Drayton v. McCall

Decision Date02 October 1978
Docket NumberD,No. 1089,1089
PartiesRobert DRAYTON, Appellee, v. Cecil McCALL, Individually and in his capacity as Chairman, United States Parole Commission, Benjamin J. Malcolm, George J. Reed, Dorothy Parker, Joseph A. Nardoza, J. Robert Cooper, Robert Vincent, William E. Amos, Audrey A. Kaslow, 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, Appellants. ocket 78-2030.
CourtU.S. Court of Appeals — Second Circuit

Frederick E. Martin, Atty., Dept. of Justice, Washington, D. C. (Benjamin R. Civiletti, Asst. Atty. Gen., George W. Calhoun, Patrick J. Glynn, Attys., Dept. of Justice, Washington, D. C., of counsel), for appellants.

Robert Kochenthal, Student Law (Judith P. Resnik, New Haven, Conn., supervising), (Dennis E. Curtis, Judith P. Resnik, Mary F. Keller, Stephen Wisner, New Haven, Conn., of counsel), for appellee.

Before OAKES, VAN GRAAFEILAND and MESKILL, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents the questions whether the Due Process clause mandates procedural safeguards before the United States Parole Commission may rescind a prior grant of parole to begin In futuro and, if so, the extent of the safeguards mandated. The United States District Court for the District of Connecticut, T. F. Gilroy Daly, Judge, held that the procedures specified in Morrissey v. Brewer, 408 U.S. 471, 487-90, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 790-91, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), are similarly required in parole rescission hearings. Drayton v. McCall, 445 F.Supp. 305 (D.Conn.1978) (memorandum of decision). We agree that a federal prisoner whose date of parole has been approved but who has not yet been released from prison (a parole grantee) is entitled to procedural due process in his rescission hearing. However, we do not agree that all of the procedures mandated in parole and probation Revocation hearings must be complied with in parole Rescissions. We therefore modify the order below to provide for appellee's continued release on parole unless within thirty days the United States Parole Commission (Commission) conducts a hearing conforming with the procedural requirements of this opinion.


The facts of this case are not in dispute. Drayton was incarcerated at the Federal Correctional Institution in Danbury, Connecticut (Danbury), in connection with a conviction for unlawful distribution of narcotics. When he returned from a furlough on October 18, 1977, prison authorities took a routine urine sample and sent it to a laboratory for analysis. Two days later, at a previously scheduled parole hearing, the panel recommended his release on parole, effective February 14, 1978. The following day, October 21, the test results from the urine sample, which revealed the use of amphetamines, were returned to the authorities at Danbury. Prison officials then charged appellee with illicit use of narcotics and notified him of his right to an institutional disciplinary committee (IDC) hearing. This hearing was conducted by prison authorities (not the parole board) on October 28, 1978, purportedly in accordance with the dictates of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). The record indicates that a staff member represented appellee before the IDC. The committee found Drayton guilty as charged and ordered the forfeiture of twenty-five days' statutory good time without indicating the evidence relied upon or the reasons for disbelieving Drayton. Its report simply stated: "Reason for action taken: Seriousness of offense."

Apparently unaware of the IDC proceedings, the Parole Commission's Northeast Regional Office adopted the panel's recommendation and granted parole effective February 14, 1978. Before Drayton was formally notified in writing of the favorable parole decision, however, the Bureau of Prisons advised the Commission of the prison disciplinary action. On the basis of this new information, 1 the Commission then reopened the case on its own motion pursuant to 28 C.F.R. § 2.28 2 and scheduled a rescission hearing pursuant to Id. § 2.34. 3 Notices of action dated November 8, 1977 informed Drayton of the original parole grant and of the decision to reopen the case.

As found by the district court, Drayton v. McCall, supra, 445 F.Supp. at 306-07, the rescission hearing held on December 16, 1977, conformed to the procedures outlined in the Commission's regulations. See note 3 Supra. 4 Drayton's attorney, Ms. Resnik, requested that her client be accorded the due process rights of Morrissey, supra, and Gagnon, supra, in accordance with previous holdings of the District Court for the District of Connecticut. See note 10 Infra. The hearing examiners indicated at the outset that their practice pursuant to governing regulations is to ignore these constitutional rulings, and accordingly denied the request. 5

The only evidence presented against appellee was the IDC's finding of guilt, which under the regulations, 28 C.F.R. § 2.34(a)(2), could be considered conclusive on the question of institutional misconduct. Note 3 Supra. Drayton presented certain documentary evidence and was questioned by the examiners. He maintained that while on furlough with his family, he consumed only vitamin pills, as was the family's custom. He also explained that he and two other inmates gave urine samples at about the same time, under procedures which left open the possibility of confusion among or tampering with the samples. He emphasized that he had no history of amphetamine use, had already been accepted by and received a grant from a community college, and would not have jeopardized his freedom by taking such pills.

The examiner who conducted the questioning, Mr. Kruger, responded that the Commission "cannot usually grant release when there is statutory forfeiture of good time on the record and still outstanding," 6 but he permitted Ms. Resnik to speak. She again asked to be allowed to function fully as an attorney. She requested that the examiner permit Drayton to call witnesses in his behalf and to call and cross-examine possible adverse witnesses such as the officer who took the urine sample, the two other inmates then present, the laboratory technicians, and others. Mr. Kruger responded: "Obviously, . . . we must respectfully decline your request, we are simply not empowered to comply with it." Because Ms. Resnik could not function as an attorney, she merely described the evidence which, if introduced supported Drayton's repeated claims of innocence. She referred to his family's observations of appellee while he was on furlough, appellee's unit manager's willingness to testify that the alleged behavior was uncharacteristic of Drayton, and a pharmacological expert's offer to testify to the inaccuracy of laboratory tests on amphetamine use. Although rushed by the examiners, she also explained how error from mislabeling or tampering either at the institution 7 or at the laboratory could have occurred, and emphasized that only the testimony of those who had contact with the urine sample could resolve that uncertainty.

The examiners asked Drayton to "stand outside" for a moment; when he returned, they advised him of their conclusions. The panel first recommended rescission of the parole grant, "based on the findings of the IDC . . . that (appellee) did commit the prohibited act involving drugs . . . ." The panel also recommended that his incarceration be continued until his mandatory release date. That the panel's conclusions were based on its acceptance of the IDC report, without any independent scrutiny of the report or of the factual contentions proffered by appellee, is vividly apparent from its written Hearing Summary, the pertinent portions of which are quoted in the margin, 8 as well as the explicit authorization to treat IDC findings as "conclusive evidence of institutional misconduct." 28 C.F.R. § 2.34(a)(2) (notes 3 & 6 Supra ). The Parole Commission's Regional Office adopted these findings in abbreviated form in its notice of action. 9

Appellee then sought a writ of habeas corpus under 28 U.S.C. § 2241, challenging the constitutional validity of the rescission hearing on due process grounds. Judge Daly, following previous decisions of the District Court of Connecticut, 10 agreed that the procedures accorded Drayton were constitutionally inadequate. It ordered the Commission to provide the full panoply of Morrissey/Gagnon rights in a new rescission hearing by February 8, 1978, warning that "the Court will . . . take such . . . action as it deems appropriate in line with (its prior decisions)" 11 if the Commission failed to comply. In a memorandum decision filed shortly thereafter, Judge Daly elaborated the legal basis underlying his earlier ruling and ordered: "In the event that a proper hearing is not held by (February 14, 1978), the petitioner shall be released on (that date) under the conditions specified in the Commission's original parole grant for that date." Drayton v. McCall, supra, 445 F.Supp. at 311. Because the Commission chose to ignore the court's instructions, on February 9, the district court denied the Government's motions for relief of judgment and a stay of the earlier order pending appeal. It further directed reinstatement of the Commission's October 31 parole grant. Drayton was accordingly released from federal custody on parole on February 14, 1978.

We, as well as the parties, interpret the first two orders to be conditional grants of habeas corpus relief which were granted unconditionally upon the Government's noncompliance. Appellant does not dispute the...

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