Jones v. Johnston

Decision Date09 June 1976
Docket NumberNos. 74-1424,74-1517,s. 74-1424
Citation534 F.2d 353,175 U.S.App.D.C. 151
PartiesWilliam Harvey JONES v. Steve D. JOHNSTON, Executive U.S. Board of Parole, Appellant. Arthur E. BYRD et al., Individually and on behalf of others similarly situated v. Maurice J. SIGLER, Chairman, et al., Appellants, Delbert C. Jackson, Director Department of Corrections District of Columbia, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

Steven W. Snarr, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Robert M. Werdig, Jr., and Oscar Altshuler, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellants.

Robert Plotkin, Washington, D. C. (appointed by this court), with whom Dina Lassow and Richard Hand, Washington, D. C., were on the brief, for appellees.

Before McGOWAN and ROBINSON, Circuit Judges, and GUS J. SOLOMON, * Senior United States District Judge for the District of Oregon.

Opinion for the court filed by Circuit Judge McGOWAN.

McGOWAN, Circuit Judge:

These appeals present the question of when a prisoner serving a sentence for a crime committed while on parole, and against whom a parole violator warrant has been issued and lodged as a detainer, is entitled to a revocation hearing and determination upon request. The Government, appealing two District Court decisions, 1 insists that hearing and determination may be deferred until the intervening incarceration has terminated, although it accepts the premise that the Constitution requires that a hearing ultimately be provided. We hold that this position does not measure accurately the reach of the Due Process Clause.

A. No. 74-1517

The situations of the three appellees in No. 74-1517 (Fitzgerald, Kelley, and Byrd) are similar in all material respects.

Fitzgerald had been convicted of bank robbery in the Middle District of Pennsylvania in 1963, and after serving just over seven years of his ten year sentence received a mandatory "good-time credit" release pursuant to 18 U.S.C. §§ 4163, 4164 (1970). 2 On July 27, 1970, the U.S. Parole Board issued a parole violator warrant against him for failure to report for supervision; when Fitzgerald was arrested in March, 1971 and charged with robbery in the District of Columbia, the violator warrant was lodged against him as a detainer at his place of incarceration. 3 On March 31, the Board updated the warrant to include an allegation of committing an offense while on parole. Fitzgerald pleaded guilty in District Court to robbery, 22 D.C.Code § 2901 (1967), and was sentenced on August 31, 1972 to three to twelve years, to run concurrently with any other sentence "that (he) . . . might be exposed to." 372 F.Supp. at 892.

The detainer has remained lodged against him to the present, despite several requests by Fitzgerald that the Board hold a prompt revocation hearing. The Board has conducted a "dispositional review" 4 of his case, and has determined to take no action on the detainer until the intervening robbery sentence has been served and he has been taken into federal custody under the (executed) violator warrant.

Appellee Byrd was paroled on June 14, 1971 from a three to twelve year sentence imposed in 1965 for a robbery conviction. In September, 1971, he was arrested and charged with armed robbery, and was incarcerated in the District of Columbia jail where on November 11 a detainer based on the armed robbery charge was lodged against him. He pleaded guilty to armed robbery on July 6, 1972, and was sentenced to four to twenty years, to run concurrently with any other sentence then being served. The detainer has remained lodged against him at Lorton Reformatory. Byrd's caseworker has requested that the Board take action on the detainer; the Board has responded that the detainer will remain on file, and that periodic dispositional reviews will be undertaken by the Board.

Kelley had received a twenty-five year sentence in 1963 for armed robbery of a post office, from which he was paroled in 1971. On June 23, 1972, he was sentenced in District of Columbia Superior Court to one to three years for attempted robbery, and a parole violator warrant was lodged against him as a detainer. On August 8, 1972, Kelley also was convicted in District Court of armed robbery, and received a sentence of from three to fifteen years, which he is now serving. As is the case with the other two appellees, the detainer has been allowed to stand against Kelley since his conviction. Kelley's prison caseworker submitted to the Board in August 1973 a letter from Kelley requesting action on his detainer, and the Board has advised him that it will conduct periodic dispositional reviews.

On November 7, 1973, Fitzgerald filed the instant action, alleging jurisdiction under 28 U.S.C. §§ 1361, 2241, 2255 (1970), and asking, inter alia, that the action be certified as a class action, 5 that the parole violator warrant outstanding against him be quashed, and that the Board be required to hold speedy revocation hearings on all parole violator warrants placed against persons incarcerated for subsequent convictions. 6

On December 31, 1973, an amended complaint was filed in which Fitzgerald, Byrd and Kelley joined, essentially identical to Fitzgerald's complaint save that jurisdiction was based only on 28 U.S.C. §§ 1361, 2241 (1970). On March 13, 1974, the District Court ruled that (1) petitioners are "in custody" for the purposes of 28 U.S.C. § 2241, (2) the Board was constitutionally required to hold a final revocation hearing within a reasonable time after the detainers had been lodged and the parolees had been incarcerated pursuant to their convictions, and (3) as a consequence of the Board's delay, the detainers and warrants must be quashed. The appeal in No. 74-1517 is taken from these rulings.

B. No. 74-1424

On May 17, 1968, appellee Jones was convicted of housebreaking and grand larceny in the District Court, and was sentenced under the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. § 4253 (1970), to an indeterminate term not to exceed ten years. He was released on parole in October of 1969, but five months later the Board of Parole issued a parole violator warrant charging him with failure to comply with the NARA aftercare program, violation of the Harrison Narcotic Act, falsifying a supervision report, and failure to report to his probation officer. That and a supplemental warrant were lodged against Jones at the District of Columbia Jail, where he was being held on a stolen vehicle charge. On January 18, 1971, Jones pleaded guilty to attempted unauthorized use of a motor vehicle, and was sentenced to one year with credit for time served; in September of that year he pleaded guilty to a narcotics offense, and was sentenced to five years imprisonment.

In October of 1971 Jones was transferred to Lorton, where the warrants were lodged against him. After a dispositional review in January, 1972, the Board chose to continue the detainer subject to periodic review. Jones filed the instant action six months later, 7 alleging that he had been denied access to certain rehabilitative programs as a result of the detainer, and in particular that he had been denied on-the-job training. Following a March, 1973 dispositional review at which the Board again permitted the detainer to continue in effect, Jones' attorney suggested that the dispute might be settled if the detainer were withdrawn to permit access to rehabilitative programs. The Board acquiesced and withdrew the detainer temporarily to allow Jones to participate in rehabilitative programs, with the understanding that the warrant again would be lodged shortly before the expiration of the intervening sentence. Jones then urged that the warrant be quashed because of the delay in holding a dispositional hearing. On January 9, 1974, the District Court granted Jones' request and ordered that the violator warrant be cancelled for failure to provide a prompt revocation hearing.


Appellants argue that appellees are not "in custody" for the purpose of habeas corpus jurisdiction. 8 This contention, which may have had merit under the "prematurity doctrine" of McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), has been undercut by later cases. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (habeas will lie to challenge future sentence consecutive to that being served); Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969) (federal prisoner constitutionally entitled to speedy trial on pending indictment for offense under state law); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) (state prisoner is "in custody" for purpose of federal habeas corpus challenge to denial of his constitutional right under Smith v. Hooey to speedy trial on pending indictment in another state). We hold that a parole violator warrant lodged as a detainer 9 represents sufficient "custody" of a parolee-prisoner to support habeas corpus jurisdiction under 28 U.S.C. § 2241. 10


In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), the Supreme Court ruled that due process requires a "preliminary" and "final" hearing for revocation of parole or probation. The parties here agree that the need for the preliminary, or "probable cause" hearing is eliminated in these cases by the conviction on the violation charged. The matter in dispute is the timing of the final hearing may it be delayed until the intervening sentence has been served, or is there a due process right to a determination of an outstanding detainer within a reasonable time after conviction on an intervening charge? 11

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11 cases
  • Shepard v. U.S. Bd. of Parole
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 7, 1976
    ...violation warrant as a detainer against Shepard satisfied § 2241(c)(3)'s "in custody" requirement. 1 See, e. g., Jones v. Johnston, 534 F.2d 353, 357 (D.C.Cir., 1976). III. On May 14, 1976, four days after oral argument before us, the statutory and regulatory framework challenged in Shepard......
  • Feinberg v. Federal Deposit Ins. Corp.
    • United States
    • U.S. District Court — District of Columbia
    • August 13, 1976
    ...involved, the question of whether the interest at stake is constitutionally protected must first be addressed. Jones v. Johnston, 534 F.2d 353, 358 (D.C. Cir. 1976). A. The Interest to be It appears clear to this Court that the F.D.I.C., acting pursuant to 12 U.S.C. § 1818(g)(1), has depriv......
  • McCoy v. U.S. Bd. of Parole
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • July 15, 1976 the Board of Parole, one of his custodians for purposes of habeas corpus jurisdiction is the Board of Parole. See Jones v. Johnston, 534 F.2d 353, 357 (D.C.Cir., 1976); Lee v. United States, 501 F.2d 494, 501 (8th Cir. 1974). Cf. Braden v. 30th Judicial Circuit Court, supra, 410 U.S. at ......
  • Moody v. Daggett
    • United States
    • U.S. Supreme Court
    • November 15, 1976
    ...on parole is entitled to a due process hearing promptly upon issuance of the parole violator warrant and detainer. Jones v. Johnston, 175 U.S.App.D.C. 151, 534 F.2d 353 (1976), cert. pending sub nom. Sigler v. Byrd, No. 76-355; United States ex rel. Hahn v. Revis, 520 F.2d 632 (CA7 1975), m......
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