Dunn v. California Department of Corrections
| Decision Date | 08 October 1968 |
| Docket Number | No. 22301.,22301. |
| Citation | 401 F.2d 340 |
| Parties | James Franklin DUNN, Appellant, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, California Adult Authority, et al., and L. S. Nelson, Warden, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
James F. Dunn, in pro. per.
George R. Nock (argued), Deputy Atty. Gen., Thomas C. Lynch, Atty. Gen. of Cal., John T. Murphy, Deputy Atty. Gen., San Francisco, Cal., for appellees.
Before HAMLIN and MERRILL, Circuit Judges, and WHELAN*, District Judge.
Appellant, a State prisoner now on parole, appeals from an order of the District Court denying his petition for writ of habeas corpus. At the time of filing the petition and at the time of the denial appellant was in a State prison. This Court has jurisdiction under Title 28, United States Code, Section 2253.
Appellees' motion to dismiss the appeal on the ground of mootness because appellant is now on parole is denied for the reason that absent the revocation of appellant's parole in 1964, of which revocation appellant complains, appellant would now be free of any technical custody under parole as his State sentence as originally fixed would now have expired. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285.
Appellant contends he is entitled to a writ for the reason that his parole revocation by the California Adult Authority, hereinafter Authority, in 1964 was invalid. Such revocation was made on two grounds: first, that appellant had been using dexedrine, a dangerous drug, in violation of a condition of parole; and second, that appellant had possession of marihuana, also in violation of a condition of parole. His contention that he has not violated his contract of parole while the Authority has violated the contract is but another way of stating that revocation as to him had no valid basis.
The pertinent facts concerning the revocation are as follows. In May of 1963 the Authority decided not to revoke appellant's parole for a violation of a condition thereof, to wit, the use of dexedrine tablets within the month previous; in November of 1963 he and his female roommate were arrested for possession of marihuana; the woman pleaded guilty to the charge of possession and stated that petitioner knew nothing about the marihuana. The criminal action concerning the marihuana was dismissed as to him at the time of the woman's plea of guilty on motion of the prosecutor. On December 12, 1963, he was charged with parole violations by the use of the dexedrine mentioned and by having possession of such marihuana. He pleaded guilty to the charge of using dexedrine and not guilty to the charge of possessing marihuana.
Appellant contends that the dismissal of the criminal case involving marihuana as to him made it impossible for the Authority legally to revoke his parole for possessing the marihuana involved in such case; he contends further that the Authority having once determined not to revoke his parole because of the use of dexedrine cannot now again consider the same as a ground for revoking parole.
A State prisoner's right to parole is not one of the rights protected by the United States Constitution. As stated in Eason v. Dickson, 390 F.2d 585, 589 (9th Cir. 1968), "The federal courts have already found that the California provisions for parole revocation do not present a substantial federal constitutional question." The Authority may revoke parole on such evidence...
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