Baker v. Sard

• Decision Date: 16 February 1972
• Docket Number: No. 22757,22758.,22757
• Citation: 486 F.2d 415
• Parties: Robert W. BAKER, Appellant, v. Thomas R. SARD and Donald J. Sheehy. Robert W. BAKER, Appellant, v. Thomas R. SARD, Chairman, Board of Parole, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

486 F.2d 415 (1973)

Robert W. BAKER, Appellant, v. Thomas R. SARD and Donald J. Sheehy.

Robert W. BAKER, Appellant, v. Thomas R. SARD, Chairman, Board of Parole, et al.

Nos. 22757, 22758.

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 1970.

Decided February 16, 1972.

Suggestion for Rehearing Granted April 14, 1972.

Argued on Rehearing May 31, 1972.

Order Granting Suggestion for Rehearing Vacated October 12, 1972.

On Panel Rehearing Decided August 27, 1973 and Judgment of February 16, 1972 Vacated.

W. Carter Bowles, Jr., Washington, D. C. (appointed by this court), for appellant.

Richard W. Perkins, Atty., Dept. of Justice, of the bar of the Supreme Court of Connecticut, pro hac vice, by special leave of court, with whom Thomas A. Flannery, U. S. Atty. at the time the briefs were filed, and John A. Terry and Nathan Dodell, Asst. U. S. Attys., were on the brief, for appellees.

Before FAHY, Senior Circuit Judge, and WRIGHT and ROBINSON, Circuit Judges.

Suggestion for Rehearing En Banc Granted April 14, 1972.

Argued on Rehearing En Banc May 31, 1972.

Order Granting Suggestion for Rehearing En Banc Vacated October 12, 1972.

PER CURIAM:

These parole revocation cases are back on appeal after remand to the District Court for the taking of evidence and the making of factual findings as to certain issues on appeal. The findings¹ of the District Court are not clearly erroneous and they dispose of most of the issues here. This opinion will therefore be limited to a consideration of these remaining issues: whether execution of the parole violator warrant was invalid as a matter of law, and whether the Board's failure to appoint counsel to represent appellant at the revocation hearing violated due process.

On October 28, 1955 appellant was sentenced to serve four to 13 years for housebreaking and larceny. On April 14, 1964, he was conditionally released from Lorton Reformatory pursuant to 18 U.S.C. § 4164 (1970), and the same day took a bus for California without reporting to the parole office in Washington, D. C. as he was required to do under the conditions of his release. On April 24, 1964 a warrant issued declaring him in violation of his conditional release. Despite efforts to locate and arrest him, appellant was not taken into custody under the warrant until May 7, 1968² in Redlands, California, one week after the 180-day terminal period provided in 18 U.S.C. § 4164³ had begun to run.

Relying on Birch v. Anderson, 123 U.S.App.D.C. 153, 358 F.2d 520 (1964), appellant contends that once the 180-day terminal period of his sentence began to run his freedom was unconditional, that he was no longer subject to the jurisdiction of the Board of Parole, and that consequently execution of the parole violator warrant one week after that time was invalid. In Birch the parole violation warrant was issued and executed during the 180-day period. Under those circumstances we did hold that the warrant was invalid, the Parole Board having lost jurisdiction over Birch at the beginning of the 180 days. Birch went on, however, to say:

"It might well be, as was said in Lavendera v. Taylor, 234 F.Supp. 703, 705 (D.Kan.), `a parole violator\'s warrant that is issued during the period of parole may be executed during the terminal 180-day period of the full sentence.\' Emphasis in the original. But that is not our case, though the warrant could have been issued prior to the beginning of the 180 days."

123 U.S.App.D.C. at 159, 358 F.2d at 526. In the present case the warrant was issued long before the 180-day period began to run and, absent an unreasonable delay in execution of the warrant, jurisdiction of the Board is continued at least during that period. See Tirado v. Blackwell, 5 Cir., 379 F.2d 619 (1967), cert. denied, 390 U.S. 992, 88 S. Ct. 1186, 19 L.Ed.2d 1301 (1968); Taylor v. Godwin, 10 Cir., 284 F.2d 116 (1960), cert. denied, 365 U.S. 850, 81 S.Ct. 814, 5 L.Ed.2d 814 (1961); Schiffman v. Wilkinson, 9 Cir., 216 F.2d 589 (1954), cert. denied, 348 U.S. 916, 75 S. Ct. 299, 99 L.Ed. 719 (1955).

The District Court found the Board's action here in locating appellant and executing the warrant reasonable, and we find no basis for disagreement. The delay in executing the warrant was not the fault of the Board. The facts as found show that appellant left this jurisdiction on the day of his release and, despite the customary steps taken to locate and arrest a fugitive, the warrant, although issued immediately, was not executed for over four years. Under the circumstances the running of the 180 days in no way affected the jurisdiction of the Board. Compare Castillo v. United States, 2 Cir., 391 F.2d 710 (1968).

Appellant also claims he was denied his constitutional right to counsel at the parole revocation hearing. This court, sitting en banc in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963), held that an indigent had no enforceable right, constitutional or otherwise, to have counsel appointed to represent him at such a proceeding Since Hyser the Supreme Court, in Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), has held that appointed counsel for an indigent is required at probation revocation proceedings, and the Second and Tenth Circuits have held that due process considerations require application of the rule of Mempa to parole revocation hearings as well. See United States ex rel. Bey v. Connecticut State Board of Parole, 2 Cir., 443 F.2d 1079, cert. granted, judgment vacated, and case ordered dismissed as moot, 404 U.S. 879, 92 S.Ct. 196, 30 L.Ed.2d 159 (1971); Earnest v. Willingham, 10 Cir., 406 F.2d 681 (1969). Thus it appears that the rule of Hyser may be significantly eroded.

The judges of this panel, two of whom participated in Hyser, are of the view that Hyser, insofar as it denies counsel to indigents at parole revocation hearings, is no longer in the mainstream of the judicial development of prisoners' rights and should be reconsidered by this court sitting en banc.⁴ Pending such reconsideration, we are constrained to apply its principles to this case.⁵

Affirmed.

APPENDIX A

ORDER

These causes came on to be heard on the records on appeal from the United States District Court for the District of Columbia, and were argued by counsel. On consideration thereof, it is

Ordered by the court that the records on appeal herein be remanded to the District Court for a hearing, including the taking of evidence, to determine:

1. Whether the four-year delay in executing the parole violator warrant was reasonable. In this connection, evidence concerning the steps taken by the United States in any attempt to execute the warrant should be received.

2. What conditions of release Baker was specifically informed of at the time of his release in April 1964.

3. Whether Baker's efforts to obtain counsel in connection with the hearing before the Board of Parole were obstructed by the prison authorities.

4. (a) Whether the Board of Parole considered the possibility of modifying the terms and conditions of Baker's parole, as provided in 24 D.C.Code § 206 (1967), instead of the action it did take in terminating his parole and reinstituting the remainder of his original sentence.

(b) If the Board did consider such alternatives, what the reasons were for its decision to reject them.

The Clerk of the District Court, following completion of the aforesaid remand proceedings, is directed to return to this court the records supplemented by the proceedings had on remand.

Per Curiam.

Dated: January 23, 1970

APPENDIX B

United States District Court for the District of Columbia

Robert Baker, Petitioner Civil Action v. No. 2582-68 Thomas R. Sard and Donald J. Sheehy, Respondents Robert W. Baker, Petitioner Civil Action v. No. 2520-68 Thomas R. Sard, Chairman, Board of Parole, et al., Respondents

FINDINGS OF FACT AND CONCLUSIONS OF LAW

These matters came before the Court pursuant to the Order of the United States Court of Appeals for the District of Columbia Circuit, filed January 23, 1970, in Nos. 22,757 and 22,758. This Court has held a hearing, on August 27, 1971, including the taking of evidence, at which plaintiff was present and was represented by counsel. The Court finds the facts and makes its conclusions of law, as follows:

Findings of Fact

1. Plaintiff was sentenced by this Court, on October 28, 1955 to a term of four to thirteen years for housebreaking and larceny. On April 14, 1964, plaintiff was conditionally released from Lorton Reformatory, to remain under the supervision of the District of Columbia Board of Parole until April 30, 1968. Exhibit 3.¹

"What conditions of release was Baker specifically informed of at the time of his release in April 1964?"²

2. On March 4, 1964, T. M. Webb, institutional parole officer at Lorton met with plaintiff to discuss plaintiff's April 1964 good time release plans. Webb reported that plaintiff was hostile to the good time release laws and contended that they are illegal. Webb further reported that he informed plaintiff that, if plaintiff left Lorton in April 1964, he would be accountable to the Parole Board, whether plaintiff cooperated or not. Exhibit 1.

3. On April 6, 1964, plaintiff was given his final instructions by Webb. Webb reported that plaintiff said he had read every law regarding Conditional Release, and that the Board had no authority over him. Webb asked plaintiff whether he had been told to report to the Washington Parole Office on the morning of his release. Plaintiff replied that he had been told, but was not saying he was going to report. Plaintiff stated that he was going to see a lawyer, and get an injunction against the Board. Exhibit 2.

4. The conditions of good time release were read and explained to plaintiff on April 6, 1964. They included the conditions:

1. That I will report immediately upon my release to the Washington Office of the

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