Pickens v. Butler

814 F.2d 237
Court of Appeals for the Fifth Circuit·Decided April 14, 1987·No. No. 86-3354·Published·Cited by 13 cases

Opinion

W. EUGENE DAVIS, Circuit Judge:

Thomas Pickens appeals from the district court’s denial of his application for writ of habeas corpus. We affirm.

[238] I.

Thomas Pickens was paroled from the Louisiana Department of Corrections in May 1971. A short time later, Pickens left Louisiana and traveled to California without informing parole authorities of his whereabouts.

In January 1977, Pickens was arrested under an assumed name in California for armed robbery and assault. When the Louisiana authorities were notified of Pick-ens’ arrest, they forwarded a warrant to California seeking his arrest for parole violations. This warrant was lodged as a detainer against Pickens; Pickens was later convicted in California and sentenced to a term of incarceration.

On July 16, 1979, while Pickens was still incarcerated in a California prison, a preliminary hearing was held on the Louisiana parole violation charge. Pickens received notice of the charge and was present at the hearing. At this hearing, Pickens admitted that he had fled Louisiana while on parole and been convicted of felonies in California; the California hearing officer found probable cause to believe Pickens had violated the. conditions of his Louisiana parole.

The record of the California hearing was forwarded to the Louisiana Board of Parole (Board) which, on June 9, 1980, acting on the authority of its own regulations, automatically revoked Pickens’ parole without a further hearing. Pickens was notified of this decision by letter. California later released Pickens to the Louisiana authorities on June 29, 1982, and he was reincarcerated in Louisiana on July 21, 1982.

After exhausting his Louisiana habeas remedies, Pickens began this federal habeas proceeding in the district court. The district court referred Pickens’ petition to a magistrate for decision after both parties consented to the reference. The magistrate found that the June 9, 1980 parole revocation was a nullity because the state failed to give Pickens the due process required by the Court in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 848 (1972). The magistrate granted the writ but stayed its issuance for thirty days to give Louisiana an opportunity to conduct a final revocation hearing.

Pickens appealed to the district court the portion of the magistrate’s order staying issuance of the writ; Louisiana took no appeal. The district court agreed with the magistrate that the writ should issue unless the state conducted a hearing. The district court remanded the case to the magistrate so that if the state granted a hearing, the magistrate could determine whether the delay in holding the final hearing was unreasonable and whether Pickens had been prejudiced by this delay.

The Board gave Pickens a final revocation hearing on October 23, 1985. Pickens received oral notice of the hearing and was present. Pickens was informed that he had violated his parole conditions because of his California felony convictions and his unauthorized departure from Louisiana. Pick-ens did not respond to these charges and the Board revoked his parole.

On remand, the magistrate determined that: (1) the delay in holding the final revocation hearing on October 23, 1985, was unreasonable; (2) Pickens had been prejudiced by this delay; and (3) the final revocation hearing did not comport with due process. The magistrate then granted the writ. Louisiana appealed this order to the district court; the court disagreed with the magistrate on each of the above conclusions and reversed.

II.

This appeal presents the question whether the procedure Louisiana provided Pick-ens was constitutionally adequate under the teaching of Morrissey v. Brewer.

A.

Before the court announced its decision in Morrissey, most courts considered a parole revocation hearing a matter of legislative grace and not a procedure required by the constitution. Loper v. Beto, 440 F.2d 934, 941 & n. 20 (5th Cir.1971), vacated on other grounds, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972); Earnest v. Willingham, 406 F.2d 681, 682 (10th Cir.1969) (cit[239] ing Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L.Ed. 1566 (1935)). In Morrissey, the Supreme Court held that a parolee’s liberty “is valuable and must be seen as within the protection of the Fourteenth Amendment” and that its termination required “some orderly process, however informal.” 408 U.S. at 482. The Court required this informal process “to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee’s behavior.” Id. at 484, 92 S.Ct. at 2601 (emphasis added).

The court directed that hearings be held at two stages of the proceedings. First, a preliminary probable cause hearing was to “be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.” Id. at 485, 92 S.Ct. at 2602. Pickens received a preliminary hearing in accordance with these requirements and does not contest the adequacy or validity of that hearing.

Morrissey also requires the state to conduct a final revocation hearing within a reasonable time after the parolee is taken into custody. The purpose of this hearing is to give the parolee an opportunity to show that he did not violate parole conditions or if he did, that the violation does not warrant revocation. Id. at 488, 92 S.Ct. at 2603.

Pickens contends that the final hearing the state gave him in October 1985 was deficient in at least two respects; he argues that he received inadequate notice of the hearing and the state failed to conduct the hearing within a reasonable time after the state took custody of him. Before considering the adequacy of Pickens’ October 1985 hearing, however, we first turn to the threshold question of whether Louisiana was required to give Pickens a final hearing following his felony conviction in California; this presents the legal issue of whether Morrissey prohibits Louisiana from imposing a mandatory, automatic revocation of parole if the parolee is convicted of a felony?

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Pickens v. Butler
814 F.2d 237 (Fifth Circuit, 1987)