Hiatt v. Compagna, 12715.

• Citation: 178 F.2d 42
• Decision Date: 16 December 1949
• Docket Number: No. 12715.,12715.
• Parties: HIATT, Warden, v. COMPAGNA et al.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

178 F.2d 42 (1949)

HIATT, Warden, v. COMPAGNA et al.

No. 12715.

United States Court of Appeals Fifth Circuit.

November 10, 1949.

Rehearing Denied December 16, 1949.

J. Ellis Mundy, U.S. Atty. and Harvey H. Tisinger, Asst. U. S. Atty., Atlanta, Ga., A. E. Gottshall, Atty. Dept. of Justice, Washington, D. C., for appellant.

M. Neil Andrews, Atlanta, Ga., Wm. Scott Stewart, Chicago, Ill., for appellee.

Before HOLMES, WALLER, and SIBLEY, Circuit Judges.

SIBLEY, Circuit Judge.

Appellees Compagna and Gioe were convicted, together with others, in the Southern District of New York and each received a sentence of ten years imprisonment, affirmed United States v. Compagna, et al., 2 Cir., 146 F.2d 524, certiorari denied, 324 U.S. 867, 65 S.Ct. 912, 89 L.Ed. 1422. Having served one-third of their sentences they were placed on parole August 13, 1947. Unfavorable newspaper publicity followed, and an investigation was had by a committee of Congress of the operations of the Parole Board and particularly of this case. The Board members who granted these paroles were out of office, and the then members testified they knew of no ground to revoke them. The committee, however, reported, among other things, that the Board had agreed to take definite action by June 19, 1948, on the committee's request that these paroles be revoked. On July 21, 1948, Judge Rogers, one of the three Board members, issued warrants in the usual form reciting that "reliable information has been presented to the undersigned member of this Board that the said paroled prisoner named in this warrant has violated the conditions of his parole, and the said paroled prisoner is hereby declared to be a fugitive from justice"; and ordering his arrest and return to the penitentiary. Both parolees were promptly arrested and brought to the Atlanta Penitentiary. Each on September 2, 1948, filed a lengthy application for habeas corpus, attacking the validity of their trial and sentence; and attacking the warrants issued by Judge Rogers because of the Congressional enquiry and the testimony therein of each Board member that there had been no breach of parole. The applications further alleged there had not since been any breach of parole and Judge Rogers had no reliable information of any; that the Board had appointed a hearing for September 8, 1948, but had announced no counsel would be heard. The prayers were that the Court declare the conviction and warrants to be void and the Board without jurisdiction; and alternatively that the Board be ordered to return the parolees to their home in Chicago where they were arrested, and give them a hearing there according to the Administrative Procedure Act, with counsel and witnesses present and a reporter furnished by the Board or paid by applicants. The applications set out the grounds which the Board had notified each applicant would be investigated as justifying the revocation of his parole. On September 20, 1948, the applications were amended to allege that two members of the Board, not including Judge Rogers, had in Atlanta on September 8 conducted a hearing in which applicants denied the charges made against them and were cross examined on them, a Court reporter taking notes, but that no other evidence was introduced and representation by counsel was denied, and the Board refused to comply with the Administrative Procedure Act; and that the matter was continued and referred to Washington.

The only respondent named is the Warden of the Atlanta Penitentiary, who is not a member of the Board. He answered that he was holding the applicants for habeas corpus under their original sentences, and under the warrants of Judge Rogers which he said were valid; that the Administrative Procedure Act had no application, but the parole system was a thing sui generis, administered by the discretion of the Board and exempt from judicial review by the language of the Administrative Procedure Act; and that the conduct of the Board is not reviewable by habeas corpus, parole being a matter of grace and not a legal right.

The responses were traversed, habeas corpus writs issued, and a full hearing was had on the two petitions together. Interrogatories of like tenor were propounded to Judge Rogers, and to the other two members of the Board, one of whom was appointed since the Congressional investigation. Judge Rogers was away from home and made no answers. Chairman Killinger answered that counsel had asked to meet with the Board but had been refused because that procedure was not required by the Parole Statute and was not followed by the Board; that he was advised that the Administrative Procedure Act is inapplicable to the Board; that in reply to counsel's request he had written an exhibited letter, enclosing a copy of the Board's Rules and Regulations, and giving assurance that only conduct since parole would be considered; that the Board would be glad to confer with counsel at its office in Washington or consider any pertinent information in behalf of the parolees, but it had never been the Board's policy to admit counsel to its deliberations or when it interviews the prisoner; that the procedure of a criminal trial was not necessary to a determination of the question whether the welfare of society would be promoted by the granting, revocation, or modification of a parole. It concluded: "To sum up, it is our position that a formal hearing of the kind you seek is not provided for by the statute. We shall, however, be glad to have you submit in writing, or in person at our headquarters, any material or information bearing on these cases." He further testified that all appearances of prisoners before the Board are stenographically reported, running into hundreds at every meeting of the Board, the notes are transcribed in Washington and each case thereafter separately considered by the Board members, so that some delay is inevitable; but that there would be no unnecessary delay in deciding the cases of applicants. Several interrogatories he declined to answer, and the Board's files he refused to produce, because they involved matters then pending before the Board for decision. Board member Monkiewicz answered to the same effect. No effort was made to force further answers.

The district judge declined for want of proof to hold invalid the sentences, which were attacked as based on perjured testimony knowingly used, and on a conviction for a conspiracy as made in New York, but really made, it at all, in Chicago. Moreover, Revised Title 28, Sec. 2255, requires that such an attack be presented to the court which tried the case.

The district judge apparently thought the Administrative Procedure Act, 5 U.S.C.A. § 1001, and following, has no application to the procedures of the Parole Board in granting paroles, revoking, or modifying them, though he did not expressly so rule. It has never been thought applicable by the Board or the Attorney General who appoints its members and approves its rules. The full dress procedure it requires would render it practically impossible for the Board to handle its business. A prisoner sentenced to the penitentiary is turned over by the court to the executive, namely the Attorney General, to have the sentence executed. That the term may be shortened by good conduct, or that the imprisonment may be ameliorated by serving it outside the prison walls on parole. See Anderson v. Corall, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247, is a legislative grace and not a thing of right. The legislature may affix such conditions and provide such administration as it will. Courts have no function, except as the statutes give them power. As respects parole, the original statutes, as well as the revision now of force, bristle with discretion given the Board, and are silent about court interference. Revised Title 18, Sec. 4202, provides that certain classes of prisoners "may be released on parole". Section 4203, prescribing no sort of hearing, and leaving it to the "opinion of the Board", says "the Board may in its discretion authorize the release of such prisoner on parole", under conditions fixed "in the discretion of the Board," he remaining "in the legal custody and under the control of the Attorney General". Section 4205 provides: "A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced." Section 4206 requires designated officers to execute the warrant "by taking such prisoner and returning him to the custody of the Attorney General", that is, to the prison. Section 4207 is: "A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof." There is nothing in the present statute, of force since September 1, 1948, requiring that the warrant be based on "reliable information" as stated in the former Title 18, Section 717. It is very evident that the whole matter of paroles is left to the informed discretion of the Board. Court action is not made a part of it. The Administrative Procedure Act, in authorizing court review of the acts of the agencies which it governs, as to them excludes such action when "(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion." 5 U.S.C.A. § 1009. Certainly no review of what the Board is doing or has done can be undertaken by habeas corpus where the Board is not a party, and no such directions can be given it as these applications pray for.

The district judge, however, held that the uncontradicted testimony of the two applicants was that Judge Rogers could have had no "reliable information" of parole violation, for there was no...