Barton v. Malley, 78-1531

• Decision Date: 16 July 1980
• Docket Number: No. 78-1531,78-1531
• Citation: 626 F.2d 151
• Parties: Jim Dean BARTON, Petitioner-Appellant, v. Clyde MALLEY, Warden; and Santos Quintana, Director Field Services Division, New Mexico Department of Corrections, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 151

626 F.2d 151

Jim Dean BARTON, Petitioner-Appellant, v.Clyde MALLEY, Warden; and Santos Quintana, DirectorField Services Division, New Mexico Department of Corrections, Respondents-Appellees.

No. 78-1531.

United States Court of Appeals Tenth Circuit.

Argued March 12, 1980.

Decided July 16, 1980.

Tova Indritz, Asst. Federal Public Defender, Albuquerque, N. M., for petitioner-appellant.

Andrea Buzzard, Asst. Atty. Gen., Santa Fe, N. M. (Toney Anaya, Atty. Gen., and Ralph W. Muxlow II, Asst. Atty. Gen., Santa Fe, N. M., on brief), for respondents-appellees.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

Jim Dean Barton(Barton) appeals the dismissal with prejudice of his petition for writ of habeas corpus.Barton is presently incarcerated in the New Mexico State Penitentiary.Exhaustion of available state remedies is not at issue.

Barton was originally convicted of armed robbery by a New Mexico state court in November, 1965.Prior to sentencing, he escaped from the San Juan County, New Mexico, jail.After his recapture, Barton was sentenced to confinement in the state penitentiary for a period of not less than ten years nor more than fifty years on the armed robbery conviction.Barton's trial on the jail escape charge resulted in a verdict of guilty, and the imposition of a one to five year sentence.

In March, 1970, Barton was paroled, institutionally, from the armed robbery sentence.He then began serving the escape sentence.Parole from the escape sentence, and release to the community, was granted effective January 4, 1971.Barton was released to the community on January 17, 1971.¹

Sometime in November, 1971, Barton was asked to speak about conditions at the New Mexico State Penitentiary by a prison reform group known as Citizens Concerned About Corrections.Barton attended the meeting, held on November 10, 1971, at the University of New Mexico Law School in Albuquerque, after obtaining permission to leave Santa Fe County from his parole officer.²Barton's speech was critical of the existing corrections system in New Mexico, and, as a result, highly publicized by the local media.

The speech caused various repercussions foremost of which, according to Barton was increased parole surveillance and, ultimately, the revocation of his parole and his reincarceration.The revocation occurred following Barton's involvement in a serious two car collision which occurred on the Cerrillos-Tijeras Highway (North State Road 14) near Cedar Crest, Bernalillo County, New Mexico.Barton sustained various injuries.The driver of the other vehicle was killed.At the revocation hearing, Barton admitted that he had been out of the county to which he was paroled (Santa Fe County) without his parole officer's permission, but he attempted to justify his actions.The New Mexico Parole Board revoked Barton's parole status solely on that basis.³

Following this revocation, Barton remained in the penitentiary until March, 1973, when he was reparoled.In February, 1974, Barton dropped out of classes at the College of Santa Fe, resigned from his employment and left the State of New Mexico.In April, 1974, Pennsylvania authorities detained Barton for extradition to New Mexico on the basis of a "Warrant for Paroled Prisoner".After lengthy extradition proceedings, he was returned to the New Mexico State Penitentiary as a parole violator on February 22, 1975.In March, 1975, a preliminary hearing was held on Barton's second parole revocation.The charges were failure to (1) obtain written permission before changing addresses or employment; (2) advise his parole officer of leaving employment; and, (3) submit monthly reports.Parole was revoked on March 26, 1974.He has been incarcerated continuously since that date.Barton has become eligible for parole, but has either been denied it or waived consideration of parole.

Barton filed his petition for habeas corpus relief in the District Court on December 23, 1976.He was represented by court appointed counsel and granted an evidentiary hearing.Central to his claims was the belief that the exercise of his First Amendment rights in criticizing the correctional system in New Mexico resulted in retaliation which ultimately led to his reincarceration.Specifically, Barton maintained that he was denied equal protection and due process of law (1) when the State of New Mexico selectively enforced its laws against him in retaliation for the exercise of his First Amendment right; (2) in the imposition and revocation of his parole; (3) in his extradition from Pennsylvania on a sentence which had already expired; and, (4) by the manner in which New Mexico computed his sentences.After a somewhat lengthy hearing, in which numerous witnesses were examined, the Magistrate assigned to the case filed proposed findings of fact and conclusions of law specifically treating each issue and generally concluding that:

11.From the preponderance of the evidence three obvious facts were established:

a. Petitioner was treated within constitutional limitations.

b. Petitioner's difficulties with the parole authorities were the result of his own doing.

c. Such "doings" reflect a deplorable waste of a superior intellect.

(R., Vol. I, p. 262).

In response to Barton's objections to the proposed findings and conclusions, the District Court conducted a de novo review as required by 28 U.S.C.A. § 636(b)(1).The Court adopted the findings and conclusions of the Magistrate, and dismissed the action with prejudice.⁴(R., Vol. I, p. 287).This appeal followed.The District Court issued a certificate of probable cause.

On appeal, Barton raises the same issues as those presented before the Magistrate and in the District Court: (1) impermissible selective enforcement by officials of the State of New Mexico; (2) due process of law violations which occurred during the imposition and revocation of his parole; (3) extradition proceedings held in Pennsylvania which deprived him of constitutionally secured rights; and, (4) the New Mexico Department of Corrections' constitutionally infirm method of determining the nature and length of his sentences.

Selective Enforcement Claims

Barton asserts that he was denied equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution, when officials of the State of New Mexico selectively enforced its laws against him.According to Barton,

(T)he reason for the selective enforcement . . . is clear and simple: Barton had exercised his constitutionally protected rights of freedom of association and freedom of speech.He attended a meeting of a group of citizens formed to learn about and correct injustices in the penal system of New Mexico.He spoke to his assembled fellow citizens about problems of which he had personal knowledge and which are generally shielded from the press and social view.That meeting received coverage in the written and electronic media. . . .Parole reports which had fairly glowed with reports of his academic excellence, his stable employment, and great potential for contributing to society, suddenly turned about-face.His parole officer began to search for violations in highly unusual ways: anonymous reports were received; newspaper clippings were included in his file.He was involved in an auto accident which was not his fault, but he was out of the county.Therein a pretext was found and his parole was revoked.And ever since Barton has paid an exorbitant price for the exercise of this con(s)titutionally protected rights.The toll was exacted not only in the parole revocation of 1972, but in the harassment during his second parole, in the bad faith shown in an extradition based upon a conviction already fully served, and in denial of access to parole files which contain damaging and false information.

(Brief of Appellantat pp. 24-25, 27).

A.

Nearly a century ago, the Supreme Court recognized that the administration of justice "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances" violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220(1886);Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446(1962).Cf.Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597(1976), Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884(1954)(proscribing similar action on the part of the United States Government).To allow the revocation of a previously granted parole status on the basis of arbitrary or irrational factors would alter the parole systems's purpose of helping individuals reintegrate into society as constructive members of the community, to one fostering personal abuse of governmental power.SeeUnited States v. Torquato, 602 F.2d 564, 568(3d Cir.1979), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307.The nature of the parole and probation system, however, requires that these limitations be applied only where necessary and where intrusion upon those officials' wide discretion is absolutely necessary.Federalism considerations demand this, where courts of the United States are called upon to determine delicate questions involving state decision making.

The "parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of his parole and whether the parolee should be recommitted either for his or society's benefits."Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668(1979)."The first step in a revocation decision thus involves a wholly retrospective factual question."Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484(1972).The second step, however, "is not purely...