Hutchison v. Patterson
| Decision Date | 03 May 1967 |
| Docket Number | Civ. A. No. 67-C-52. |
| Parties | Benjamin Burk HUTCHISON, Petitioner, v. Wayne K. PATTERSON, Warden, Colorado State Penitentiary, and the Colorado State Board of Parole et al., Respondents. |
| Court | U.S. District Court — District of Colorado |
Donald K. Bain, Denver, Colo., for petitioner.
Duke W. Dunbar, Atty. Gen. of State of Colorado, Robert C. Miller, Asst. Atty. Gen., Denver, Colo., for respondents.
Petitioner seeks the issuance of a writ of habeas corpus. Named as respondents are the Warden of the Colorado State Penitentiary and the Colorado State Board of Parole. Petitioner questions the validity of the revocation of his parole status.
Counsel was appointed to represent petitioner and following the filing of the traverse by the attorney appointed, the matter was set down for hearing.
Petitioner's contentions are: first, that he was arrested for parole violation without a warrant or without probable cause for his arrest; secondly, he maintains that he was denied due process in that he was not given a hearing on the charges against him at the time of his arrest and was not given an adequate hearing on parole violation at the penitentiary following his removal from the place of arrest to the penitentiary. He maintains that the Parole Board did not give him adequate notice of the alleged violation, denied him the right of counsel at the hearing, and failed to present witnesses to testify to violations.
The traditional view is that one who is on parole is granted a special privilege to be outside the walls of the institution while serving his sentence. It is often expressed in terms of parole being a matter of legislative grace. At the same time the parolee remains in constructive custody and is subject to be returned to the enclosure at any time. C.R.S.1963, 39-18-6, 39-18-7. See also Baumhoff v. United States, 10 Cir. 1953, 200 F.2d 769, and see Jenkins v. Madigan, 7 Cir. 1954, 211 F.2d 904, cert. denied 348 U.S. 842, 75 S.Ct. 63, 99 L.Ed. 664. While the petitioner's liberty cannot be terminated without reason, it does not follow that he is entitled to all of the constitutional procedures and safeguards guaranteed by the due process clause of the Fourteenth Amendment. Thus, he is not entitled to a speedy public trial pursuant to the Sixth Amendment, but is entitled to a fair hearing for the purpose of ascertaining whether or not he has violated his parole.
In essence, petitioner complains that he was denied counsel at the hearing and was not confronted with witnesses against him. It may be that the law in this respect will change. We note the decision of the United States Supreme Court made recently to review two Washington State cases involving revocation of probation. See Mempa v. Rhay, 386 U.S. 907, 87 S.Ct. 849, 17 L.Ed.2d 781 and Walkling v. Rhay, 386 U.S. 907, 87 S.Ct. 852, 17 L.Ed.2d 781. In those cases the question would appear to be whether a defendant in a state court is entitled to counsel at a probation revocation proceeding. But even if the Supreme Court concludes that a probationer is entitled to counsel in a revocation proceeding, there remains basis for distinction between parole revocation and probation revocation. The probationer has a substantially different status from that of the parolee. The imposition of sentence in his case has been suspended and thus unlike the parolee he is not serving a sentence while on probation. Indeed, it would seem desirable as a matter of policy to have counsel in the probation hearing.
The hearing before the Parole Board is an inquiry as to whether there has been a violation of parole, and if so, whether the best interests of the public and of the parolee will be served by continuation of parole, revocation or suspension. In reviewing the proceedings before the Parole Board on writ of habeas corpus, the Court is not...
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...Rose v. Haskins, supra, 388 F.2d 91; Lawson v. Coiner, supra, 291 F.Supp. 79; Sorenson v. Young, supra, 282 F.Supp. 1009; Hutchison v. Patterson, D.C., 267 F.Supp. 433; Johnson v. Stucker, 203 Kan. 253, 453 P.2d 35; People v. Omell, 15 Mich.App. 154, 166 N.W.2d 279; Beal v. Turner, 22 Utah ......
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Morrissey v. Brewer 8212 5103
...62—12—19 (1966.) Decisions of state and federal courts have required a number of other States to provide hearings. See Hutchison v. Patterson, 267 F.Supp. 433 (Colo.1967) (approving parole board regulations); United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079 (CA2......
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...is subject to be returned to the enclosure at any time." People v. Lucero, 772 P.2d 58, 60 (Colo. 1989) (quoting Hutchison v. Patterson, 267 F.Supp. 433, 434 (D. Colo. 1967)). Plaintiff — citing Goetz v. Gunter, 830 P.2d 1154 (Colo. App. 1992) — contends that Colorado law required Defendant......
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...same time the parolee remains in constructive custody and is subject to be returned to the enclosure at any time." Hutchison v. Patterson, 267 F.Supp. 433, 434 (D.Colo.1967). We have often held that a defendant's release on parole "in no way alters the fact that he is still under sentence; ......