Kartman v. Parratt

• Decision Date: 12 May 1976
• Docket Number: No. 75-1592,75-1592
• Citation: 535 F.2d 450
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: Gerson Merrill KARTMAN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal & Correctional Complex, Appellee.

Page 450

535 F.2d 450

Gerson Merrill KARTMAN, Appellant, v. Robert PARRATT, Warden, Nebraska Penal & Correctional

Complex, Appellee.

No. 75-1592.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 9, 1975.

Decided May 12, 1976.

Bennett G. Hornstein, Asst. Public Defender, Omaha, Neb., for appellant; Frank B. Morrison, Douglas County Public Defender, and Bennett Hornstein, Omaha, Neb., on brief.

Melvin K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., for appellee; Paul L. Douglas, Atty. Gen., and M. K. Kammerlohr, Asst. Atty. Gen., Lincoln, Neb., on brief.

Before ROSS, STEPHENSON and WEBSTER, Circuit Judges.

WEBSTER, Circuit Judge.

In this appeal from an order of the District Court ¹ dismissing his petition for a writ of habeas corpus, appellant Gerson Merrill Kartman contends that his probation was revoked without affording him the minimum procedural due process required by Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v.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). Specifically, he contends: (1) that he was denied a preliminary hearing near the place of and soon after the alleged violation; (2) that he was not given adequate notice of the preliminary and final hearings and of the grounds alleged for revocation; (3) that he was denied the right to an independent decision maker at these hearings; (4) that he was denied his right to confront adverse witnesses and information at the preliminary hearing; (5) that the written summaries issued after the two hearings were inadequate; (6) that the state impermissibly revoked his probation on the basis of a crime of which he had not yet been convicted; and (7) that the state impermissibly revoked his probation on the basis of alleged unlawful conduct of which he had been acquitted.

On June 16, 1972, appellant entered a plea of nolo contendere to three counts of motor vehicle homicide in the Douglas County District Court in Omaha, Nebraska. At that time, appellant was sentenced to a term of two months imprisonment on Count I. Sentence on Counts II and III was suspended and appellant was placed on probation for two years, commencing on completion of the jail sentence on Count I.

Subsequently, on July 9, 1973, an information was filed charging that the appellant had violated his probation by defrauding an innkeeper and engaging in drunk and disorderly conduct on July 5, 1973, in Omaha. A hearing was held in Omaha on the day the information was filed, and the matter was continued until August 1, 1973. Appellant was released on bond. The matter was again continued until September 17, 1973. On September 17th, the state trial court permitted the original information to be withdrawn and allowed the state to file a substitute motion to revoke probation. The motion to revoke probation contained three charges: (1) that appellant had been convicted of disturbing the peace on November 30, 1972, in Sapulpa, Oklahoma; (2) that appellant was in physical control of a motor vehicle while intoxicated in Tulsa, Oklahoma, on March 24, 1973, and had refused to submit to a breath analysis test; and (3) that appellant had not satisfied his probation officer that he had complied with the terms and conditions of his probation, and that appellant by his conduct had not demonstrated a bona fide attempt to rehabilitate himself.

On September 21, 1973, four days after the motion to revoke probation was filed, a preliminary hearing was held in Omaha. The hearing was continued to September 28, 1973, in order to allow for further investigation and for appellant to adduce additional evidence. On September 28th, the hearing commissioner found probable cause to revoke appellant's probation. A final probation revocation hearing was then held in the state trial court on October 18 and 19, 1973, at which time probation was revoked and appellant was sentenced on Count II of the three original counts of motor vehicle homicide to imprisonment for one to ten years and on Count III to one year of imprisonment to run concurrently.

On appeal to the Nebraska Supreme Court, appellant attacked the probation revocation, claiming, inter alia, deprivation of due process. That court affirmed the decision of the state trial court. State v. Kartman, 192 Neb. 803, 224 N.W.2d 753 (1975). Appellant then filed his petition for a writ of habeas corpus in the District Court. The District Court denied the petition, stating that, although the court found "that the state committed errors in the revocation proceedings, the errors were not prejudicial to the petitioner". Kartman v. Parratt, 397 F.Supp. 531, 532 (D.Neb.1975).

I. Vagueness of Third Charge

The third charge of the revocation information read as follows:

That Patrick C. Krell, the Chief Adult Probation Officer of the Fourth Judicial District is of the opinion that the defendant has failed to comply with the terms and conditions of his probation and that by his conduct he has failed to demonstrate a bona fide attempt to rehabilitate himself. The above cited conduct occurred during the period of the defendants probation which commenced on October 2, 1972 and remains in effect.

We agree with the District Court that this charge was impermissibly vague. It failed to apprise the appellant of the conditions of probation which he was alleged to have violated and of the dates and events supporting the charge. The court held, however that since the second charge (physical control of a motor vehicle while intoxicated) was alleged with sufficient specificity and was proved by clear and convincing evidence, "the insufficiency of the third allegation was harmless beyond a reasonable doubt." 397 F.Supp. at 534. We agree with the District Court that if this error in the state revocation proceeding was harmless error and not prejudicial, habeas corpus relief is not warranted. See United States ex rel. Blassingame v. Gengler, 502 F.2d 1388 (2d Cir. 1974). Cf. Lambur v. Chew, 356 F.Supp. 751, 753 (E.D.Va.1973). Thus, the fact that the third charge was impermissibly vague will not justify relief if revocation on either of the first two charges was proper. Additionally, the introduction of any evidence relating to the third charge would be harmless error since such evidence would have likely been admissible on the issue of the sanction to be imposed. See People v. Johnson, 43 A.D.2d 878, 351 N.Y.S.2d 32 (1974). See point VIII, infra.

II. Location and Timeliness of Hearing

Morrissey recognized two important stages in the typical process of parole revocation:

The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The second occurs when parole is formally revoked.

408 U.S. at 485, 92 S.Ct. at 2602, 33 L.Ed.2d at 496. The Court noted that there was "typically a substantial time lag between the arrest and the eventual determination by the parole board whether parole should be revoked." Id. It also noted the possibility that there may be some distance between the place of arrest and the institution to which the parolee is returned pending final decision. It was the time lag and distance factors, each of which could have an impact upon the integrity of the fact finding process, which prompted the Court to require a preliminary "probable cause" inquiry before the parolee was returned to the institution to await a final determination. ² Accordingly, the Court held:

Given these factors, due process would seem to require that some minimal inquiry be conducted at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available.

Id.

Appellant contends that the preliminary hearing should have taken place in Oklahoma where the probation violations occurred. In expounding the requirement that the initial hearing be near the place of the alleged violation "or arrest" the Supreme Court was plainly speaking of arrests for parole violation and not arrests for the offense itself. ³ While the arrest may normally be expected to occur in the vicinity of the violation, in this case the procedural circumstances are somewhat unusual.

Appellant was arrested in Omaha on July 9, 1973, under the first probation violation information, which charged violations of Nebraska law on July 5, 1973. Had the state proceeded on the Nebraska offenses, it seems unlikely that any challenge would have been made to the place or time of hearing. However, a superseding motion to revoke probation was filed on September 17, 1973. It charged two separate violations of law in Oklahoma and separately charged a continuing failure to comply with conditions of probation. It is not clear whether the third charge was intended to include the July 5, 1973, conduct, ⁴ and in any event the District Court properly held the third charge to be fatally defective for vagueness. Under ordinary circumstances, it would seem preferable to hold the preliminary hearing reasonably near the place of the violation chiefly relied upon. Cf. Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 243, cert. denied, 375 U.S. 957, 84 S.Ct. 446, 11 L.Ed.2d 315 (1963) (defining minimal procedures under federal statute). The circumstances of this case do not suggest any conscious effort of the state to deprive appellant of the advantages of a hearing in Oklahoma, but rather reflect a continuance of a process properly initiated in the first instance in Omaha. Since the Omaha violation ceased to be the offense chiefly relied upon prior to the preliminary hearing, we must next inquire whether, under these circumstances, appellant has shown any prejudice from holding the initial hearing in Omaha rather than Oklahoma where the other violations were alleged to have occurred. Appellant does not contend that he sought to have his preliminary hearing held in Oklahoma. There is no showing in the record that the place of hearing in any way...