Moses J. Chilembwe v. Donald Wyrick, Warden

574 F.2d 985, 1978 U.S. App. LEXIS 11295

• Court: Court of Appeals for the Eighth Circuit
• Decided: May 8, 1978
• Docket: 77-1963
• Status: Published

Opinions

PER CURIAM.

Moses J. Chilembwe appeals from the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254, attacking the legality of the revocation of his probation. We affirm.

Chilembwe pleaded guilty to first degree robbery in the Circuit Court of St. Louis County, Missouri, on March 30, 1973, and was sentenced to eight years imprisonment. Sentence was suspended and Chilembwe was placed on five years probation.

On October 1, 1974, Chilembwe’s probation officer filed a violation report alleging that Chilembwe had violated four conditions of his probation by failing to obtain permission before leaving Missouri, failing to notify his probation officer of any change in his residence, using unprescribed narcotics, and failing to report regularly. On October 12,1974, Chilembwe was arrested in Clark County, Nevada. He challenged extradition proceedings and was not returned to Missouri until March of 1975. On June 6, 1975, a probation revocation hearing was held, probation was revoked, and the sentence of imprisonment was executed.

In his habeas corpus petition Chilembwe challenged the jurisdiction of the Missouri state court to enter the order revoking his probation and contended that the revocation proceedings violated his rights to due process in several respects. The district court dismissed the petition.

On appeal Chilembwe raises only one allegation of error that merits discussion.¹ He contends that he was denied due process of law because he did not receive a preliminary revocation hearing as required by the Supreme Court’s holding in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). It is undisputed that Chilembwe requested a preliminary hearing sometime after his arrival in Missouri but did not receive one.

The fundamental purpose of a preliminary hearing is to determine whether there is probable cause to believe that the detained probationer has committed acts which violate the conditions of his probation. Cf. Morrissey v. Brewer, 408 U.S. 471, 485, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).² This court holds that where obtaining permission before leaving the state is a condition of parole, a parolee’s presence in another state without such permission is sufficient probable cause to believe he committed an act which constituted a violation of his parole such that a preliminary probable cause hearing is not required. Stidham v. Wyrick, 567 F.2d 836 (8th Cir. 1977). This precedent controls our decision here since there are no differences relevant to due process between parole revocation and probation revocation. See Gagnon v. Scarpelli, supra, 411 U.S. at 782, 93 S.Ct. 1756. The judgment is affirmed.

1 . Moses J. Chilembwe continues to challenge the jurisdiction of the Missouri court to revoke his probation in light of his pending habeas corpus petition in the United States District Court for the District of Nevada. This contention is without merit. There is no doubt that once Chilembwe was before the Missouri court it had personal jurisdiction over him. See Bistram v. United States, 253 F.2d 610, 612 (8th Cir. 1958), quoted in Evans v. United States, 325 F.2d 596, 602 (8th Cir. 1963), cert. denied, 377 U.S. 968, 84 S.Ct. 1649, 12 L.Ed.2d 738 (1964). Chilembwe does not challenge the state court’s subject matter jurisdiction. His contention that the federal jurisdiction was obstructed or “usurped” by his removal to Missouri is frivolous since the Nevada federal court did exercise its jurisdiction.

We have also reviewed Chilembwe’s other due process contentions and find them to be without merit.

2 . In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) the Supreme Court was dealing with a parole violation. However, the same principles apply to probationers. See Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).