Boddie v. Weakley
| Decision Date | 03 February 1966 |
| Docket Number | No. 10059.,10059. |
| Citation | 356 F.2d 242 |
| Parties | Elias BODDIE, Appellant, v. Kermit A. WEAKLEY and D. C. Board of Parole, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
J. Jay Corson, IV, Fairfax, Va., court-assigned counsel (Boothe, Dudley, Koontz, Blankingship & Stump, Alexandria, Va., on brief), for appellant.
MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, BOREMAN, Circuit Judge, and MARTIN, District Judge.
This District of Columbia prisoner now confined in Lorton Reformatory in Virginia attacks the fairness and adequacy of his mandatory release revocation hearing, pursuant to which he was recommitted to Lorton. The District Court dismissed the petition for a writ of habeas corpus, without a hearing, upon findings in accordance with summary statements in an affidavit attached to a return. We think there were factual questions requiring fuller exposition.
Boddie had been released from Lorton on February 24, 1961. The release was mandatory in light of the good time credits he had earned, but he was to remain under the supervision of the District of Columbia Board of Parole until September 29, 1962. On May 18, 1962, a warrant was issued by the Board for his arrest, but it was not executed until June 1, 1964. Under that warrant he was returned to Lorton where he was later called in for a hearing before the Parole Board.
In his petition, Boddie charged that he had requested an attorney to assist him in the revocation hearing and witnesses to testify in his behalf. He amplified the statement of his claim that he had requested a lawyer by alleging that his former employer had promised to procure a lawyer for his assistance and to appear as a witness to his good character.
The District Court required the Parole Board to file a return to the petition. The return incorporated an affidavit, in which it was stated that Boddie had been informed of his right to counsel and to present witnesses, that he had waived such rights and then had been afforded a hearing.
On the basis of the return, the District Court dismissed the petition. It was of the opinion that Boddie did not have a right to appointed counsel and it found, on the basis of the Parole Board's return, that Boddie had waived his right to counsel, as well as his right to present witnesses. It also expressed the view that it had no right to reject the Board's exercise of its discretionary powers of mandatory release revocation.
It is quite true, as the District Court stated, that there is no right of judicial review of a Parole Board's exercise of its discretionary powers. It is also true that we have held that a District of Columbia prisoner is not entitled to the services of appointed counsel in a routine parole revocation hearing.1 Under § 24-206 of the D.C.Code, however, he has a statutory right to the assistance of retained counsel, and there is a judicially enforceable right to fundamental fairness. The right to fairness includes the right to present the testimony of voluntary witnesses.2
A colorable claim of a deprivation of those rights is justiciable.3 That it is, is implicit in Jones v. Rivers, 4 Cir., 338 F.2d 862. Otherwise, we could never have met on its merits the claim of right to appointed counsel. Indeed, Judge Boreman explicitly stated that the right of fair and honest treatment at the hands of the Board is subject to judicial review,4 as had Judge Fahy in the similar case of Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 260.
If a probationer or parolee is entitled to judicial enforcement of such rights, certainly one released mandatorily is. He is not at large by the grace of the Board, and judicial enforcement of his rights in a revocation hearing would have no tendency to affect adversely a liberal functioning of the parole system.5 One released because the statute requires it, cannot be arbitrarily recommitted by a Parole Board, and, if he is, he has a judicial remedy.
We do not now suggest that a revocation hearing for one who was released mandatorily by force of the statute must incorporate adversary procedures inappropriate to a parole revocation hearing. Responsively to the suggestion that the controversy is not justiciable, we hold only that a claim, not patently frivolous, that one released mandatorily has been arbitrarily recommitted, is justiciable. When properly presented, such a claim requires judicial inquiry as to the fairness of the recommitment proceedings.
Here, the petitioner's allegations of a deprivation of his right to present witnesses constituted a valid claim for appropriate relief. So did his claim of a deprivation of a right of counsel, for it was coupled with an allegation that, with the assistance of his former employer, he might have obtained the services of a lawyer had the Board given him the opportunity.
The Board's return did not furnish a basis of dismissal. In conclusionary language, it alleged that Boddie had waived his rights to counsel and to witnesses. While under the oath of an administrative employee of the Board, the return could serve no other office than the framing of the factual issues, for the claim of waiver was, otherwise, wholly unsubstantiated. It was not supported by a transcript of the proceedings or by any concession of the petitioner. Under such circumstances, the Board's general, unsubstantiated assertion that it had treated the petitioner fairly could not obviate the necessity of a hearing on the petitioner's sworn allegations that it had not.6
If Rule 56(e) of the F.R.Civ.P. is not made inapplicable to habeas corpus proceedings in the District Courts by Rule 81(a) (2),7 it would not affect the result. Rule 56(e) of the F.R.Civ.P., as amended in 1963, deprives a party opposing a motion for summary judgment of the right to stand upon the general allegations of an opposing affidavit. The rule would have been appropriately applied here, if a transcript of the revocation hearing had been appended to the Board's return or extracts from it incorporated in its supporting affidavit. As it was, the affidavit disclosed no specific facts supporting or amplifying its general allegations that the prisoner had waived his rights and had received fair treatment. Under those circumstances, this unlearned, uncounseled prisoner should not suffer a procedural default because the more specific allegations of his complaint were not reiterated in an answering affidavit.
The transcript of the revocation hearing, produced in this Court for the first time, eliminates the necessity for a remand, however, for it clearly shows there was no fundamental unfairness in the revocation hearing and confirms the Board's allegations of waiver. Obviously, if the transcript had been before the District Court, it would have dismissed the petition, and dismissal would have been proper. Since we now make the transcript a part of the record, a remand would be fruitless.
The fact that Boddie did not know, in advance of the hearing, with what violations he was charged8 would give us great concern were it not for the combination of two circumstances. In the first place, after the charges were explained to him, he was clearly told that if he wished a lawyer or witnesses, the hearing would be postponed to permit him to obtain them. Boddie then explicitly stated that he wished to proceed with the hearing and that he waived his rights to counsel and to witnesses. In the second place, there was no critical factual dispute and no other element of unfairness.
Boddie had been conditionally released in February, 1961. Thereafter he worked in a succession of jobs as a janitor or building maintenance engineer. He was having relations with two women, however, and that kept him in difficulty.
In December, 1961, he forfeited bond on a disorderly conduct charge.
He purchased a second hand automobile, though one of the conditions of his release was that he not drive one. He was instructed by his parole officer to sell it, which he did, but then he acquired another, and, in April, 1962, forfeited $25 bond for having altered its license plates. Boddie claimed that one of his girl friends was the only one who had driven these two...
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...the states in every case to afford counsel to indigent parolees. In so holding, we adhere to our former decisions, Boddie v. Weakley, 356 F.2d 242 (4th Cir. 1966); Gaskins v. Kennedy, 350 F.2d 311 (4th Cir. 1962), and are in accord with the Third, Ninth and Tenth Circuits, Washington v. Hag......
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Tucker, In re
...voluntarily attend parole revocation hearings. (Londoner v. City of Denver, supra, 210 U.S. 373, 385--386, 28 S.Ct. 708; Boddie v. Weakley, supra, 356 F.2d 242, 244.) We believe that the Adult Authority does not afford parolees the 'opportunity to be heard' at a 'meaningful time.' Instead, ......
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Warren v. Michigan Parole Bd., Docket No. 6418
...Columbia.' Jones v. Rivers, 338 F.2d p. 875 (Boreman, J.). 17 Judge Haynsworth, speaking for the Court in Boddie v. Weakley (CA 4, 1966), 356 F.2d 242, 243, in an opinion also signed by Judge Boreman, described Jones v. Rivers as holding only that 'a District of Columbia prisoner is not ent......
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Scarpa v. US Board of Parole
...the issue at stake is the right of a prisoner to have his request for parole "considered". See, for instance, the case of Boddie v. Weakley, 4th Cir., 356 F.2d 242, in which, an opinion written by Chief Judge Haynsworth, the court said, with respect to a revocation proceeding, "It is quite ......