195 F.3d 732 (4th Cir. 1999), 96-7539, Hawkins v. Freeman

Docket Nº:96-7539 (CA-95-237).
Citation:195 F.3d 732
Party Name:IRVING HOUSTON HAWKINS, Petitioner-Appellant, v. FRANKLIN FREEMAN, Secretary for the North Carolina Department of Correction, J. V. TURLINGTON, Superintendent, Pender Correctional Institute, Respondents-Appellees. AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, INCORPORATED, Amicus Curiae.
Case Date:November 09, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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195 F.3d 732 (4th Cir. 1999)

IRVING HOUSTON HAWKINS, Petitioner-Appellant,

v.

FRANKLIN FREEMAN, Secretary for the North Carolina Department of Correction, J. V. TURLINGTON, Superintendent, Pender Correctional Institute, Respondents-Appellees.

AMERICAN CIVIL LIBERTIES UNION OF NORTH CAROLINA LEGAL FOUNDATION, INCORPORATED, Amicus Curiae.

No. 96-7539 (CA-95-237).

United States Court of Appeals, Fourth Circuit

November 9, 1999

Argued: June 9, 1999.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro.

Richard C. Erwin, Senior District Judge.

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COUNSEL ARGUED: Neal Lawrence Walters, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. Ralph S. Tyler, HOGAN & HARTSON, L.L.P., Baltimore, Maryland, for Amicus Curiae. Clarence Joe DelForge, III, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. ON BRIEF: Kelly M. Baldrate, Third Year Law Student, James D. Jones, Third Year Law Student, UNIVERSITY OF VIRGINIA SCHOOL OF LAW APPELLATE LITIGATION CLINIC, Charlottesville, Virginia, for Appellant. Maura L. DeMouy, Nicholas G. Stavlas, HOGAN & HARTSON, L.L.P., Baltimore, Maryland, for Amicus Curiae. Michael F. Easley, Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before WILKINSON, Chief Judge, WIDENER, MURNAGHAN, ERVIN,[*] NIEMEYER, HAMILTON, LUTTIG, WILLIAMS, MICHAEL, MOTZ, TRAXLER, and KING, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Phillips wrote the majority opinion, in which Chief Judge Wilkinson, Judge Widener, Judge Niemeyer, Judge Hamilton, Judge Luttig, Judge Williams, Judge Michael, Judge Motz, Judge Traxler and Judge King joined. Judge Murnaghan wrote a dissenting opinion.

OPINION

PHILLIPS, Senior Circuit Judge:

When officials of the North Carolina Parole Commission discovered that twenty months earlier they had mistakenly granted parole to Irving Houston Hawkins, a convicted habitual felon who was not at the time nor yet eligible for parole under applicable law, it revoked the parole and ordered Hawkins's re-incarceration. After unsuccessfully challenging this action in state court, Hawkins sought federal habeas corpus relief, claiming that his re-incarceration violated a liberty interest protected by the substantive component of the Fourteenth Amendment's due process clause. The district court rejected the constitutional claim and dismissed the habeas action. On Hawkins's appeal to this court, a divided panel reversed, holding that the State's action violated Hawkins's substantive due process right and ordering his release on the parole erroneously granted. 166 F.3d 267 (1999). On the State's suggestion, we vacated the panel opinion, reheard the appeal en banc, and now hold, affirming dismissal of the habeas action, that the State's act of revoking Hawkins's parole and re-incarcerating him violated no substantive due process right.

I

On February 27, 1981, Irving Houston Hawkins was convicted by jury trial in a North Carolina Superior Court of the sale and delivery of cocaine, possession with intent to sell cocaine, and--on the basis of previous felony convictions of rape and aggravated assault with intent to commit rape, and armed robbery--of being an habitual felon. He was sentenced to fifty years imprisonment on the sale and delivery of cocaine and habitual felon charges and to ten years on the possession with

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intent to sell cocaine charge. The ten-year sentence was to be served, along with sixty days on an earlier conviction for driving under the influence, concurrent with the fifty-year sentence. His ensuing confinement in the North Carolina prison system was his fifth in that system.

At the time of Hawkins's conviction, relevant state law required that habitual felons serve 75% of their sentences before becoming eligible for parole consideration. See N.C. Gen. Stat. § 14-7.6 (as of conviction date). Though this parole-eligibility provision was amended later in 1981 to reduce the time of required service before parole eligibility from 75% of sentence to a flat seven years, the amended version was effective only as to offenses committed after July 1, 1981. It is therefore undisputed that Hawkins's legally-prescribed parole eligibility date remained April 20, 2018.

Early in his confinement, Hawkins was, however, given inaccurate advice about his parole eligibility date by a member of the Parole Commission. In June, 1982, presumably acting on the basis of an internal memorandum in Commission files, then-Commissioner Walter T. Johnson, Jr. advised Hawkins by letter that the 75% rule of § 14-7.6 controlled his parole eligibility and that he would become eligible after 30 years of service on October 20, 2010. And, the letter alluded to the possibility that Hawkins "may" earlier have been advised of an even earlier date.

This mis-advice was later corrected by a letter of September 7, 1983, to Hawkins from a Staff Parole Analyst which correctly identified the parole eligibility date as April 20, 2018, and apologized for the "terrible disappointment" this correction would cause. Hawkins was therefore correctly informed as of September 1983 that under the 75% rule of pre-amendment § 14-7.6, he must serve thirty-seven and a fraction, not thirty, years of his fifty-year sentence before becoming eligible for parole consideration on April 20, 2018.

Some nine years later, after Hawkins had served almost eleven years of his fifty-year sentence, new confusion respecting his parole eligibility arose in the Parole Commission. In a letter dated March 13, 1992, a Parole Case Analyst advised Hawkins that he was being considered for "Intensive Community Service Parole" under the community service parole provision of N.C. Gen. Stat.§ 15A-1371. Here again, the underlying assumption that Hawkins was then (or ever) eligible for parole under this provision was simply wrong, as all parties now concede. The legally-imposed reality remained as it had been: Hawkins's parole-eligibility date remained that dictated by pre-amendment § 14-7.6, April 20, 2018.

Nevertheless, the Commission proceeded to consider Hawkins for community service parole under the inapplicable provisions of § 15A1371, and released him on its mistakenly assumed authority on July 6, 1992, after he had served almost eleven and a half years of his fifty year sentence. His release was recommended by a Parole Case Analyst who, after noting that there was "some concern as to Mr. Hawkins' release, due to . . . a past history of sexual assaultive behavior," cited as the basis for his recommendation the facts that during his imprisonment Hawkins had only four rule violations, none of which was assaultive; that he had a stable work history before his imprisonment; that while imprisoned he had earned by extension work a Bachelor of Science degree in business management from Shaw University; that there was a "prison crisis"; and that upon release Hawkins would be "placed on intensive supervision."

Upon his release, Hawkins lived by pre-arrangement with a brother in Greensboro, North Carolina, who had secured for him a job as fork-lift operator with the brother's employer, Cone Mills. Hawkins held the job regularly, with good performance evaluations, throughout his period of release. During that time, he violated no behavioral conditions of his parole, but

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did fall significantly behind on both the community service and monetary obligations of his special parole, to the point that the Commission threatened revocation of his parole--a threat that was, however, overtaken by more drastic developments.

On March 24, 1994, some twenty months after Hawkins's release, the Parole Commission's Manager of Combined Records, in the course of reviewing records, discovered the Commission's error in believing that Hawkins had been eligible for the community service parole granted him. She immediately notified the Commission's Chief of Operations, who the same day notified the Commission Chairman of the error and recommended that Hawkins's parole be "rescind[ed]" and that he be re-incarcerated. Acting on this recommendation, Commission officials that same day issued a certificate rescinding the 1992 parole order and a warrant for Hawkins's arrest. Hawkins was arrested on this warrant the next day, March 25, 1994, and re-incarcerated after waiving a preliminary parole revocation hearing.

Pursuant to statute, Hawkins was given notice of and afforded a formal hearing before the Commission on the question of his parole revocation. At the hearing on June 8, 1994, Hawkins was represented by counsel, former Parole Commissioner Walter T. Johnson, Jr., now an attorney in private practice. Before the Commission, the State simply presented the facts of its legal mistake in releasing Hawkins under the community service parole statute and attorney Johnson argued against revocation and for release on legal and humanitarian grounds. Following the hearing, the Commission deferred decision to allow Hawkins's counsel to file documentary materials supporting Hawkins's position. The supporting materials consisted essentially of affidavits documenting Hawkins's trouble-free time on parole and his favorable job evaluations, together with an attestation by Hawkins to his belief in his rehabilitation by reason of religious conversion. The State did not formally contest any of these submissions, continuing to rely simply on the fact that his release had not been authorized by law and that he had not yet completed service of his legally...

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