Glenn v. Reed

Decision Date07 April 1961
Docket NumberNo. 16075.,16075.
Citation110 US App. DC 85,289 F.2d 462
PartiesHerbert GLENN, Appellant, v. George J. REED, Chairman, United States Board of Parole, et al., Appellees.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Howard P. Willens, Washington, D. C. (appointed by this court), for appellant.

Mr. Howard A. Glickstein, Atty., Dept. of Justice, of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Oliver Gasch, U. S. Atty., and Harold H. Greene, Atty., Dept. of Justice, were on the brief, for appellees. Mr. Carl W. Belcher, Asst. U. S. Atty., also entered an appearance for appellees.

Before EDGERTON, PRETTYMAN, and BAZELON, Circuit Judges.

Petition for Rehearing En Banc Denied May 10, 1961.

Petition for Rehearing Before the Division Denied May 12, 1961.

Chief Judge Miller and Circuit Judges Bastian and Burger would grant the petition.

EDGERTON, Circuit Judge.

In 1952 appellant was sentenced to prison by a United States court in Ohio. In 1955 he was released on parole. He was arrested October 30, 1958 as a parole violator and has since been imprisoned in Atlanta. The Board of Parole held a "hearing" on December 10, 1958 and revoked parole on March 13, 1959.

The government rightly concedes the hearing and revocation were invalid because appellant neither had nor was offered counsel. His subsequent imprisonment is therefore illegal. On May 12, 1960 he filed a complaint in the United States District Court for the District of Columbia asking for a declaration that the hearing was invalid and for a mandatory injunction ordering release. Thereupon an agent of the Parole Board offered him a new revocation hearing with counsel present. He declined this offer. On August 17, 1960 the District Court dismissed his complaint as moot. We allowed this appeal in forma pauperis.

We think the District Court erred. Lack of counsel at a revocation hearing is not made good by an offer of counsel 17 months later. The error of 1958 cannot be corrected, because the illegal imprisonment that resulted from it cannot be undone. If counsel had been present at the 1958 hearing as the law requires, there might have been no revocation of parole and no subsequent imprisonment.

Though it cannot undo the wrong, we think we should order appellant released. Cf. Moore v. Reid, 100 U.S.App.D.C. 373, 379, 246 F.2d 654, 660; Fleming v. Tate, 81 U.S.App.D.C. 205, 206, 156 F.2d 848, 849. The Board may afterwards issue a new...

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16 cases
  • Cole v. Holliday
    • United States
    • United States State Supreme Court of Iowa
    • October 14, 1969
    ...defendant is entitled to benefit of competent counsel. With more than a minimal degree of logic the court held, in Glenn v. Reed, 110 U.S.App.D.C. 85, 289 F.2d 462, 463, a hearing which resulted in revocation of probation was invalid where defendant neither had nor was offered assistance of......
  • Hyser v. Reed
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • April 11, 1963
    ...by counsel. His mandatory release was revoked on February 26, 1960. On May 10, 1961, following our holding in Glenn v. Reed, 110 U.S.App. D.C. 85, 289 F.2d 462 (April 7, 1961), he was offered a new hearing with counsel present. He did not accept the offer and filed a declaratory judgment ac......
  • Tucker, In re, Cr. 13489
    • United States
    • United States State Supreme Court (California)
    • June 24, 1971
    ...of Corrections (9th Cir. 1968) 401 F.2d 340, 342; Eason v. Dickson (9th Cir. 1968) 390 F.2d 585, 589 fn. 4; Glenn v. Reed (1961) 110 U.S.App.D.C. 85, 289 F.2d 462, 463; Freedman v. Looney (10th Cir. 1954) 210 F.2d 56, 57; Fleenor v. Hammond (6th Cir. 1941) 116 F.2d 982, 986.) Procedural due......
  • Pickus v. U.S. Bd. of Parole, 73-1987
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 10, 1974
    ...has ruled that at least retained counsel must be permitted at revocation proceedings. Compare, Hyser, supra, with Glenn v. Reed, 1961, 110 U.S.App.D.C. 85, 289 F.2d 462.9 The Section 4(a) exemption is by its terms from only the notice requirement, but Section 4(b) applies only if Section 4(......
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