Harris v. Day, 79-1968

• Decision Date: 16 March 1981
• Docket Number: No. 79-1968,79-1968
• Citation: 649 F.2d 755
• Parties: Charles Curtis HARRIS, Petitioner-Appellant, v. Irl DAY, Warden; United States Parole Commission, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 755

649 F.2d 755

Charles Curtis HARRIS, Petitioner-Appellant, v. Irl DAY, Warden; United States Parole Commission Respondents-Appellees.

No. 79-1968.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 30, 1981.

Decided March 16, 1981.

John W. Hornbeck, Boulder, Colo., for petitioner-appellant.

Robert S. Streepy, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., Topeka, Kan., and Joseph A. Barry, General Counsel, Michael A. Stover, Atty., U. S. Parole Commission, Washington, D. C., with him, on brief), for respondents-appellees.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

The petitioner-appellant here seeks relief from various orders of the United States Parole Commission and also asserts that error has been committed in not providing him with counsel at all of the hearings. He was sentenced to ten years in prison for selling narcotics on April 30, 1968. Mandatory release occurred on April 9, 1974, and he then had 1,474 days remaining to be served on his original sentence. He was to remain in the jurisdiction of the Parole Commission until October 24, 1977.

Appellant's trouble commenced when he was arrested November 23, 1975, on a burglary charge in Oklahoma, where he was detained by state authorities. As a result of this incident a parole violation warrant was issued and lodged as a detainer on December 5, 1975. It cited traffic violations, possession of marijuana and burglary as grounds. There was a supplement on November 3, 1976, that stated, in addition, that appellant had committed grand larceny in Oklahoma. Appellant entered a plea of guilty to that charge, and on March 11, 1976 he was sentenced to three years imprisonment in an Oklahoma institution.

There was no hearing conducted by the federal parole authorities during the period appellant was serving time on the state charge in Oklahoma. A detainer was placed against the appellant on January 17, 1977, and the warrant was executed on October 3, 1977.

Appellant was committed to the United States Penitentiary at Leavenworth, Kansas. The appellant's mandatory release was revoked and his good time was forfeited by the United States Parole Commission on December 9, 1977. At that time no credit was given for the time appellant had spent on parole or for time that he had served in the Oklahoma State prison. His request to the United States District Court for the District of Kansas for appointment of counsel at that hearing was denied, and so appellant was not represented by counsel at the revocation hearing.

Following his exhaustion of remedies, appellant filed a habeas corpus petition in the United States District Court for the District of Kansas, alleging that he was entitled to but denied credit for time spent on parole under 18 U.S.C. § 4210. Further, appellant alleged that he had a right to counsel at the parole revocation hearing in accordance with 18 U.S.C. § 4214(b)(1), 3006A(g). Appellant maintained that if credit were given for the time spent on parole, the Parole Commission's jurisdiction over appellant had terminated under 18 U.S.C. § 4210(b).

The Parole Commission's motion for summary judgment in response to defendant's habeas corpus petition was granted. The District Court for the District of Kansas held that no genuine issue as to any material fact was present. The appellant has appealed from that judgment.

I.

Did the district court err in denying appellant's request

for appointment of counsel for the parole hearing?

(Defendant is represented by counsel in this court.)

On November 29, 1977 the United States District Court for the District of Kansas denied Harris' request for appointment of counsel to represent him at the parole revocation hearing. There was ample case support for this ruling at the time, since cases which had interpreted 18 U.S.C. § 4214, 3006A, had held that the courts have discretion in determining whether to appoint counsel in parole revocation matters. However, in 1978, this court, in Baldwin v. Benson, 584 F.2d 953 (10th Cir. 1978), held that § 4214 does give the parolee a statutory right to appointment of counsel for parole revocation proceedings, unless he waives the right. Appellant contends that that ruling was intended to be applied retroactively for his benefit. The trial court in the habeas corpus proceeding disagreed, and refused to hold that appellant was entitled to a new revocation hearing with the assistance of appointed counsel. This is the question which we must consider.

The district court in the present proceedings applied the test set forth in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Michigan v. Payne, 412 U.S. 47, 93 S.Ct. 1966, 36 L.Ed.2d 736 (1973) in its consideration as to whether new legal precedent ruling that a parolee is entitled to counsel at a revocation hearing should be applied retroactively in this case. Under that test three factors are considered: (1) the purpose to be served by the new standard; (2) the extent of the reliance upon the old standard, and (3) the effect on the administration of justice of the retroactive application of the new standard. The district court held that none of the factors weighed in favor of retroactive application of the holding in Baldwin. It is appellant's contention, however, that this test should not apply in the instant case, since the Supreme Court decisions involved the retroactivity of newly announced standards of constitutional protection, whereas the present case involves construction of a statute which appellant contends had prospective application from its effective date. We must disagree with the appellant's contention.

The criteria which are set forth in Stovall and Michigan, supra, for determining whether new legal precedents should be applied retroactively, apply to non-constitutional decisions concerning statutory interpretation, as well as to constitutional questions. Halliday v. U. S., 394 U.S. 831, 833, 89 S.Ct. 1498, 1499, 23 L.Ed.2d 16, rehearing denied 395 U.S. 971, 89 S.Ct. 2106, 23 L.Ed.2d 761 (1969), was concerned with retroactive application of McCarthy v. U. S., 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where the Supreme Court interpreted Rule 11 of the Federal Rules of Criminal Procedure. Lawary v. United States, 599 F.2d 218 at 223 (7th Cir. 1979) involved retroactive application of Dorszynski v. U. S., 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), where the Supreme Court held that if an eligible defendant is denied sentencing under the Youth Corrections Act, the court must make an explicit finding that he would derive no benefit from sentencing under that Act. Bailey v. Holley, 530 F.2d 169, 173 (7th Cir. 1976), cert. denied 429 U.S. 845, 97 S.Ct. 125, 50 L.Ed.2d 116, considered the retroactive application of the court's holding that the Administrative Procedures Act required the Board of Parole to supply a statement of reasons for denying a federal prisoner's written parole application. Thus, the test applied by the district court in the instant case was correct.

The appellant does not contest the manner in which the district court applied the retroactivity test. He merely maintains that this test should not be applied when the issue is one of statutory interpretation. Therefore, since the district court applied the correct test, we see no need to go into detail as to the court's findings. It is sufficient to say that we agree with the district court's determination and its finding that after consideration of the three prongs of the retroactivity test, none of the three speak out in favor of a retroactive application of the holding in Baldwin.

The trial court considered in some detail the three prong test applicable to retroactivity. As to the first test, the trial court found that appellant had not been denied due process, inasmuch as he had not contested the facts relating to whether he had violated parole. Appellant did not claim the existence of justification nor did he assert mitigating circumstances, and he did not make a showing of inability to speak for himself.

As to the second prong of the test, the trial court recognized that the extent of the reliance upon the old standard is well known, in that case law applying the old standard is abundant. Accordingly, the district court stated that the United States Parole Commission acted in good faith in applying the old standard, and in holding a revocation hearing in which the appellant was not represented by counsel.

As to the third standard of the test, it was concluded by the trial court that if this case were to be remanded for hearing requiring representation by counsel, there is no doubt but that the result would be the same, since the appellant's conviction in Oklahoma while on mandatory parole would be introduced into evidence and his parole would be revoked regardless of the presence of an attorney, inasmuch as there is no claim of mitigating circumstances.

Furthermore, the court noted that if the rule were applied retrospectively upon the Parole Commission, the court would have to rescind its order denying counsel, appoint counsel, and the Commission would be required to conduct revocation hearings in all such cases which have arisen since the effective date of 18 U.S.C. § 4214. The court added that since the Act became effective "the denial of appointment of counsel has occurred in 84 similar cases in this district alone."

We are in agreement with the decision of the district court that in applying the three prong test of Stovall v. Denno and Michigan v. Payne, the rule of Baldwin need not be applied retroactively.

Our holding is in substantial accord with the Supreme Court's decisions limiting the retroactive effect of rulings which have expanded the due process protection in prison disciplinary proceedings and parole matters. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); ...