Hester v. Craven

• Decision Date: 17 February 1971
• Docket Number: Civ. No. 70-832-F.
• Citation: 322 F. Supp. 1256
• Court: U.S. District Court — Central District of California
• Parties: Thomas Carl HESTER, Petitioner, v. Walter E. CRAVEN, Warden, Respondent.

322 F. Supp. 1256

Thomas Carl HESTER, Petitioner, v. Walter E. CRAVEN, Warden, Respondent.

Civ. No. 70-832-F.

United States District Court, C. D. California.

February 17, 1971.

Robert Payson, Beverly Hills, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Los Angeles, Cal., William E. James, Asst. Atty. Gen., Jeffrey C. Freedman, Deputy Atty. Gen., for respondent.

MEMORANDUM OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS

FERGUSON, District Judge.

Petitioner, a California state prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his present incarceration in Folsom Prison. He was convicted of first degree robbery (California Penal Code § 211) in Los Angeles Superior Court on November 21, 1958, and sentenced to serve an indeterminate sentence of from five years to life. It is conceded that prior to bringing this action the petitioner fully exhausted his state remedies on the issues presented here.

This case centers around the operation of the California Indeterminate Sentence Law (California Penal Code § 1168). The operation of that law is basically as follows:

A criminal defendant is sentenced to state prison by a judge, not for a fixed term of years, but for "the term prescribed by law". Each offense in the California Penal Code sets forth a minimum and maximum term. For example, the sentence for a robbery conviction is a minimum term of five years and a maximum term of life imprisonment. While in prison, the California Adult Authority, after study and evaluation of the prisoner by psychiatrists, medical doctors, social workers and others, fixes the length of sentence within the range permitted by the legislature. An example would be ten years, with the last four on parole. If parole has not been violated, then upon serving the years so fixed, the defendant is released from his sentence. If he is charged with a parole violation, he is then returned to prison and a hearing is provided for the purpose of determining whether parole has been violated. If it is found that it has been violated, then parole is revoked.

However, instead of requiring the defendant to remain in prison for the remainder of the fixed term of his sentence, the Adult Authority has adopted Resolution 171. That Resolution provides that "when paroles are cancelled, suspended, and/or revoked, the previous action fixing term will be rescinded * * and the prisoner shall be considered as serving the maximum term * * *." Thus, without further hearing his sentence is automatically refixed at the maximum.

This action does not challenge the procedure followed to revoke parole and thereby require a parolee to be imprisoned for the remainder of his fixed term. Furthermore, it does not challenge the power of the Adult Authority to refix a sentence when parole has been revoked. The action is limited, within the framework of the facts of this case, to the procedure required by the Constitution before the Adult Authority may exercise the power to refix a sentence.

On August 23, 1961, the Adult Authority fixed petitioner's term at six and one-half years and provided that the last three years and two months would be served on parole. As determined, this term would have terminated in June, 1964. However, a notice of complaint was issued on May 5, 1963, charging the petitioner with three parole violations: (1) changing residence without permission; (2) associating with a parolee; and (3) possession of a firearm. On April 25, 1963, petitioner's parole was cancelled by the Adult Authority and his term was refixed at the maximum. The record of the hearing held by the Adult Authority on June 3, 1963, indicates that the petitioner pleaded guilty to the second charge, and not guilty to the first and third charges. He was found guilty of counts one and three. Petitioner does not challenge this redetermination.

Petitioner's term was then refixed at five and one-half years on April 12, 1965. This term, as refixed, would have terminated on May 21, 1967. Parole was granted effective October 4, 1965. On April 25, 1966, a notice of complaint was again issued. It charged petitioner with five parole violations: (1) changing residence without the knowledge or approval of his parole agent; (2) possession and control of a firearm; (3) maintenance of a common-law relationship with a woman after having been specifically instructed by his parole agent to discontinue the association; (4) commission of the crime of arson; and (5) commission of the crime of willful cruelty to children.

At a hearing held by the Adult Authority, petitioner pleaded not guilty to all counts. Petitioner was not permitted to be represented by counsel at this hearing, even though he testified and answered numerous questions propounded by the Authority. Nor was petitioner given the opportunity to question the persons who supplied the information relied upon by the Authority. In fact, no witnesses were called to give oral testimony in support of the charges against petitioner. The evidence against the petitioner consisted solely of a written report submitted by his parole officer.

On May 16, 1966, petitioner was found "guilty" of counts one and three. Counts four and five were dismissed; count two was submitted for more complete information and later dismissed. Parole was revoked and petitioner's term was automatically refixed at the maximum —life imprisonment—pursuant to Adult Authority Resolution 171.

It is from this redetermination decision that petitioner seeks relief. Petitioner claims that:

(1) The California Adult Authority's use of information to redetermine his sentence without allowing him to confront and cross-examine the witnesses against him violated his constitutionally protected right to due process.

(2) The California Adult Authority's failure to advise him of his right to remain silent, and that any statements made by him could be used against him, as well as being compelled to incriminate himself by answering questions and being required to enter a plea, violated his right against self-incrimination.

Petitioner states very emphatically that he is not challenging his lack of counsel at the hearing. For this reason, this issue is not considered. Due to the court's determination of the first claim, it is unnecessary to reach petitioner's second contention.

Shortly after this petition was filed, an order to show cause was issued and an attorney was appointed to represent petitioner. Briefs were filed by both sides and oral argument was heard. A federal evidentiary hearing on petitioner's claims was not held since the parties stipulated to the relevant facts, rendering a hearing unnecessary. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). The stipulation of facts, the briefs and the oral presentations are all part of the record herein and have been fully considered by this court.

The constitutionality of various aspects of the California Adult Authority parole revocation procedure has been litigated in a number of cases. To date, these questions have been unanimously decided in favor of the constitutionality of the parole revocation procedure and the power to refix sentences. However, no case has directly considered the matter presented by the petitioner.

The issue presented here is a very narrow and specific one, and a careful examination of the cases reveals that it has not been resolved despite certain dicta which could be read to preclude petitioner's claim. Directly stated, the issue is: Whether the California Adult Authority, consistent with the Due Process Clause of the Fourteenth Amendment, can redetermine the sentence of a parolee to a longer term based upon a factual determination of events which occurred outside the prison without giving the parolee the right to confront and cross-examine the witnesses against him.

The concurrence of three essential factors distinguishes this case from most other cases in this area: (1) the petitioner is challenging the procedure followed to arrive at the redetermination decision and not the decision to revoke parole nor the power to redetermine; (2) that decision was necessarily based upon a factual determination of events which took place outside the prison; and (3) the petitioner's attack is based upon his Fourteenth Amendment right to due process, which is applicable to both civil and criminal proceedings.

It is well settled that under present Ninth Circuit case law there is no federally protected right to a hearing in a mere parole revocation proceeding. It must be kept in mind that that issue is not the issue here. The primary Ninth Circuit case in that area is Williams v. Dunbar, 377 F.2d 505 (9th Cir.), cert. denied, 389 U.S. 866, 88 S.Ct. 131, 19 L.Ed.2d 137 (1967). Williams involved a suit for damages under the Civil Rights Act wherein the appellant alleged that his constitutional right to due process had been violated by the state's failure to provide a court hearing at the time his parole was revoked. The court affirmed the trial court's dismissal of the complaint, stating that no federal question was presented.

The court later faced a similar issue in Eason v. Dickson, 390 F.2d 585 (9th Cir. 1968). Eason brought a suit under the Federal Civil Rights Act seeking damages and injunctive relief. He made several contentions. First, he asserted that it was a denial of due process to revoke his parole without a proper hearing. The court rejected this contention, quoting Williams. Eason also challenged the legality of the redetermination on the ground that it constituted "multiple punishment". The court reasoned that the redetermination was not a "penalty" and, therefore, not improper. In the instant case, the right to redetermine is not in issue. Finally, the court dismissed Eason's equal protection argument.

In Sturm v. California Adult Authority, 395 F.2d 446 (9th Cir. 1967), appellant and a codefendant were convicted of first degree robbery...