Cooper v. Lockhart

• Decision Date: 27 December 1973
• Docket Number: No. 73-1536 and 73-1584.,73-1536 and 73-1584.
• Citation: 489 F.2d 308
• Parties: Leroy C. COOPER, Appellant, v. A. L. LOCKHART, Superintendent of the Cummins Unit of the Arkansas Department of Corrections; Terrell Don Hutto, Individually and as Commissioner of Corrections for the State of Arkansas, Appellees. Harry L. WILLIAMS, Jr., Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Corrections, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

489 F.2d 308 (1973)

Leroy C. COOPER, Appellant, v. A. L. LOCKHART, Superintendent of the Cummins Unit of the Arkansas Department of Corrections; Terrell Don Hutto, Individually and as Commissioner of Corrections for the State of Arkansas, Appellees.

Harry L. WILLIAMS, Jr., Appellant, v. A. L. LOCKHART, Superintendent, Cummins Unit, Arkansas Department of Corrections, Appellee.

Nos. 73-1536 and 73-1584.

United States Court of Appeals, Eighth Circuit.

Submitted October 18, 1973.

Decided December 27, 1973.

John T. Lavey, Little Rock, Ark., for appellant in No. 73-1536.

Harry Williams, Jr., on brief, pro se in No. 73-1584.

Jim Guy Tucker, Atty. Gen., Little Rock, Ark., and Alston Jennings, Asst. Atty. Gen., on brief for appellees in Nos. 73-1536 and 73-1584.

Before LAY, BRIGHT and WEBSTER, Circuit Judges.

LAY, Circuit Judge.

A significant question in the corrections field is presented by these appeals. The fundamental issue is whether the punitive effects of a detainer, placed on a prisoner by the State of Arkansas because of a pending parole revocation in another state, may be continued when the latter state refuses to determine the question of revocation until the prisoner is released from his present confinement. The constitutional question posed is whether the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), as applied to parole revocation require a timely hearing and disposition by the parole state when the parolee is in the custody of another state.

JURISDICTION

The trial court based its jurisdiction on 42 U.S.C. § 1983. The court was troubled over the possible application of Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and whether petitioners' remedy lay in habeas corpus rather than under § 1983 of the Civil Rights Act. In view of the delay that would follow from state exhaustion, the district court determined that, even if the complaint was to be construed as a habeas corpus action, it would nonetheless exercise its jurisdiction. We find the reasoning of Rodriguez inapplicable and determine that the district court properly entertained the petitioners' claim under § 1983. Rodriguez requires a prisoner's claim which is premised on the loss of good time credit to proceed by habeas corpus under 28 U.S.C. § 2254 rather than under the Civil Rights Act. The reasoning of the Supreme Court is that loss of good time credit relates to custody rather than to conditions of confinement. Here the alleged constitutional deprivation relates to the conditions of a prisoner's confinement, cognizable under § 1983. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).

FACTUAL HISTORY

Plaintiffs, Leroy C. Cooper and Harry L. Williams, Jr., were both represented in the federal district court by the same counsel, Mr. John T. Lavey of Little Rock, Arkansas. Mr. Lavey appealed Cooper's case. Williams has filed his appeal pro se. The issues developed in the trial court are identical in both Cooper's and Williams' cases. However, the posture of Cooper's case has materially changed on appeal, and as a result his case must be dismissed as moot.

In 1968 Cooper received a five-year sentence in the State of Missouri and was subsequently paroled in 1970. A short time later he was convicted of a felony in the State of Arkansas and confined to the Arkansas State Prison. The State of Missouri on October 21, 1970, issued a parole violation warrant against Cooper. On March 16, 1971, the State of Arkansas placed a detainer against Cooper in favor of "Jefferson City, Missouri for Parole Violation." The detainer placed against Cooper was not based on the Arkansas felony conviction but on other factual grounds.¹ On April 30, 1973, Cooper wrote a letter to the Missouri Board of Parole requesting a revocation hearing within 60 days. On May 7, 1973, a Board member advised him that no revocation hearing could be held until he was released from the Arkansas prison and returned to Missouri. On June 14, 1973, petitioner filed an amended complaint alleging inter alia the detainer placed on him was illegal since the State of Missouri had refused to give him a revocation hearing within a reasonable time.² The state answered that the court lacked jurisdiction since the State of Missouri was not before the court and was an indispensable party.

The district court pointed out that the State of Missouri was not a necessary party to the suit; that it would allow the State of Missouri to intervene but Missouri never made any request to do so. The court found that if the petitioner was entitled to relief, it could be obtained by operation of the court's decree on the parties before it. These defendants are Terrell Don Hutto, Commissioner of the Arkansas Department of Correction and A. L. Lockhart, Superintendent of the Cummins Prison Unit in Arkansas, where Cooper was then incarcerated and Williams is still confined.

The factual details of Williams' case are not as fully developed in the record; however, the trial court found the issues to be identical to Cooper's. The record does disclose that Williams was a parolee from the State of Michigan when subsequently convicted of a felony in the State of Arkansas. Thereafter, the State of Michigan requested a detainer with the State of Arkansas for possible parole revocation and requested that it be notified when Arkansas released Williams. Williams alleges, in his pro se brief, that in April of 1973, the Michigan Board of Parole informed the Attorney General of Arkansas that it would not give Williams a parole revocation hearing until he was released by Arkansas. In addition, we also rely on the trial court's assumption that Williams has demanded a speedy hearing in Michigan and that the same was denied. The trial court additionally found that neither Cooper's nor Williams' parole had been actually revoked at the time of its opinion.³

At this juncture, we come back to our earlier assertion that Cooper's posture on appeal is materially different. The trial court noted that Cooper would be eligible for release from the Arkansas Penitentiary on October 28, 1973. This appeal was argued in early October and we requested the parties to inform this court as to the possible release of Cooper at that time. We have now received a letter from the Assistant Attorney General of the State of Arkansas, Alston Jennings, Jr., that Cooper was in fact released from Arkansas custody on October 26, 1973, to the Missouri authorities on the basis of the detainer. Upon these facts, we find that Cooper's case is moot and must accordingly be dismissed. Williams' minimum release date from the Arkansas prison is November 8, 1975; thus his case still presents a viable issue.

The determination of mootness in Cooper's case helps crystallize the jurisdictional basis and the actual issue before us. It is apparent that the district court, in dismissing both complaints, viewed this case in terms of whether the Missouri authorities must grant Cooper, and whether the Michigan Board of Parole must grant Williams, a "speedy trial" in the form of a revocation hearing. On this basis the district court properly analyzed Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), and Braden v. 30th Judicial Cir., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973), and found that the Sixth Amendment guaranteeing the right to a speedy trial⁴ was limited to "another pending criminal charge" and not to a parole revocation warrant. See also Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

We view the issue to be much broader. The issue before us is whether the custodial state may be required to remove the harmful consequences which flow from the detainer if a parole revocation hearing is not granted while the prisoner remains in its custody. It is significant that it is the custodial state which places the detainer on the prisoner, not the state which makes the request for one. We know of no legal obligation on the custodial state to place a detainer on the prisoner because of the issuance of a parole violation warrant by another state.⁵ Even if there is, the fact that the custodial state cooperates with the requesting state in turning the prisoner over at release is not the thrust of the attack. The relief sought is from the alleged punitive consequences which surround the prisoner in his day-to-day imprisonment in the custodial state when a detainer is placed upon him. Thus, we conclude that Cooper's release by Arkansas on October 28, 1973, now removes him from the restrictions imposed by the Arkansas authorities by the detainer. However, as indicated, this is not so as to Williams.

DUE PROCESS AS APPLIED TO PAROLE REVOCATION

We therefore move to the issues as they relate to Williams. First, we are faced with the fundamental question of whether there exists in the circumstances presented a denial of due process. We find there is. The law is now established that due process is required in parole revocation proceedings. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The issue is then simply whether there should exist an exception for a parole violator who is incarcerated in another state.

The district court reasoned that the applicability of Morrissey was not before it since the due process requirements applied only to the state which must hold the parole revocation hearing. The court found that the requirements of Morrissey come into play only at such time as the petitioner is brought before a Board of Parole for a revocation hearing. Thus, the district court reasoned the questions of notice, opportunity to be heard, and determination by a fair fact finder are issues over which the defendants in the present case can have no control.⁶ First, it is important to recognize that Morrissey contemplates that...