Majchszak v. Ralston

• Decision Date: 02 May 1978
• Docket Number: No. 77-C-179.,77-C-179.
• Citation: 454 F. Supp. 1137
• Parties: John Richard MAJCHSZAK, Petitioner, v. George A. RALSTON and Maurcie H. Sigler, Respondents.
• Court: U.S. District Court — Western District of Wisconsin

454 F. Supp. 1137

John Richard MAJCHSZAK, Petitioner, v. George A. RALSTON and Maurcie H. Sigler, Respondents.

No. 77-C-179.

United States District Court, W. D. Wisconsin.

May 2, 1978.

John M. Schmolesky, Legal Assistance to Institutionalized Persons Program, Madison, Wis., for petitioner.

John A. Franke, Asst. U.S. Atty., W.D. Wis., Madison, Wis., for respondents.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This is a petition for a writ of habeas corpus. Petitioner, an inmate at the Federal Correctional Institution in Oxford, Wisconsin, claims that his custody is in violation of the laws and Constitution of the United States. 28 U.S.C. § 2241.

On the basis of the entire record, including the stipulation of facts and documents attached to the parties' briefs, I find the following facts:

FACTS

On May 4, 1973, petitioner was sentenced to twelve years, pursuant to 18 U.S.C. § 4208(a)(2), upon conviction of bank robbery in violation of 18 U.S.C. § 2113(a).

Having served 46 months of his sentence, on July 21, 1976, petitioner was given a regular review hearing by the United States Parole Commission (Commission). At the time, petitioner had a salient factor score of 4 and an offense severity rating of very high.

Progress reports prepared by prison officials dated April 21, 1976, and May 25, 1976, indicate that petitioner's institutional adjustment had been good.

The guidelines of the Commission, 28 CFR § 2.20, predicated upon good institutional conduct and program performance, suggest that 45 to 55 months be served by a person with a salient factor score of 4, and an offense severity rating of very high. Thus, petitioner qualified then for release on parole under the guidelines.

On August 5, 1976, petitioner was denied parole. The Commission scheduled petitioner's next review hearing for July, 1978, the maximum continuance allowed by 18 U.S.C. § 4208(a)(2), the statute under which petitioner had been sentenced. The reasons for the denial are presented in the hearing summary, dated July 21, 1976, and the notice of action, dated August 5, 1976, both of which state:

"Your offense behavior has been rated as very high severity. You have a salient factor score of 4. Your sic have been in custody a total of 46 months. Guidelines established by the commission for adult cases which consider the above factors indicat sic a range of 45-55 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and indormation sic presented, a decision above the guidelines at this consideration appears warranted because of your on-going pattern of criminal behavior dating back to 1956, including parole violation as indicated in the presentence report, and there is not a reasonable probability at this time that you would live at liberty without violating the law."

The presentence report, dated May 1, 1973, to which the hearing summary and notice of action refer, lists petitioner's date of birth as November 8, 1945 but notes that petitioner contends that he was born on November 8, 1947. Petitioner has offered no evidence in this court to substantiate that he was born in 1947 and, therefore, I find that he was born in 1945. The presentence report describes petitioner's juvenile record as follows:

"From 1-19-56 to 5-18-60, Majchszak was referred on ten occasions to the Milwaukee County Juvenile Court for offenses relating to truancy, theft, runaway, uncontrollable, and criminal damage to property. He was specifically placed on juvenile probation on 6-26-57 and 3-1-60.

"On 5-18-60, Majchszak was committed to the State Department of Public Welfare until the age of 21 for violation of his probation and being uncontrollable. There followed a series of parole releases and violations. He was paroled from the Wisconsin School for Boys on 1-19-61 and returned 8-1-61 for four runaways and theft from his father. On 4-18-62, he was paroled but returned 6-4-62 for burglary and car theft.

"He was transferred from WSB to the Wisconsin State Reformatory on 11-30-62 as he assaulted an inmate and several staff members. He was paroled 12-23-63 from WSR but returned 2-16-64 on a new charge of carrying a concealed weapon."

This last charge, carrying a concealed weapon, also appears on petitioner's adult record.

In an affidavit, petitioner testifies that he was never represented by counsel in any of the proceedings against him in the Childrens' Court of Milwaukee County, Wisconsin from 1954 to 1963 and that he never was offered such legal assistance. This contention is not controverted by respondents, and I find it as a fact.

From the presentence report summary of petitioner's juvenile record, I conclude that some of petitioner's appearances before the Milwaukee County Juvenile Court could have resulted in commitment to an institution in which petitioner's freedom would have been curtailed.

Petitioner appealed the parole decision to the Regional Commissioner who affirmed the denial of parole on August 31, 1976. The affirmance stated that "reasons given support the decision."

Petitioner then appealed to the National Appeals Board which affirmed the review order of the Regional Commissioner on October 12, 1976. In its Findings and Conclusions, dated October 4, 1976, the National Appeals Board noted that petitioner was a parole violator, summarized his criminal history, including his juvenile record, and concluded that there was "no basis for relief."

OPINION

Challenging the decision to deny him parole, petitioner asserts that the Commission (1) arbitrarily and capriciously misused the guidelines by according double weight to certain items comprising his salient factor score; (2) ignored petitioner's good institutional adjustment; and (3) improperly considered petitioner's juvenile record. Because the last contention is decisive of this petition, I address it alone.

Petitioner contends that by expressly relying upon his presentence report, with its summary of his juvenile record, the Commission considered constitutionally invalid information, namely, juvenile adjudications held without benefit of counsel. In In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the Court applied the full panoply of Fourteenth Amendment due process rights to the adjudicatory stage of juvenile proceedings. With respect to the right to counsel, the Court concluded (387 U.S. at 41, 87 S.Ct. at 1451):

". . . the Due Process Clause of the Fourteenth Amendment requires that in respect of proceedings to determine delinquency which may result in commitment to an institution in which the juvenile's freedom is curtailed, the child and his parents must be notified of the child's right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child."

In the context of the present petition, the mandate of In re Gault poses three legal questions: first, whether Gault should be given retroactive effect; second, whether the Gault right to counsel attached to the particular juvenile adjudications which had been entered against this petitioner; and third, if Gault is to be applied retroactively, what are to be the consequences of the Commission's consideration of constitutionally defective juvenile adjudications.

I. Retroactivity Of Gault

The Constitution neither prohibits nor requires retrospective application of judicial decisions. Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). The retroactive or prospective effect of a new constitutional rule of criminal procedure depends upon "the peculiar traits of the specific `rule in question.'" Johnson v. New Jersey, 384 U.S. 719, 728, 86 S.Ct. 1772, 1778, 16 L.Ed.2d 882 (1966). Three criteria generally guide a determination of a retroactivity question: (1) the purpose of the new standard; (2) the extent of reliance by law enforcement authorities on the old standard; and (3) the effect on the administration of justice of a retroactive application of the new standard. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Adams v. Illinois, 405 U.S. 278, 280, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972). The most critical factor is the purpose to be served by the new rule. Desist v. United States, 394 U.S. 244, 249, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969).

Resolution of the retroactivity of the right to counsel announced in In re Gault requires no elaborate analysis. The right to counsel is designed to insure the fundamental fairness of a judicial proceeding. As the Supreme Court has observed:

"Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." Footnotes omitted.

Williams v. United States, 401 U.S. 646, 653, 91 S.Ct. 1148, 1152, 28 L.Ed.2d 388 (1971). The Court has abided by this principle in requiring retroactive application of its right to counsel decisions where it has been clear that the lack of counsel threatened the integrity of the adjudicatory process. See e. g. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, right to counsel at trial; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), right to counsel at certain arraignments; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), right to counsel on appeal; Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968), retroactive application of right to counsel at preliminary hearing where guilty plea is entered; ...