Jones v. Rivers

• Decision Date: 04 November 1964
• Docket Number: No. 9158.,9158.
• Parties: Robert E. JONES, Appellant, v. Hugh F. RIVERS, et al., Donald Clemmer, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

338 F.2d 862 (1964)

Robert E. JONES, Appellant, v. Hugh F. RIVERS, et al., Donald Clemmer, et al., Appellees.

No. 9158.

United States Court of Appeals Fourth Circuit.

Argued January 23, 1964.

Decided November 4, 1964.

Lawrence Speiser, Washington, D. C. court-assigned counsel (Mark A. Weiss, Washington, D. C., on brief), for appellant.

MacDougal Rice, Asst. U. S. Atty. (C. V. Spratley, Jr., U. S. Atty., on brief), for appellees.

Before SOBELOFF, Chief Judge, and HAYNSWORTH and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

Appellant, Robert E. Jones, is now confined in the District of Columbia Reformatory at Lorton, Virginia. On June 3, 1955, he was convicted in the United States Court for the District of Columbia of a violation of Section 3501(a), Title 22, of the District of Columbia Code and was sentenced to a term of three to nine years. After serving nearly six years at the Lorton Reformatory, he was conditionally released on March 24, 1961. However, on December 19, 1961, he was returned to Lorton pursuant to a warrant charging him with violation of conditions of his release. On April 18, 1962, his conditional release was reinstated by the District of Columbia Board of Parole and he was given his freedom from confinement.

On September 30, 1962, Jones was again arrested and was returned to Lorton pursuant to a warrant issued by the District of Columbia Board of Parole charging him with a violation of the conditions of his release. On October 25, 1962, he was given a hearing before the D. C. Board of Parole and on the same day the Board revoked his parole and ordered him to serve the remainder of his original sentence.

Jones instituted this habeas corpus proceeding and we accept his assertion that he "alleged, in substance, that his confinement was unlawful because the `hearing' pursuant to which his parole was revoked did not satisfy the requirements of law — in particular, because appellant Jones an indigent, was not furnished the assistance of counsel, nor advised of his right to have counsel appointed to assist him." He prayed his release from confinement.

The District Court conducted a hearing on June 18, 1963, and found that Jones had not been informed of his right to be represented by his own counsel before the Board, that he had not waived this right and, consequently, he had not had the parole revocation hearing to which he was entitled. From the record it appears that the court orally stated the conclusion that there was no requirement that counsel be appointed to represent Jones at the Board hearing. It was formally ordered that the Board of Parole should, after at least thirty days' notice, hold a new hearing with respect to parole revocation. The order provided that Jones "be given an opportunity to secure and have available for such hearing counsel of his own choosing and employment, and such witnesses as the petitioner desires" and that the Petition for Writ of Habeas Corpus be denied "with respect to the request for release from imprisonment."

The Board of Parole then fixed upon July 26, 1963, as the date for a new hearing and gave the required thirty day notices to the interested parties. Jones was advised that he was being given an opportunity to secure and have available for such hearing counsel of his own choosing and employment.

On July 1, 1963, after receipt of notice of the new hearing, Jones filed his notice of appeal. However, we are informed that, pursuant to the order of the court below, the District of Columbia Board of Parole proceeded to hold another hearing on the date fixed therefor at which Jones was present without counsel. His parole was again revoked.

Tersely stated, the only question presented on appeal is whether due process requires that an indigent parolee be provided with appointed counsel at parole revocation proceedings before the District of Columbia Board of Parole. Judges Haynsworth and Boreman have concluded that there is no such requirement and the latter has prepared this opinion. Judge Haynsworth has elected to file a separate notation of special concurrence. Chief Judge Sobeloff, concurring specially as to the result in this case, has fully stated his views in a separate opinion filed herewith.

The District of Columbia Board of Parole was created by Congress in 1932 and vested with all the powers and authority of the Federal Parole Board over persons committed to the D. C. penal institutions. However, Congress has seen fit to amend the D. C. parole laws as will be hereinafter shown.

Under the provisions of D.C.Code, § 24-206,¹ a parolee charged with violation of the conditions of his release is entitled to an "opportunity to appear" for a hearing before the Board of Parole, a member thereof or a designated examiner, and "may be represented by counsel" at such hearing in advance of any decision of the Board to revoke his parole. Prior to 1947, the Section did not specifically state that the parolee might be represented by counsel and there was no provision for an appearance before a member of the Board or an examiner designated by the Board. However, in Fleming v. Tate, 81 U.S. App.D.C. 205, 156 F.2d 848 (1946), the Court of Appeals for the District of Columbia Circuit held that the words, "opportunity to appear before the Board," in that Section meant that the parolee had a right to an effective appearance, which included the right to be represented by counsel of his own choice and employment if he so desired. But, at page 849 of 156 F.2d, the court made the unequivocal pronouncements: "The question is one of statutory construction. No constitutional right is involved, as parole is a matter of grace," and "it is not necessary that counsel be assigned, as the requirement here is not jurisdictional." Prior to Fleming v. Tate, it was the practice to refuse to permit counsel to appear at revocation hearings. Following this decision, Congress amended Section 24-206 of the D. C. Code to specifically provide for the appearance by the prisoner before the Board, a member thereof, or a designated examiner, and "at such revocation hearing he the prisoner may be represented by counsel."² In the comparable federal statute, 18 U.S. C. § 4207 (applicable to federal prisoners generally outside the District of Columbia), there is no provision in terms either requiring or permitting representation of the parolee by counsel at such hearings.³

Subsequent to the 1946 decision in Fleming v. Tate, supra, the Court of Appeals for the District of Columbia Circuit had opportunities to consider the right of indigents to representation by counsel at parole revocation hearings under 18 U.S.C. § 4207. In Robbins v. Reed, 106 U.S.App.D.C. 51, 269 F. 2d 242 (1959), the court interpreted that portion of 18 U.S.C. § 4207, providing that a prisoner retaken upon a warrant issued by the United States Parole Board "shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board," as embodying the statutory procedural requirement that the prisoner, if he so elects, should be given an opportunity to appear with counsel and to present testimony. At page 244 of 269 F.2d the court referred to its earlier decision in Moore v. Reid⁴ and reaffirmed its holding therein "that the prisoner does not waive this statutory privilege when he is not advised that he has it." In Glenn v. Reed, 110 U.S.App. D.C. 85, 289 F.2d 462 (1961), the reimprisoned parolee sought a declaration that the hearing on revocation of his parole was invalid and, additionally, a mandatory injunction ordering his release. It is apparent that the statute there involved was 18 U.S.C. § 4207 since the proceeding was brought against the United States Board of Parole, et al., by a federal prisoner from Ohio who was then imprisoned at Atlanta. The court held that the revocation of parole was invalid because the prisoner neither had nor was offered counsel at his hearing before the Board. Certain other decisions of the same court arising under the general federal parole statute are noted below.⁵

We next turn our attention to the more recent decision in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963), in which eight separate cases arising from parole revocation proceedings were consolidated for consideration by the court, sitting en banc. Judge Burger wrote the majority opinion in which Judges Miller (Wilbur K.), Washington, Danaher and Bastian concurred. Several issues were presented and considered,⁶ among them being the question of the right of an indigent parolee to appointment of counsel. Involved there were the provisions of the general federal parole statute, 18 U.S.C. §§ 4201-4210, while in the case at bar we are concerned with only one question arising under D.C.Code § 24-206. However, in view of the interpretation by the Court of Appeals for the District of Columbia Circuit of similar provisions in 18 U.S.C. § 4207 and D.C.Code § 24-206 (prior to amendment of the latter statute in 1947), we think Hyser v. Reed, supra, is of interest here.

With reference to appointment of counsel the majority of the court, in Hyser, said:

"Appellants concede that Congress has not authorized the Parole Board to appoint counsel for indigent parolees appearing before it and that Congress has not empowered the federal courts to make such appointments. The decisions of this court which hold that the parolee must be advised of his right to have retained counsel present are based on judicial construction of the words `opportunity to appear before the Board\' in 18 U.S.C. § 4207. Case citations omitted. They do not stand for the proposition that the presence of counsel is mandatory whenever a parolee appears before the Board or that parole revocation proceedings were to become adversary proceedings.

"* * * No case has yet held that an interested party in an administrative or regulatory proceeding is entitled to be furnished with counsel if he cannot afford one of his own

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