Brown v. Slayton, Civ. A. No. 71-C-19-C
| Decision Date | 15 December 1971 |
| Docket Number | Civ. A. No. 71-C-19-C,71-C-21-C. |
| Citation | 337 F. Supp. 10 |
| Parties | Johnny Mack BROWN v. A. E. SLAYTON, Superintendent, Virginia State Penitentiary. William Alexander MONROE and Johnny Mack Brown v. A. E. SLAYTON, Superintendent, Virginia State Penitentiary. |
| Court | U.S. District Court — Western District of Virginia |
Reno S. Harp, III, Asst. Atty. Gen., Richmond, Va., for respondent.
Pursuant to 28 U.S.C. § 2241, Johnny Mack Brown has petitioned the court for a writ of habeas corpus to terminate his alleged illegal confinement in the Virginia state prison system. The original petition was filed by Brown pro se in the United States District Court for the Eastern District of Virginia and was later transferred to this court. Brown subsequently filed with this court a second petition for a writ of habeas corpus by William Alexander Monroe, Relator; since the two petitions raised common issues of law and fact, they were consolidated for all matters relating to this proceeding by order dated November 2, 1971. Leave to proceed in forma pauperis has been previously granted.
Petitioner is currently detained pursuant to a judgment of the Circuit Court of Albemarle County imposed on December 16, 1969, in which petitioner was sentenced to a two year term in the Virginia State Penitentiary upon a conviction for forgery. Execution of the two year sentence had been suspended for a period of five years from December 16, 1969. Brown does not now attack the original conviction; rather he challenges the constitutional validity of the proceedings wherein the suspended sentence (probation) was revoked, for which he is presently serving the term imposed in the original judgment. Although the petitions lack clarity, it appears that several constitutional errors are alleged, to wit: (1) petitioner was denied the right to appear and to testify at the probation revocation hearing; (2) he was denied the right to counsel at the hearing; (3) the court failed to conduct a preliminary hearing; (4) he committed no acts sufficient to justify the revocation; (5) he was denied his right to appeal.
The difficulty in the instant case is that there were two probation revocation proceedings, and it is not entirely clear which petitioner attacks. Where feasible and proper the court will review both proceedings. On October 30, 1970, the first proceeding was held revoking the probation, although it appears that petitioner did not appear nor was he represented by counsel. Thereafter Brown pursued habeas corpus relief in the Circuit Court of Albemarle County, wherein he presented the same claims as those presented here. Pursuant to an answer filed by respondent through counsel, the order of October 30, 1970, was declared null and void on April 22, 1971; it was further ordered that the petitioner be detained for a reasonable period "pending a de novo hearing relating to revocation of probation". To the extent that the petitions attack the void probation revocation hearing of October 30, 1970, they must be dismissed as raising patently frivolous claim. The second revocation proceeding comprised two hearings, held on June 7 and July 15, 1971, in both of which petitioner was present, represented by counsel. Contrary to petitioner's intimations, it was proper for the circuit court to detain petitioner pending a second proceeding rather than to release him, so long as the original probationary period had not expired. Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969), cert. denied Cox v. Nelson, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970); see generally Cave v. Cunningham, 203 Va. 737, 127 S.E.2d 118 (1962).
Assuming that the petitions also attack the validity of the later hearings respondent argues that they should likewise be dismissed because petitioner has failed to exhaust his available state remedies and because the claims are frivolous. Petitioner claims that exhaustion would be futile in this case since he will have been released from the respondent's custody before the state courts can review the merits of his claims. Whether or not this time element is a proper justification for waiving the exhaustion requirement, 28 U.S.C. § 2254, the court feels that, under the particular circumstances of this case, the claims may properly be considered without requiring petitioner to first return to the state courts. It is well established that the exhaustion doctrine is not a jurisdictional limitation on the federal courts; it is based solely on comity and not on a want of power. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 873 (1963).
The court finds that the claims underlying petitioner's attack upon the hearings of June 7 and July 15, 1971, are without merit. In a proceeding to revoke probation, an accused is entitled to a judicial hearing at which he...
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Grueninger v. Director
...suspended sentence. Id (citing United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968); Williams, 378 F.2d at 666; Brown v. Slayton, 337 F. Supp. 10, 13 (E.D. Va. 1971)).Here, ample evidence supported the Circuit Court's conclusion that Grueninger violated both the letter and the spirit o......
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Cave v. Slayton, Civ. A. No. 72-C-62-H.
...state remedies. However, looking to the merits, this court has previously dealt with a probation revocation hearing in Brown v. Slayton, 337 F.Supp. 10 (W.D.Va.1971). This court stated, at 12, . . . In a proceeding to revoke probation, an accused is entitled to a judicial hearing at which h......
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