Frick v. Quinlin

• Decision Date: 17 November 1980
• Docket Number: No. 79-2019,79-2019
• Citation: 631 F.2d 37
• Parties: Robert Lee FRICK, Petitioner-Appellant, v. Mr. QUINLIN, Superintendent, United States Prison Camp, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 37

631 F.2d 37

Robert Lee FRICK, Petitioner-Appellant, v. Mr. QUINLIN, Superintendent, United States Prison Camp,

Respondent-Appellee.

No. 79-2019.

United States Court of Appeals, Fifth Circuit.

Nov. 17, 1980.

Bill Sherrill, Tallahassee, Fla., (Court-appointed), for petitioner-appellant.

Nickolas P. Geeker, U. S. Atty., Pensacola, Fla., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before KRAVITCH, HENDERSON and REAVLEY, Circuit Judges.

HENDERSON, Circuit Judge.

Robert Frick appeals from the district court's denial of his petition for a writ of habeas corpus. Although we agree with the appellant that the government's handling of his case has been characterized by confusion and delay, we conclude that Frick was not prejudiced thereby. Accordingly, we affirm the judgment of the district court.

While on parole from a federal prison sentence, Frick was indicted for conspiracy and various substantive counts of mail fraud. On June 9, 1977, a parole violator's warrant was issued, but its execution was held in abeyance awaiting resolution of the pending charges. On September 12, 1977, guilty verdicts were entered on all counts and the warrant was executed. ¹

On September 29, 1977, Frick was brought before a parole revocation panel in New Orleans. The record is unclear whether Frick had advance notice of this meeting. Frick told the panel he needed time to get a lawyer and to secure witnesses who would testify that he was only peripherally involved in the crime of which he had just been convicted. He made it clear however that he had no desire to forgo a hearing; nevertheless the panel postponed the hearing. On December 28, 1977, Frick, still incarcerated, was notified that his hearing would be held on February 9, 1978. The same day Frick filed a request to review his file and notified the authorities that he wanted to have an attorney and certain witnesses present at his revocation hearing. ² Frick's hearing was finally held in the U. S. Penitentiary at Terre Haute, Indiana. The Parole Commission revoked his parole, allowing no credit for the time spent on parole and forfeiting all good-time earned during his previous incarceration.

On September 11, 1978, Frick filed a petition for habeas corpus pursuant to 28 U.S.C.A. 2241. Relief was denied on October 30, 1978. The district court did not hold an evidentiary hearing, but simply reasoned, citing case law and statutes, that regardless of procedural defaults by the government Frick was not entitled to his freedom.

The Parole Commission must afford an alleged violator a revocation hearing within 90 days of execution of the arrest warrant. 18 U.S.C.A. § 4214(c) (1980 Supp.). Despite Frick's request, a hearing was not held until approximately five months after his arrest. ³ In Smith v. United States, 577 F.2d 1025 (5th Cir. 1978), a panel of this court had occasion to delineate the relief available when the government fails to comply with § 4214. In order to obtain judicial relief the parolee must show that the delay was both unreasonable and prejudicial. 577 F.2d at 1027. The court further held that delays in excess of 90 days are unreasonable per se. Id. Frick fails to demonstrate that he was prejudiced and hence entitled to release.

To support his claim of prejudice, Frick maintains that during his five-month wait four potential witnesses became unavailable. According to Frick, those witnesses would have testified that he was only minimally involved in the fraud for which he was convicted. This is not an adequate showing of prejudice, however, because a parolee cannot collaterally attack the conviction upon which his revocation is based. United States v. Williams, 558 F.2d 224, 227-28 (5th Cir. 1977). Since he was not harmed by the delay and has already received a hearing, albeit a late one, Frick is not entitled to further relief. Id.; Smith.

Frick proceeds to challenge the quality of his eventual hearing. Citing Brown v. Lundgren, 528 F.2d 1050 (5th Cir.), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283 (1976), he argues that the revocation was arbitrary because the commission considered offenses that had been expunged from his record and was under the impression that his 1977 conviction involved mail fraud of $63,000.00 when in fact it was "only some $4,500." Assuming, without deciding, that the commission should not have considered parts of Frick's record, its decision nonetheless finds ample support. The commission's summary of the hearing contains the following:

It does appear the subject has not learned from his past experiences and continues to disregard legal sanctions. This can be evidenced by subject's past felony convictions, his parole and probation failures, and his conviction again on a mail fraud offense. Subject appears to be an individual who values money above the law. He is a con man who has stolen from his employers and clients and is someone who cannot be trusted in money matters.

The commission revoked his parole because it believed Frick could not function in the outside world without engaging in fraudulent activity; a belief amply supported by his record, even as he reads it. It is evident that the details of the evidence the commission examined were not critical to its decision. Cf. United States v. Rollerson, 491 F.2d 1209, 1212-13 (5th Cir. 1974) (mistake in presentence report).

Frick also insists that he was entitled to a credit for the time served on parole prior to revocation, and that he should not have forfeited good time he earned during his first sentence. However, as he concedes, these contentions have been rejected in other cases, and the commission acted within its well-established authority. ⁴ Lambert v. Warden, 591 F.2d 4, 8 (5th Cir. 1979).

The government was not only late in reviewing Frick's parole revocation, it was also tardy in responding to his habeas corpus petition. After granting Frick leave to proceed in forma pauperis, the magistrate ordered the United States to show cause within thirty days why the writ should not be granted. ⁵ The government did not respond until thirty-five days had passed. Frick does not specify any prejudice resulting from this delay, and, in fact, there was none. The...