Richard C. Hyler v. U. S. Board of Parole

Fifth Circuit

Richard C. Hyler v. U. S. Board of Parole

447 F.2d 957

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 15, 1971

Docket71-1821

StatusPublished

Cited by1 cases

This text of 447 F.2d 957 (Richard C. Hyler v. U. S. Board of Parole) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Richard C. Hyler v. U. S. Board of Parole, 447 F.2d 957 (5th Cir. 1971).

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PER CURIAM:

This appeal is taken from an order of the District Court denying the petition of a federal prisoner for a writ of ha-beas corpus. We affirm.

On November 17, 1970, the appellant was taken into custody on a warrant for violating the terms of his mandatory release from a federal sentence. On March 23, 1971, appellant filed his ha-beas petition seeking his immediate release on grounds that he had been denied counsel throughout the revoeation-of-release proceedings; he had been denied bail; and there had been an unreasonable delay in convening the revocation hearing.

The District Court found that a revocation hearing had been scheduled for February 18, 1971, but shortly before the hearing appellant requested that counsel be appointed to assist him, which motion was granted on February 11, 1971. To enable counsel to prepare properly, the hearing was postponed. The District Court found that the delay from arrest to February 18, 1971, was “unnecessarily long,” but that appellant had not shown that he had been prejudiced by the delay. The Court directed that a revocation hearing be held within thirty days of that order, filed March 23, 1971. That hearing was held on April 19, 1971, with appellant represented by court-appointed counsel. A decision revoking his mandatory release was issued on May 13, 1971.

We affirm the conclusion of the District Court. The right to a prompt revocation hearing has been analogized to the right to speedy trial. United States ex rel. Buono v. Kenton, 2 Cir., 1961, 287 F.2d 534. We are not able to say that appellant’s incarceration prior to hearing was oppressive, even though longer than it should have been. Cf. Smith v. Hooey, 1969, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607; United States v. Ewell, 1966, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627. In reaching that conclusion we bear in mind that appellant’s challenge to the delay came after the revocation was further delayed by appellant himself. Clearly appellant was not entitled to immediate release. See Cotner v. United States, 10 Cir., 1969, 409 F.2d 853; Letellier v. Taylor, 10 Cir., 1965, 348 F.2d 893; United States ex rel. Buono v. Kenton, supra.

Affirmed.

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PER CURIAM:

This appeal is taken from an order of the District Court denying the petition of a federal prisoner for a writ of ha-beas corpus. We affirm.

On November 17, 1970, the appellant was taken into custody on a warrant for violating the terms of his mandatory release from a federal sentence. On March 23, 1971, appellant filed his ha-beas petition seeking his immediate release on grounds that he had been denied counsel throughout the revoeation-of-release proceedings; he had been denied bail; and there had been an unreasonable delay in convening the revocation hearing.

The District Court found that a revocation hearing had been scheduled for February 18, 1971, but shortly before the hearing appellant requested that counsel be appointed to assist him, which motion was granted on February 11, 1971. To enable counsel to prepare properly, the hearing was postponed. The District Court found that the delay from arrest to February 18, 1971, was “unnecessarily long,” but that appellant had not shown that he had been prejudiced by the delay. The Court directed that a revocation hearing be held within thirty days of that order, filed March 23, 1971. That hearing was held on April 19, 1971, with appellant represented by court-appointed counsel. A decision revoking his mandatory release was issued on May 13, 1971.

We affirm the conclusion of the District Court. The right to a prompt revocation hearing has been analogized to the right to speedy trial. United States ex rel. Buono v. Kenton, 2 Cir., 1961, 287 F.2d 534. We are not able to say that appellant’s incarceration prior to hearing was oppressive, even though longer than it should have been. Cf. Smith v. Hooey, 1969, 393 U.S. 374, 378, 89 S.Ct. 575, 21 L.Ed.2d 607; United States v. Ewell, 1966, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627. In reaching that conclusion we bear in mind that appellant’s challenge to the delay came after the revocation was further delayed by appellant himself. Clearly appellant was not entitled to immediate release. See Cotner v. United States, 10 Cir., 1969, 409 F.2d 853; Letellier v. Taylor, 10 Cir., 1965, 348 F.2d 893; United States ex rel. Buono v. Kenton, supra.

Affirmed.

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