Murray v. Page

• Decision Date: 02 October 1970
• Docket Number: No. 6-70.,6-70.
• Citation: 429 F.2d 1359
• Parties: Joe David MURRAY, Petitioner-Appellant, v. Ray H. PAGE, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

429 F.2d 1359 (1970)

Joe David MURRAY, Petitioner-Appellant, v. Ray H. PAGE, Warden, Respondent-Appellee.

No. 6-70.

United States Court of Appeals, Tenth Circuit.

August 11, 1970.

Rehearing Denied October 2, 1970.

Livingston Hall, Cambridge, Mass. (L. E. Stringer and Clyde A. Muchmore, of Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Oklahoma City, Okl., were with him on the brief), for appellant.

H. L. McConnell, Asst. Atty. Gen. of Oklahoma (G. T. Blankenship, Atty. Gen. of Oklahoma, was with him on the brief), for appellee.

Before LEWIS, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

LEWIS, Chief Judge.

Petitioner, a state prisoner seeking relief by writ of habeas corpus filed under 28 U.S.C. § 2254, appeals from a judgment of the United States District Court for the Western District of Oklahoma summarily denying his application for failure to state a federal constitutional question. The case involves Oklahoma state parole procedures as applied to petitioner.

In 1948, Murray was convicted of a state kidnapping charge and sentenced to 25 years' imprisonment. He was paroled in 1957. In 1965, his parole was summarily revoked, without notice or hearing, by executive order. The relevant Oklahoma statute expressly provides for such summary revocation:

If a paroled convict shall at any time be guilty of a violation of any of the conditions of his parole, he may, upon the order of the Governor, be re-arrested and recommitted, without further proceedings, to confinement for the remainder of, and under the terms of, his original sentence. Okla.Stat. Ann. tit. 57, § 346 (1969).

Subsequently, Murray sought relief in state court and his challenge to the revocation proceedings was denied. Murray v. State, 444 P.2d 236 (Okl.Crim.), cert. denied, 393 U.S. 1059, 89 S.Ct. 702, 21 L.Ed.2d 701. The Oklahoma court held that revocation by the governor without notice or hearing violated no constitutional right claimed by Murray. That same court, however, a year later recognized the existence of federal constitutional over-tones in summary parole revocation proceedings and concluded that "the principles of fundamental justice and fairness" require that before revocation of parole a parolee should be advised "of the ground upon which revocation is sought and afforded a reasonable opportunity for a hearing on whether the conditions of the parole were in fact violated." Chase v. Page, 456 P.2d 590. The new Oklahoma procedure was given prospective application only and not mandated at all in so-called "clear" cases. Thus, the issues presented to us are two: Whether a state may, consistent with the due process clause of the fourteenth amendment, summarily revoke the parole status of a state convict without a hearing in any case and, if the state cannot so do, does the administration of justice require a retroactive application of such rule.

Relying principally upon Escoe v. Zerbst, 295 U.S. 490, 55 S.Ct. 818, 79 L. Ed. 1566, and its progeny, the appellee has argued that since parole is a privilege or grace given to a prisoner, its rescission is not protected by the fourteenth amendment. In Escoe, the Supreme Court did indeed refuse to accept a constitutional basis for arguably comparable rights and stated that

Probation or suspension of sentence comes as an act of grace to one convicted of a crime, and may be coupled with such conditions in respect of its duration as Congress may impose. 295 U.S. at 492-493, 55 S.Ct. at 819.

Although enunciation of this principle was in response to argument rather than dispositive of the case,¹ it has been determinatively applied by lower courts in subsequent cases. See, e. g., Rose v. Haskins, 6 Cir., 388 F.2d 91.

However, subsequent determinations of minimal due process standards by the Supreme Court have not embraced the theory proposed in Escoe. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L. Ed.2d 336, held that a probationer is entitled under the due process clause of the fourteenth amendment to be represented by counsel in a probation revocation hearing. The petitioner's probationary status — a matter of legislative grace — did not preclude inquiry into the substantiality of the rights possibly prejudiced by absence of counsel at this stage of the criminal proceedings. In like manner, due process protections have been extended to the welfare recipient. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, held that termination of welfare benefits must be preceded by notice of a fair hearing at which the recipient could appear, with counsel, and present and counter evidence. The recipient has no right to welfare payment, but due process was held to circumscribe summary termination of these benefits.

As these cases make clear, constitutional inquiry does not end by the easy assertion that the particular liberty involved is a privilege, enjoyed only through the grace of the sovereign. Of equal relevance is an assessment of the precise nature of the governmental action, which then must be balanced against the private interest affected by that action.

The interest of the individual parolee is obviously very great. He has been found guilty of a crime, deemed worthy of rehabilitation and consequently given the privilege of parole. Parole revocation therefore terminates a valued, if conditional, liberty; personal freedom — whether classified as a grace, privilege or as constructive custody — has been unalterably rescinded. "The right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (Frankfurter, J., concurring).

The governmental function involved in parole revocation does not require the interjection of the full panoply of procedural protections contemplated by the Constitution as applied in judicial proceedings. We have so held in Alverez v. Turner, 10 Cir., 422 F.2d 214:

A trial\'s adjudicatory process cannot be meaningfully equated with the type of fact-finding involved in parole revocations; * * * the due process clause of the fourteenth amendment does not generate rights to confrontation, nor to cross-examination or compulsory process * * * nor to the dual rights to witnesses under oath and evidence in conditional release hearings. 422 F.2d at 219 (citations omitted).

However, the right to appear and be represented by counsel has been extended, on grounds of equal protection, to both state and federal parolees. See Earnest v. Willingham, 10 Cir., 406 F.2d 681, and Duennebeil v. Turner, 10 Cir., 425 F.2d 1207 (1970). And as we recognized in Alverez, giving effect to the parolee's minimal rights of notice and opportunity to be heard does not serve to obstruct the administrative mission of the parole board:

In holding that appellees were not entitled to the specifics of due process available to an accused in the first instance, we in no way negate the right of appellees to enjoy due process as that mandate reflects the right of all persons to inherent fairness in all compulsive processes. The right of a prisoner to be heard at a revocation hearing is inviolative; so, too, is the right to know and be specifically informed of the charges and the nature of the

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