Caton v. Smith, 72-1557.

• Decision Date: 03 October 1973
• Docket Number: No. 72-1557.,72-1557.
• Parties: Charles William CATON, Petitioner-Appellant, v. P. G. SMITH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

486 F.2d 733 (1973)

Charles William CATON, Petitioner-Appellant, v. P. G. SMITH, Warden, Respondent-Appellee.

No. 72-1557.

United States Court of Appeals, Seventh Circuit.

Heard September 13, 1973.

Decided October 3, 1973.

Michael B. Nash, Chicago, Ill., for petitioner-appellant.

Stanley B. Miller, U. S. Atty., Richard L. Darst, Asst. U. S. Atty., Indianapolis, Ind., for respondent-appellee.

Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.

PER CURIAM.

Petitioner is incarcerated in the Federal Penitentiary in Terre Haute, Indiana. In April 1972, he filed a petition for writ of habeas corpus based on alleged improprieties of the United States Parole Board in revoking his parole.

In 1967, petitioner had been imprisoned under an 8-year sentence for attempted bank robbery in violation of 18 U.S.C. § 2113(a). He was released on parole in December 1969. At that time, he subscribed to twelve conditions of parole. Conditions 8 and 11 are the pertinent ones and provide:

"8. You shall not enter into any agreement to act as an `informer\' or special agent for any law-enforcement agency."

"11. You shall not associate with persons who have a criminal record unless you have permission of your probation officer. Nor shall you associate with persons engaged in criminal activity."

On September 11, 1970, a parole violator's warrant application was issued, charging petitioner with violating his conditions of parole by (1) robbery and attempted robbery, (2) association with persons having criminal records, and (3) possessing a firearm. In the same month, a parole revocation hearing was held before Joseph E. Doneghy, an employee of the United States Parole Board. The evidence adduced at that hearing will be discussed infra. Petitioner's parole was revoked on September 25, 1970.

In his pro se petition for habeas corpus, petitioner complained that he had no attorney at his parole revocation hearing and that a very important witness in his behalf was not allowed to be heard. That witness was Hudson Olliff, then a lawyer and later a Jacksonville, Florida, judge. Petitioner wanted Olliff's testimony to show that he had advised petitioner to work as an informant with the Florida police while on parole. In part, the petition alleged as follows:

"While on parole in Jacksonville Florida, I was told by the local police that I must act as an informer. They threatened to send me back to prison if I did not help them. They even told me they had got the ok from the parole officer for me to do this. Then when I was arrested and there was a hearing, I found they had lied to me and had never got the ok from the parole officer."

"At the parole hearing, Captain Heard of the Jacksonville police admitted that he had falsely told me he had got the ok of the parole officer for me to do undercover work for the police."

In a brief memorandum opinion, the district court dismissed the petition, stating that the parole board had abundant evidence on which to base the revocation. Relying upon Morrissey v. Brewer, 443 F.2d 942 (8th Cir. 1971), reversed, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484, and similar precedents, the district court held that due process requirements do not extend to parole proceedings. We reverse.

In the brief filed here by seasoned appointed counsel, petitioner first asserts that he was entitled to due process protection in the parole revocation proceeding, particularly relying upon Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484. Although the due process requirements spelled out in that case were not made retroactive (408 U.S. at 490), our examination of this 1970 parole board proceeding satisfies us that minimal due process requirements were observed. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656, indicates that there is sometimes a right to counsel in parole revocation hearings, but we need not decide whether that case, like Morrissey, is prospective only, for at the commencement of this parole revocation hearing petitioner waived counsel. We also hold that petitioner was not deprived of a vital witness by the inability of Judge Olliff to appear before the parole board because his proposed testimony was merely cumulative.

Finally, we reach the question whether the parole board could properly revoke the parole on this record. The undisputed facts developed at the revocation hearing show that petitioner had been arrested in May 1970 by the Jacksonville, Florida, Police Department and charged with murder and robbery in connection with a Brink's armored car holdup. The arrest was based on an incorrect identification from an old photograph. While he was held in jail on the Brink's charge, Captain Heard and Sergeant Johnson of the Jacksonville Police Department visited petitioner and talked to him about cooperating with them in procuring evidence against one Jimmy Floyd Wright, a suspected burglar of supermarkets and a former acquaintance of petitioner. He told Heard that he was not guilty in the Brink's case. This was also Heard's view. Heard quoted petitioner as saying "he didn't want to get railroaded and he would cooperate with us in any way if he could get out on the street." At that time, Heard specifically solicited petitioner's help in tracking down Wright. Petitioner agreed to work with the police and was released on bond. Soon afterwards, the grand jury returned a no bill with respect to the Brink's charge. It seems likely that petitioner would not have agreed to act as an informant had it not been for the pending false charge.

Petitioner was told by Heard and Johnson that parole officer Cunningham had been told of the informer scheme and had approved it. Assistant State's Attorney Richardson also agreed to the scheme and said he would explain it to Cunningham. In truth, Cunningham was not advised of the agreement to have petitioner participate in Wright's robberies until after they occurred. In reliance on these statements, petitioner himself did not seek parole officer Cunningham's clearance.

Petitioner did not read the conditions of parole before signing the Certificate of Parole. He would not have agreed to cooperate with the Jacksonville Police Department if Cunningham had told him that this would be a violation of his parole. At first Wright did not trust petitioner and would not confide in him. Petitioner testified that he reported this to the police, and that "I said the only possible way would be to participate, to get involved with them. He Johnson said well that's what we...