941) is inap-posite. That case involved revocation of a conditional pardon, not parole. A conditional pardon had been granted by a Governor of Kentucky and the pardon was revoked by his successor without notice or hearing. There were no statutory regulations in Kentucky governing the issuing of conditional pardons. After receiving the pardon, the convict was no longer in custody or under control of the state. While the granting of the pardon was an act of grace, yet, when it was granted, the convict acquired rights which could not be taken away from him without notice or hearing.

The Court of Appeals of Kentucky, in a case involving parole revocation, distinguished Fleenor and pointed out the fundamental differences between conditional pardon and parole in Mahan v. Buchanan, 310 Ky. 832, 221 S.W.2d 945 (1949). The differences were that parole in Kentucky was regulated by statute under which the prisoner at all times remained in the custody and under control of the state, and that he was not a free man but continued to serve his sentence until the expiration thereof. In reality, the parole statutes simply provided a different manner of serving a sentence than by confinement in prison.

The distinction between conditional pardon and parole is also made in 39 Am.Jur. § 11, at page 525, and was cited with approval by the Kentucky Court of Appeals. We must accept the decision of the highest court of Kentucky as declaratory of the law of that state on the difference between its procedures on conditional pardon and on parole. Fleenor v. Hammond, supra, at page 685.

We do not regard the recent decision of the Supreme Court in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) as throwing light on our. problem. In that ease sentencing in the state court had been deferred subject to probation. The case was still pending in the state court. The Supreme Court held that the defendant was entitled to counsel at the sentencing when probation was revoked.

In the present case, the sentencing had been completed in 1961 and 1963. Jurisdiction of the state court had terminated and Rose was in custody of the state prison authorities. No question is involved as to validity of the judgments of conviction or the sentencing. Involved here is not judicial power, but state prison discipline administered by the state parole board.

Since the habeas corpus petition did not state a claim upon which relief could be granted, it was not error for the District Court to dismiss it.

Appellee further contends that Rose did not exhaust state remedies available to him under Ohio’s new post-conviction statutes, Ohio Rev.Code §§ 2953.21 to 2953.24, inclusive, (Supp. 1966). An examination of these statutes reveals that they were designed to test the validity of a judgment of conviction and to vacate and set aside the sentence where the judgment was void or voidable. They do not confer jurisdiction to review orders of the state’s parole commission.

In our opinion, Rose has no remedy under Ohio law to review the order of the Parole Commission, as its order is final. In any event, by filing habeas corpus actions in the Court of Common Pleas, Court of Appeals, and the Supreme Court of Ohio, in which relief was denied, Rose exhausted whatever remedy the state provided.

If too much power over state prisoners has been confided to the Parole Commission by the legislature, the reformation should be made by the legislators and not by the courts. Federal Courts cannot be expected to remedy all ills, real or imaginary, in the state’s prison disciplinary procedures.

Affirmed.