Julian v. Harris, 72-1638

• Decision Date: 31 July 1973
• Docket Number: 72-1639.,No. 72-1638,72-1638
• Citation: 482 F.2d 405
• Parties: James Kenneth JULIAN, Plaintiff-Appellant, v. C. E. HARRIS, Warden, United States Penitentiary, Leavenworth, Kansas, et al., Defendant-Appellee. James Kenneth JULIAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

482 F.2d 405 (1973)

James Kenneth JULIAN, Plaintiff-Appellant, v. C. E. HARRIS, Warden, United States Penitentiary, Leavenworth, Kansas, et al., Defendant-Appellee.

James Kenneth JULIAN, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 72-1638, 72-1639.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted May 22, 1973.

Decided July 31, 1973.

Certiorari Denied December 3, 1973.

Sheldon K. Ginsberg, Denver, Colo., for plaintiff-appellant.

Bruce E. Miller, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for defendants-appellees.

Before PICKETT, McWILLIAMS and BARRETT, Circuit Judges.

Certiorari Denied December 3, 1973. See 94 S.Ct. 581.

McWILLIAMS, Circuit Judge.

The central issue concerns the propriety of Julian's revocation hearing, he at the time being a mandatory releasee from the United States Penitentiary in Leavenworth, Kansas, and charged with violating the terms and conditions of his release from a sentence imposed in a Texas federal court. It is Julian's contention that the aforesaid hearing was void and without effect since he was not afforded his Fifth and Sixth Amendment rights to the appointment of counsel to represent him at the revocation hearing, and for the further reason that shortly prior to the revocation hearing he had been declared by the United States District Court for the District of New Mexico to be mentally incompetent and unable to stand trial in that court and at the time of his revocation hearing had not been declared by that particular court to have been restored to reason and mentally competent to stand trial. Julian's habeas corpus proceeding seeking immediate release was dismissed by the trial court after a full evidentiary hearing. Julian now appeals and we affirm.

The operative facts, as we see them, are not in dispute and will be summarized as follows:

1. On December 6, 1963, Julian was received at the United States Penitentiary at Leavenworth, Kansas, to serve a four-year sentence on a Texas Dyer Act conviction;

2. On September 12, 1966, Julian was mandatorily released from a federal penal institution at Seagoville, Texas, with a balance of 414 days remaining on his original four-year sentence, the release order providing, among other things, that Julian should not leave the United States District for the Southern District of Texas without permission and that he should commit no crime;

3. On December 21, 1966, Julian was taken into custody by the United States Marshal in Reno, Nevada, and charged with a Dyer Act violation, and on February 8, 1967, was sentenced to a five-year term by the United States District Court for the District of Nevada for a violation of 18 U.S.C. § 2312;¹

4. On January 12, 1967, a mandatory release violator's warrant was issued by the United States Board of Parole for the unserved portion of the judgment and commitment from the Texas court, which, as mentioned, was for a total of 414 days;

5. On June 5, 1970, Julian was mandatorily released from the sentence of the United States District Court for the District of Nevada and simultaneously therewith a mandatory release violator's warrant in connection with the Texas commitment was executed and Julian remained in custody in the United States Penitentiary at Leavenworth, Kansas, under that warrant;

6. On June 11, 1970, Julian escaped from the United States Penitentiary at Leavenworth, Kansas, and was later arrested on July 1, 1970, in New Mexico;

7. As an outgrowth of his arrest in New Mexico, Julian was charged with a Dyer Act violation in the United States District Court for the District of New Mexico, and in connection therewith that court found on August 28, 1970, that Julian because of mental incompetency was unable to then stand trial and was thereupon committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for further examination;

8. On September 28, 1970, and also on October 16, 1970, Julian was found by the psychiatric staff at the Springfield, Missouri, institution to be mentally competent to stand trial;

9. On November 19, 1970, the revocation hearing which is here under attack was held at the Medical Center for Federal Prisoners at Springfield, Missouri, and by order dated December 4, 1970, Julian's mandatory release from his commitment for the Texas Dyer Act violation was revoked for having left Texas without permission and for having committed a crime, namely, the Dyer Act violation in Nevada; and

10. On December 18, 1970, the United States District Court for the District of New Mexico determined that Julian was mentally competent to stand trial, and on January 29, 1971, Julian, having been convicted of this particular offense, was sentenced to five years imprisonment to be served concurrently with the remainder of the sentences resulting from his earlier conviction in Texas and from his mandatory release violation.

Julian initially contends that the revocation hearing on November 19, 1970, was void because he was not afforded counsel. Under the circumstances of this particular case, this argument is unavailing. We have previously held that early release, be it mandatory or otherwise, and revocation hearings are matters of legislative grace not constitutionally mandated, and that accordingly there is no constitutional right to retained or appointed counsel at such revocation hearing. Earnest v. Willingham, 406 F.2d 681 (10th Cir. 1969). In that same case, we recognized, nonetheless, that where, as here, the administrative practice is to permit one charged with violating the terms of his mandatory release to be represented by retained counsel, one thus accused may not under the Fifth Amendment be constitutionally denied counsel simply because he is financially unable to retain counsel.

In Cotner v. United States, 409 F.2d 853 (10th Cir. 1969), we later held, however, that there was no constitutional duty to appoint counsel to represent an indigent accused of violating the terms of his mandatory release where "he did not contest the operative facts of his violation." And again, in Earnest v. Moseley, 426 F.2d 466 (10th Cir. 1970), when Earnest was before this court for a second time, we reaffirmed the rule of Cotner and again held that a mandatory releasee, even though indigent, was not constitutionally entitled to counsel "when the factual issues relating to whether or not he violated the conditions of his release were not contested."

In the instant case, counsel suggests that Julian did not admit the operative facts pertaining to his alleged violation of the conditions of his mandatory release, and that therefore he was entitled to legal representation. This is not our view of the record. On the contrary, that Julian did in fact violate the terms of his mandatory release by leaving Texas without permission and by thereafter committing a crime in the state of Nevada is not now in dispute, nor has it ever been in dispute. Julian himself admitted these violations in open court and the stipulations of counsel also admitted them. In such...