Drayton v. McCall

• Decision Date: 27 January 1978
• Docket Number: Civ. No. B-77-424.
• Court: U.S. District Court — District of Connecticut
• Parties: Robert DRAYTON, Petitioner, v. Cecil McCALL, Individually and in his capacity as Chairman, United States Parole Commission, Members of the Parole Commission, Individually and in their capacity as Members of the Parole Commission, Stanley B. Kruger, Individually and in his capacity as Parole Hearing Examiner, William L. Quirk, Individually and in his capacity as Parole Hearing Examiner, and Raymond Nelson, Warden, Federal Correctional Institution, Danbury, Connecticut, Respondents.

445 F. Supp. 305

Robert DRAYTON, Petitioner, v. Cecil McCALL, Individually and in his capacity as Chairman, United States Parole Commission, Members of the Parole Commission, Individually and in their capacity as Members of the Parole Commission, Stanley B. Kruger, Individually and in his capacity as Parole Hearing Examiner, William L. Quirk, Individually and in his capacity as Parole Hearing Examiner, and Raymond Nelson, Warden, Federal Correctional Institution, Danbury, Connecticut, Respondents.

Civ. No. B-77-424.

United States District Court, D. Connecticut.

January 27, 1978.

Judith P. Resnik, Jerome N. Frank, Legal Services Organization, New Haven, Conn., for petitioner.

Raymond L. Sweigart, Asst. U. S. Atty., New Haven, Conn., for respondents.

MEMORANDUM OF DECISION

DALY, District Judge.

The issue in this habeas corpus action is the continued validity of the District of Connecticut rule mandating that the United States Parole Commission (the Commission) provide the due process safeguards of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), in parole rescission hearings. This rule, originally established in Williams v. U. S. Board of Parole, 383 F.Supp. 402 (D.Conn.1974), was later reaffirmed in light of Woff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Metz v. Norton, B-74-89 (D.Conn. 1976). The Commission argues that the due process analysis utilized by the Supreme Court in Morrissey and Gagnon is outdated, and that under the new Supreme Court analysis this petitioner has only a minimal due process interest because the discretion exercisable by the Commission in rescinding parole is so broad as to make the expectation of future liberty unjustified. See Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976); Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976); Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976); Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). Because of the grievous impact of parole rescission upon the parole grantee, the limited factual predicates upon which parole may be rescinded, and the important contributions that Morrissey and Gagnon protections make to the parole decision-making process, this Court holds that Morrissey-Gagnon procedures are still required for parole rescission hearings.

FACTS

On October 20, 1977, the Commission held a regular review hearing concerning the petitioner's eligibility for parole. On October 31, the Commission decided to grant the petitioner parole effective February 14, 1978. On November 7, 1977, before petitioner received notification of the parole grant, the Bureau of Prisons informed the Commission that the petitioner had forfeited twenty-five days of statutory good-time for institutional misconduct. As a result, the Commission decided to reopen the petitioner's case and schedule him for a rescission hearing on the next available docket. The petitioner was informed both of the original decision to parole and of the decision to reopen by Notices of Action dated November 8, 1977.

On December 16, 1977, the Commission held a rescission hearing in accordance with the procedures outlined in the Commission regulations, 28 C.F.R. § 2.34 (1977).¹ Under these regulations, the inmate must be given notice of the charges of misconduct to be discussed at the hearing, and, if the parole is rescinded, a written statement of the findings of misconduct and the evidence relied upon by the Commission. He is allowed to present only documentary evidence, and may be represented by a person of his choice. 28 C.F.R. § 2.34(a)(1). The representative's participation, however, is restricted to a short statement at the conclusion of the interview conduct by the hearing panel, and to the provision of further information requested by the panel. 28 C.F.R. § 2.13 (1977). The parole grantee is not allowed to seek the advice of counsel during the hearing. Furthermore, confrontation and cross-examination is not permitted.

This procedure contrasts sharply with the due process protections mandated in Morrissey-Gagnon. In particular, Morrissey requires that the evidence against the inmate be disclosed, and that the parolee be allowed to present witnesses. The hearing procedures must also give the parolee the opportunity to confront and cross-examine adverse witnesses "unless the hearing officer specifically finds good cause for not allowing confrontation." Morrissey v. Brewer, supra, 408 U.S. at 489, 92 S.Ct. 2593. In Gagnon, the Supreme Court established a flexible right to appointed counsel in probation and parole revocation hearings. Refusing to find an absolute right to the assistance of an attorney, the Court indicated that such a right did exist in certain circumstances subject to the discretion of the correctional authorities. The individual must in all cases be advised of his limited right to counsel. If the individual requests counsel, and claims either 1) innocence of the alleged misconduct, or 2) the existence of substantial mitigating factors that are difficult to present, then the hearing officers have a presumptive duty to allow the participation of counsel. In addition, the authorities must consider the individual's ability to speak on his own behalf. Gagnon v. Scarpelli, supra, 411 U.S. at 790-91, 93 S.Ct. 1756.

During the December 16, 1977 "rescission hearing" held at the Federal Correctional Institution in Danbury, Connecticut, the petitioner's attorney requested that her client be accorded the due process rights of Morrissey-Gagnon as required by the District of Connecticut decisions in Williams v. U. S. Board of Parole, supra; Metz v. Norton, supra; and most recently in Green v. Nelson, 442 F.Supp. 1047 (D.Conn.1977). The hearing examiners indicated their familiarity with the constitutional rule articulated by that line of cases, yet they denied the petitioner's requests that he be afforded the mandated due process protections. One member of the panel caustically remarked: "This is the United States Parole Commission, not the Parole Commission of the District of Connecticut." Specifically, the petitioner's request that he be allowed to present witnesses on his behalf was denied. Although there is no indication in the record as to the identity of those witnesses whom the petitioner might have called in an attempt to rebut the findings of the prison officials, the petitioner has specified at least six witnesses, not including possible inmate witnesses, whom he intends to call if a new hearing is ordered.

In addition, the petitioner asserted his innocence of the charges that resulted in the forfeiture of statutory good-time, and detailed his version of a complex set of facts. The Institution Disciplinary Committee had concluded that the petitioner had used amphetamines while on furlough; a conclusion based upon the discovery of drug traces in a urine sample allegedly taken from the petitioner upon his return to prison. The petitioner argued before the Commission hearing officers that the positive urine sample was the result of either a laboratory error or the deliberate act of another made possible by the negligence of the staff in leaving the sample unsealed and unguarded for a few minutes in a location accessible to inmates returning from furlough or working nearby. Although these assertions were sufficient to invoke the right to counsel under Gagnon, the hearing examiners denied the petitioner's request for counsel's assistance during the proceeding.

As a result of the hearing, the petitioner was advised by a Notice of Action dated January 6, 1978 that he would have to remain in prison until his mandatory release date in June of 1978. The decision was based on the Commission's finding that the petitioner had used amphetamines while on furlough. The petitioner filed this petition for a writ of habeas corpus on December 22, 1977 challenging the validity of the Commission's decision because it was based on a constitutionally defective hearing.

DISCUSSION

The Government argues that the interest a parole grantee has in an effective release date is of a lesser order than the interest of a parolee in continued liberty, and that procedural protections less rigorous than those mandated by Morrissey-Gagnon are therefore required in rescission hearings. In particular, the Government asserts that the due process protections provided to inmates in prison disciplinary proceedings under Wolff v. McDonnell, supra, are sufficient, and that the Parole Commission is therefore entitled to rely on the findings of the prison disciplinary committee when considering rescission of parole.

A.

In evaluating the liberty interest to be protected, the Government claims that the Morrissey-Gagnon emphasis on the impact of revocation upon the individual has now been replaced in recent Supreme Court opinions by an emphasis on statutory or regulatory entitlements. However, the Supreme Court recognized the continued validity of Morrissey in Moody v. Daggett, supra, 429 U.S. at 86-87, 97 S.Ct. 274. What the Government portrays as a new theory of due process is merely a further refinement of the traditional analysis. The examination of the statutory or regulatory prerequisites to administrative action does not make an analysis of the impact upon the individual unnecessary. Rather, the entitlement analysis merely highlights the requirement that the expectations of the individual, an important consideration in measuring the impact of withdrawing future liberty through rescission or revocation, must be justified in order to qualify for procedural protections.

Because this Court considers the analysis of the protectable interests in Morrissey-Gagnon still valid, the reasoning and result of this district's decisions in Williams v. U....