Shelton v. United States Board of Parole, 20591

• Decision Date: 01 November 1967
• Docket Number: 20686,20685,No. 20591,20823.,20687,20674,20591
• Citation: 128 US App. DC 311,388 F.2d 567
• Parties: Arthur SHELTON, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee. Harvey Marion BOSWELL, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee. Donald L. SMITH, Appellant, v. Hugh RIVERS, Chairman, District of Columbia Board of Parole et al., Appellees. Elbert Henry WHITE, Appellant, v. UNITED STATES BOARD OF PAROLE et al., Appellees. John L. JACOBS, Appellant, v. DISTRICT OF COLUMBIA BOARD OF PAROLE et al., Appellees. George L. WILLIAMS, Appellant, v. Paul H. PRESTON, Superintendent, District of Columbia Jail, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 311, 388 F.2d 567 (1967)

Arthur SHELTON, Appellant,
v.
UNITED STATES BOARD OF PAROLE, Appellee.
Harvey Marion BOSWELL, Appellant,
v.
UNITED STATES BOARD OF PAROLE, Appellee.
Donald L. SMITH, Appellant,
v.
Hugh RIVERS, Chairman, District of Columbia Board of Parole et al., Appellees.
Elbert Henry WHITE, Appellant,
v.
UNITED STATES BOARD OF PAROLE et al., Appellees.
John L. JACOBS, Appellant,
v.
DISTRICT OF COLUMBIA BOARD OF PAROLE et al., Appellees.
George L. WILLIAMS, Appellant,
v.
Paul H. PRESTON, Superintendent, District of Columbia Jail, Appellee.

Nos. 20591, 20674, 20685, 20686, 20687, 20823.

United States Court of Appeals District of Columbia Circuit.

Argued March 10, June 16, March 29, and June 27, 1967.

Decided November 1, 1967.

388 F.2d 568

COPYRIGHT MATERIAL OMITTED

388 F.2d 569

Mr. Jim W. Gipple, Washington, D. C. (appointed by this court), for appellant in No. 20,591

Mr. Edward T. Miller, Asst. U. S. Atty., with whom Mr. David G. Bress, U. S. Atty., Mr. Frank Q. Nebeker, Miss Ellen Lee Park and Mr. E. Grey Lewis, Asst. U. S. Attys., were on the brief, for appellee in No. 20,591.

Mr. Richard Shlakman, Washington, D. C. (appointed by this court), for appellant in No. 20,674.

Mr. Robert S. Brady, Sp. Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and E. Grey Lewis, Asst. U. S. Attys., were on the brief, for appellee in No. 20,674.

Mr. Joseph M. Snee, Washington, D. C. (appointed by this court), for appellants in Nos. 20,685-20,687 and 20,823.

Mr. Lee A. Freeman, Jr., Asst. U. S. Atty., argued for appellee in Nos. 20,685-20,687.

Mr. Joel Finkelstein, Washington, D. C., of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, argued for appellee in No. 20,823.

Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the briefs for appellees.

Mr. Nathan Dodell, Asst. U. S. Atty., was on the brief for appellee in Nos. 20,685-20,687.

Mr. Thomas Lumbard, Asst. U. S. Atty., was on the brief for appellee in No. 20,823.

Before WRIGHT, McGOWAN and LEVENTHAL, Circuit Judges.

THE PAROLE BOARD CASES.

MEMORANDUM BY THE COURT

In a group of cases decided today, we have pondered a number of problems that arise in the administrative process of the United States Board of Parole or

388 F.2d 570

the District of Columbia Parole Board, leading to a determination whether a parolee has violated his parole or mandatory release, and, if so, what action is appropriate. We provide herewith a prefatory memorandum relating the essence of our rulings

1. Where the parolee has been charged with committing a crime while on parole the Board retains jurisdiction if it acts timely in issuing its violator warrant¹ and notifying the parolee thereof (including notice that the warrant has been lodged as a detainer), although the Board defers consideration on its charge until completion of the criminal proceeding. Shelton v. United States Board of Parole, No. 20591, infra.

2. Where a warrant is timely issued charging a parolee with violating the terms and conditions of his release by misconduct other than the commission of a crime, the Board is obligated to hold a prompt hearing on the fact of violation even though the Board's jurisdiction survives intervening service of an unrelated criminal sentence. Where the parolee is prejudiced by the Board's failure to hold a prompt hearing, the parolee is entitled to an order of unconditional release. Boswell v. United States Board of Parole, No. 20681, infra.

3. Where the fact of parole violation has been conclusively established by an adjudication, either state or federal, that a criminal offense was committed during the release period, the parole violator is entitled to apply to the Board for immediate determination of the disposition to be made concerning the consequences of his parole violation, and to seek what is in effect concurrent service on all, or a part of, the unexpired portion of his original sentence with the sentence imposed for the criminal offense which constituted the parole violation. Smith v. Rivers, No. 20685, infra; Williams v. Preston, No. 20823, infra.

4. The Boards have recently issued new regulations — in lieu of informal procedures — concerning the processing and disposition of applications for withdrawal or execution of parole violator warrants prior to the expiration of the intervening sentence. Appeals not otherwise disposed of are remanded so that petitioners may pursue the administrative remedies provided in these regulations. Smith v. Rivers, No. 20685, infra.

5. Judicial review of the dispositional phase of parole revocation proceedings is available, if at all, only after the violator has pursued his administrative remedies. Smith v. Rivers, No. 20685, infra.

No. 20,591 Shelton v. United States Board of Parole

PER CURIAM:

Appellant was mandatorily released from federal custody pursuant to 18 U.S.C. §§ 4161, 4163, 4164 (1964). During the release period, he was arrested on a criminal charge and the Parole Board promptly issued its warrant charging a violation of the conditions of release. Appellant concedes that the violator warrant was timely issued. Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1965).

The warrant was initially lodged as a detainer to be executed following disposition of the pending criminal charge. Shelton has since pleaded guilty to that charge and has been sentenced to imprisonment. The Board's warrant is now lodged as a detainer pending completion of that sentence. Shelton contends that the Board has lost jurisdiction to execute the violator warrant. Birch v. Anderson, supra, is cited as authority for that contention.

Birch involved the very narrow question of the Board's jurisdiction to issue violator warrants. Reading 18 U.S.C. § 4164 (1964) together with 18 U.S.C. § 4205 (1964), we held that a warrant in the case of a mandatory releasee must issue before "the expiration of the maximum term or terms for which he was

388 F.2d 571

sentenced less one hundred and eighty days." More recently, we relied on 18 U.S.C. § 4207 (1964) to reject a contention that Birch deprived the Board of jurisdiction to enter a revocation order where the warrant was timely issued and executed, but revocation was delayed to await the outcome of pending criminal proceedings. Carswell v. Parker, 128 U.S.App.D.C. ___, 385 F.2d 645 (No. 20568, July 24, 1967). Today, we must decide whether, given timely issuance, Birch bars execution on jurisdictional grounds where the Board awaits the outcome of pending criminal charges, and any sentence imposed thereon. Appellant contends that the Board is ousted of jurisdiction. We reject this contention, hold that the Board retains jurisdiction, and affirm

In our view Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938), is controlling. There, Mr. Justice Black, writing for a unanimous Court, rejected a substantially similar argument on the theory that such a rule would preclude the Parole Board, in all cases, from imposing a sanction for violation of the terms and conditions of release. To ensure that this dispositional alternative remained available to the Board, the Court held that "service of the original sentence was interrupted by the parole violation." 304 U.S. at 362, 58 S.Ct. at 873.² Although the Supreme Court did not construe the statutes we found controlling in Birch, we think the rationale of Zerbst v. Kidwell is applicable. There is nothing in the plain language of the statutes that would compel us to uphold appellant's contentions and we think, as in Zerbst, it would require us to attribute an unreasonable intention to Congress in order to do so. This court has consistently rejected such arguments prior to Birch,³ as have the other courts of appeals.⁴ We have given the question careful reconsideration in light of Birch and find no reason to hold to the contrary.

Affirmed.

No. 20,674 Boswell v. United States Board of Parole

PER CURIAM:

Appellant sought declaratory and injunctive relief in the District Court contending that a violator warrant issued by the U. S. Board of Parole and then lodged as a detainer against him had, in fact and law, been executed. Appellant also complained that a delay in holding a preliminary interview or revocation hearing on the facts underlying the warrant had prejudiced him, contending that "unavoidable and extenuating circumstances * * * might well have benefited him in the disposition made by the Board of Parole" had a prompt hearing been held. The District Court granted appellees' motion for summary judgment. We reverse, having concluded that this case was inappropriate for summary disposition.

In 1958, appellant was sentenced to eight years imprisonment by the United States District Court for the Middle District of Alabama following conviction on a charge of possession of counterfeit federal reserve notes. In December of 1963, he was mandatorily released, and under the provisions of 18 U.S.C. § 4164, that release was the equivalent of a parole until the expiration of his Alabama sentence minus...