Bowen v. U.S. Parole Com'n

• Decision Date: 05 December 1986
• Docket Number: No. 85-5919,85-5919
• Citation: 805 F.2d 885
• Parties: Terry BOWEN, Plaintiff-Appellant, v. U.S. PAROLE COMMISSION and Robert J. Christensen, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 885

805 F.2d 885

Terry BOWEN, Plaintiff-Appellant, v. U.S. PAROLE COMMISSION and Robert J. Christensen,

Defendants-Appellees.

No. 85-5919.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 23, 1986.

Decided Dec. 5, 1986.

Terry Bowen, pro se.

Patricia Collins, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FARRIS, BEEZER, and BRUNETTI, Circuit Judges.

FARRIS, Circuit Judge:

The panel unanimously agrees that this case may be submitted without oral argument.

Terry Bowen was sentenced in federal court in 1971 to fifteen years' imprisonment for armed robbery, and released on parole in 1982. He had been free for approximately twenty-one months when he was arrested by the State of California on two counts each of assault and robbery. He was convicted and sentenced for the two robbery counts, the sentences to run consecutively. The assault charges were dismissed. Upon receiving notice of these violations of his parole, the United States Parole Commission placed a warrant as detainer against Bowen while he was serving his state sentences and executed it upon his release from state custody on January 16, 1984.

A hearing before the Parole Commission on March 7 considered whether Bowen's parole should be revoked. On March 20, the Commission notified Bowen that he would be required to serve all of the time remaining on his 1971 federal sentence, without credit for the time he had been free on parole, and that he would again be eligible for parole after 78-110 months less the twenty-one months he had already spent in state custody.

The regulatory provisions governing revocation of parole allow the Commission to give credit for "street time," which is time spent free on parole, when calculating the time remaining on a parole violator's original sentence. 28 C.F.R. Sec. 2.52(c). Under 28 C.F.R. Sec. 2.52(c)(2), however, this "street time" is forfeited where the violation of parole consisted of a conviction for any crime punishable by imprisonment.

In his petition for a writ of habeas corpus, Bowen's main contention is that he was not given adequate notice prior to the parole hearing that his state convictions could be used to deny street time. He argues that this is a violation of his right to due process, and that it conflicts with our decision in Vanes v. United States Parole Commission, 741 F.2d 1197 (9th Cir.1984).

Claims of constitutional violations by the Parole Commission are reviewed de novo. Wallace v. Christensen, 802 F.2d 1539, 1550 (9th Cir.1986). In reviewing a decision of the district court, we may affirm on any ground finding support in the record. Salmeron v. United States, 724 F.2d 1357, 1364 (9th Cir.1983).

ADEQUATE NOTICE UNDER VANES

In Vanes, Vanes' parole had been revoked shortly after he was arrested for excessive use of alcohol and assault on a police officer. Following acquittal on these charges, he received a notice of a rehearing of his parole action, based upon this "new information." At rehearing, Vanes' parole was again revoked on the basis of his excessive drinking, but he was denied credit for street time because of his conviction, a year and a half earlier, for driving while intoxicated. The notice provided no indication that the prior conviction would be raised against Vanes at the hearing. We reversed the denial of street time, holding that due process requires written notice to the parolee of the alleged violations prompting a revocation proceeding. Vanes, 741 F.2d at 1199-1200. We held further that "due process also requires that a parolee be informed of the charges' possible consequences," to allow the parolee sufficient time to prepare a defense to the charges or to marshal evidence in mitigation. Id. at 1202.

The written notice in this case meets the standard of Vanes. It informed Bowen that the robbery convictions and assault charges would be at issue in the revocation hearing. In addition it stated: "If revocation is ordered, the Commission will also determine whether to reparole you or to require service of all or any part of your violator term." This provided notice that Bowen might be required to serve all of the time remaining on his federal sentence, without credit for street time, as a consequence of his parole violations.

Because he was not aware that a prior conviction could be used against him, Vanes could not have known that he was faced with the loss of street time before the hearing. Only convictions can result in the denial of street time under 28 C.F.R. Sec. 2.52(c)(2). Vanes had good reason to believe that denial of street time would not be an issue at the hearing, and...