Gross v. Bishop

• Decision Date: 18 May 1967
• Docket Number: No. 18669.,18669.
• Parties: Billy GROSS, Appellant, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

377 F.2d 492 (1967)

Billy GROSS, Appellant, v. O. E. BISHOP, Superintendent of the Arkansas State Penitentiary, Appellee.

No. 18669.

United States Court of Appeals Eighth Circuit.

May 18, 1967.

W. P. Hamilton, Little Rock, Ark., for appellant on brief.

Joe Purcell, Atty. Gen., Little Rock, Ark., and R. D. Smith, III, Asst. Atty. Gen., for appellee on brief.

Before VOGEL, Chief Judge, and BLACKMUN and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

Billy Gross, a prisoner in the state penitentiary at Grady, Arkansas, appeals, in forma pauperis and with appointed counsel, from the denial of his petition for a writ of habeas corpus. Judge Harris issued the certificate of probable cause required by 28 U.S.C. § 2253, and we must review. Nowakowski v. Maroney, 386 U.S. 542, 87 S.Ct. 1197, 18 L. Ed.2d 282 (1967).

The primary facts are not in dispute. On November 4, 1958, upon a plea of guilty, Gross was convicted in the Circuit Court of Pulaski County, Arkansas, of the state offenses of burglary, larceny, and forgery and uttering. The court imposed a five year prison sentence but, pursuant to Ark.Stat.Ann. § 43-2324 (Repl. 1964),¹ suspended this sentence for five years.

On October 16, 1963, almost at the end of the five year period, the sentencing court revoked the suspension and Gross was incarcerated in the state penitentiary. No transcript of this revocation proceeding was made but the judge later prepared written "Recollections * * * as to the facts he considered" in the revocation. These included (a) advice received from the prosecuting attorney of Conway County, Arkansas, that Gross had then been charged with first degree murder "in connection with a vicious killing in that county"; (b) the prosecutor's statement that it would be safer to keep Gross in the penitentiary than in the local jail; and (c) the court's being advised of the details of the alleged crime, issuing a citation to show cause, appointing an attorney to represent Gross, and holding a hearing. The revocation was effected prior to the murder trial.

On March 5, 1964, a jury convicted Gross on the murder charge. He received a life sentence and is now in the penitentiary serving that sentence. We must assume that that three-year-old conviction has become final.²

On November 5, 1965, two years after the revocation of the suspension of his 1958 sentence and 20 months after his murder conviction, Gross filed a petition for a writ of habeas corpus with the Circuit Court of Pulaski County. This petition was denied. On appeal the denial was affirmed by a unanimous Supreme Court of Arkansas. Gross v. State, 240 Ark. 926, 403 S.W.2d 75 (1966). That Court, in so affirming, held that under § 43-2324 a subsequent conviction is not a condition precedent to revocation of a suspension of a sentence; that under the statute a trial court may revoke suspension when it "is persuaded that it is for the best interests of the defendant and of society"; that conviction for a subsequent offense "is by no means decisive" in a revocation proceeding and may well be given little or no weight; that suspension is conditioned upon good behavior; that permitting a convict to remain at large "while known to be engaging in flagrant misconduct involving criminal and homicidal tendencies is against the best interests of the accused and the public"; that revocation is not to be disturbed "except upon a showing of gross abuse of the discretion of the court"; and that there was no abuse of discretion in Gross' case.

Gross then promptly (within a month) personally filed the federal habeas petition which is the subject of this appeal. In this petition, with its accompanying copies of papers in the state proceeding, he appears to suggest (a) inadequacy of his representation by other appointed counsel in the state proceedings in that the attorney did not raise all the points which Gross asked him to raise; (b) bias on the part of the state judge; (c) that the revocation of the suspension was effected only to obtain maximum security for Conway County, something which could have been accomplished without the revocation; (d) that he was deprived of due process and the presumption of innocence because, among other things, the revocation preceded his murder conviction; (e) that at the time of the revocation the only things which had happened were his being accused and his arrest; and (f) that in other cases revocation has come about after, and not before, conviction of another crime.

Judge Harris, in ruling on the appellant's petition, observed that Gross was raising no question as to his plea of guilty in 1958. He held that suspension was an administrative prerogative of the sentencing state court; that revocation was also an administrative prerogative; that abuse of discretion in this area is a matter for review by the state Supreme Court; that a federal court is not required to go behind the administrative action of the state court and is concerned only with the convict's constitutional rights; and that there was no violation of Gross' constitutional rights here.

We affirm. We think the short and complete answer to the appellant's claims is that, whatever may have been the situation prior to his conviction on the murder charge in March 1964, now over three years ago, that judgment of conviction and the imposition of a life sentence nullify and render moot at the present time the claims he makes on this appeal. Gross' five year sentence has been overtaken and replaced by the life sentence imposed upon him. Thus, as of this time and on this record, any possible error in the revocation of the suspension of the five year sentence is necessarily rendered nonprejudicial. His present petition directed only to the lesser five year sentence must therefore fail. McNally v. Hill, 293 U.S. 131, 137, 55 S.Ct. 24, 79 L.Ed. 238 (1934); Wilson v. Gray, 345 F.2d 282, 284 (9 Cir. 1965), cert. denied 382 U.S. 919, 86 S.Ct. 288, 15 L.Ed.2d 234; Glenn v. Ciccone, 370 F.2d 361, 362-363 (8 Cir. 1966).

We are not, however, to be understood as intimating that, apart from the fact of Gross' conviction for murder, he would be entitled on this record to the writ he seeks. There is another adequate and sufficient reason for the denial of that relief.

The suspension of a sentence upon conditions is a matter of legislative and judicial grace. It is not a matter of right and by its grant a defendant obtains no vested right to its continuance. This court has specifically so held with respect to federal probation. Kirsch v. United States, 173 F.2d 652, 654 (8 Cir. 1949) ; Kaplan v. United States, 234 F. 2d 345, 348 (8 Cir. 1956). Mr. Chief Justice Hughes' classic comments in Burns v. United States, 287 U.S. 216, 220-223, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932), are pertinent here:

"Probation is thus conferred as a privilege, and cannot be demanded as a right. It is a matter of favor, not of contract. * * * There is no suggestion in the statute that the scope of the discretion conferred for the purpose of making the grant is narrowed in providing for its modification or revocation. The authority for the latter purpose immediately follows that given for the former, and is in terms equally broad. * * * The question in both cases is whether the court is satisfied that its action will subserve the ends of justice and the best interests of both the public and the defendant. * * * The question, then, in the case of the revocation of probation, * * * is simply whether there has been an abuse of discretion and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary

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