Anderson v. Nelson

• Decision Date: 29 December 1972
• Docket Number: No. C-72-825 AJZ.,C-72-825 AJZ.
• Citation: 352 F. Supp. 1124
• Court: U.S. District Court — Northern District of California
• Parties: Paul Edward ANDERSON, Petitioner, v. Louis S. NELSON, Warden, Respondent.

352 F. Supp. 1124

Paul Edward ANDERSON, Petitioner, v. Louis S. NELSON, Warden, Respondent.

No. C-72-825 AJZ.

United States District Court, N. D. California,

December 29, 1972.

Ezra Hendon, Berkeley, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Ira J. Ross, Deputy Atty. Gen., San Francisco, Cal., for respondent.

MEMORANDUM OPINION AND ORDER SETTING EVIDENTIARY HEARING

ZIRPOLI, District Judge.

Petitioner Anderson, a state prisoner, originally filed this petition to challenge a 1970 redetermination of his sentence by the California Adult Authority, arguing that the procedure employed denied him due process of the laws. In a supplemental traverse—the first pleading filed by his court appointed attorney— petitioner also challenged the 1970 revocation of his parole.

Anderson was initially convicted for forgery (Calif.Pen.Code § 470), and pursuant to California Penal Code § 1168, the court sentenced him to be imprisoned without specifying a specific term to be served. Once imprisoned, petitioner came under the control of the California Adult Authority, which has broad authority to determine and redetermine petitioner's sentence within the statutory limits prescribed for the offense of forgery. Calif.Pen.Code §§ 3020, 3023. Until a shorter term was established, petitioner was presumed to be serving the maximum term allowed—fourteen years. See Calif.Pen.Code § 2940; In re McLain, 55 Cal.2d 78, 85, 9 Cal.Rptr. 824, 357 P.2d 1080 (1960), cert. denied, 368 U.S. 10, 82 S.Ct. 18, 7 L.Ed.2d 18 (1961). Petitioner's sentence was reduced to five years on December 11, 1968, by an Adult Authority order, and parole was granted for the last two and one-half years of the sentence.

On December 17, 1969, Anderson was paroled as planned. On May 15, 1970, however, he was declared a "Parolee at Large" and his parole was suspended, because investigation by his parole agent failed to verify that Anderson was residing at the addresses listed in his May, 1970, monthly report. As a result of Adult Authority Resolution 171,¹ this action also automatically revoked the earlier order of the Adult Authority fixing Anderson's terms to five years, so his sentence reverted to the fourteen year maximum. Petitioner was arrested June 9, 1970, and was then extradited to San Francisco to face charges of cashing a check without sufficient funds (Calif. Pen.Code § 476a). Anderson pleaded guilty, and was sentenced to four months in county jail. During this time, the Adult Authority again suspended petitioner's parole, and the Adult Authority also ordered that he be returned to prison for parole revocation proceedings. This action was taken on the basis of a parole agent's report, which charged Anderson with violating the conditions of his parole by: (1) committing a violation of Penal Code § 476a; (2) leaving his place of residence without his parole agent's permission; and (3) failing to submit a monthly report for June, 1970. The Adult Authority held a parole revocation proceeding on November 30, 1970, at which Anderson pleaded guilty to the first charge and was found guilty of the other two. As a result, his parole was revoked.

I. Challenge to the Parole Revocation

On September 13, 1971, the Adult Authority granted petitioner a second parole release date, and on June 8, 1972, he was paroled. Thus, petitioner no longer suffers any deprivation of liberty on account of the parole suspension and revocation orders of 1970, except as these orders affected the length of petitioner's sentence. The court, therefore, need not consider whether the parole revocation itself ought to be reversed on the basis of the rule announced in Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir. 1972).

II. Challenge to the Redetermination of Sentence

The substantial issue presented by this petition is whether petitioner was denied due process of the laws when his sentence was automatically redetermined at maximum following the suspension and revocation of his parole. This precise issue was considered in Hester v. Craven, 322 F.Supp. 1256 (C.D.Cal. 1971), vacated as moot, No. 71-1662 (9th Cir. August 26, 1971), and Judge Ferguson concluded that the Adult Authority Resolution 171 deprives California prisoners of their right to liberty without due process of the laws. As discussed in Hester, id., 322 F.Supp. at 1259-1261, Judge Browning's opinion in Sturm v. California, 395 F.2d 446, 449-450 (9th Cir. 1967) (Browning, J., concurring), the only Ninth Circuit opinion to consider the issue,² reached the same conclusion. Since these decisons were rendered, however, the Ninth Circuit, in the series of cases beginning with Dennis v. California Adult Authority,³supra, and the United States Supreme Court, in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), have clarified the due process requirements that must be met by administrative proceedings affecting prisoners' rights. Therefore, the court will consider the present case in light of the principles announced in these recent cases, rather than relying on Hester. But because Judge Ferguson's carefully written opinion foreshadowed the reasoning of the later Ninth Circuit and Supreme Court opinions, this opinion often relies upon the reasoning of Hester, and it largely agrees with Judge Ferguson's conclusions.

A. Refixing of Sentences and the Requirements of Due Process

Although sentencing is traditionally a judicial function, it is now clear that when the task is delegated to an administrative agency a defendant is not entitled to the full panoply of criminal rights. See Morrissey v. Brewer, supra at 480, 92 S.Ct. 2593; Dennis v. California Adult Authority, supra, 456 F.2d at 1241 n.1. Thus, the court cannot properly analogize the present case to the revocation of probation and the imposition of sentence by a judicial tribunal, where a defendant must be accorded several substantial rights, including the appointment of counsel. See Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Rather, the court must compare the refixing of sentence to other state action that condemns a person to "suffer grievous loss" of an interest within the contemplation of the "liberty or property" language of the Fourteenth Amendment. See Morrissey v. Brewer, supra, 408 U.S. at 481, 92 S.Ct. 2593; Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 168, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). In making this determination, it, of course, does not matter whether the governmental benefit taken away is best classified as a "right" or "privilege." See Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Goldberg v. Kelly, supra 397 U.S. at 262, 90 S.Ct. 1011.

Although it is improper to analogize the present case to a judicial criminal proceeding, it is not irrelevant that here we are considering the imposition of a longer period of imprisonment, traditionally a criminal penalty. When state action causes harm in the nature of a criminal sanction, the Supreme Court has regularly held that, although the loss is inflicted by an administrative agency or a court in a "civil" proceeding, the government must afford procedural due process. See Morrissey v. Brewer, supra; Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971); Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); Jenkins v. McKeithen, 395 U.S. 411, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969); In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967); Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967). The reason, as the Court explained in Gault, is basic to this country's idea of liberty:

Failure to observe the fundamental requirements of due process has resulted in instances, which might have been avoided, of unfairness to individuals and inadequate or inaccurate findings of fact and unfortunate prescriptions of remedy. Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise. As Mr. Justice Frankfurter has said: "The history of American freedom is, in no small measure, the history of procedure."

387 U.S. at 19-21, 87 S.Ct. at 1439 (footnotes omitted).

Because of the grievous loss of liberty that results from the redetermination of a sentence, and because the loss to a prisoner that results from a redetermination of his sentence to maximum is one that requires the application of due process principles, it does not matter that the judicially imposed sentence is not being extended. In Morrissey a major factor in the court's determination that due process applies to parole revocation was that a parolee must serve the remaining portion of their original sentence in prison, often a lengthy period of incarceration, if his parole is revoked. 408 U.S. at 482, 92 S.Ct. 2593. See also Specht v. Patterson, supra; In re Tucker, 5 Cal.3d 171, 193, 95 Cal.Rptr. 761, 486 P.2d 657 (1971) (Tobriner, J., concurring and dissenting). Regardless of the formal characterizations of the indeterminate sentence laws, the situation in the present case is similar; an increased period of incarceration results from the redetermination of a sentence. As Judge Browning explained in Sturm v. California Adult Authority, supra 395 F.2d at 449 (concurring opinion), the reality of increased incarceration cannot be ignored by giving talismanic effect to the judicially imposed maximum sentence.

The judicial imposition of a maximum sentence upon a prisoner is no more than a legislatively mandated device for transferring the sentencing function from the State court to the State administrative agency with a grant of jurisdiction over the prisoner's person for a period sufficiently long to enable the agency to

...