Marquardt v. Gagnon, 70-C-67.
Decision Date | 10 July 1970 |
Docket Number | No. 70-C-67.,70-C-67. |
Parties | Gerald A. MARQUARDT, Petitioner, v. John R. GAGNON, Respondent. |
Court | U.S. District Court — Eastern District of Wisconsin |
Gerald A. Marquardt, pro se.
Robert W. Warren, Atty. Gen., by William A. Platz, Asst. Atty. Gen., Madison, Wis., for respondent.
DECISION and ORDER
Petitioner, Gerald A. Marquardt, an inmate of a state prison, seeks a writ of habeas corpus on the grounds that his probation was revoked without a hearing. He has also moved for the appointment of counsel.
On January 20, 1969, Mr. Marquardt, represented by counsel, entered a plea of guilty in a state court, was convicted, and was sentenced to a total of not more than eight years on two counts of burglary. His sentence was stayed, and he was placed on probation, with conditions, for two years. When he failed to comply with the terms of his probation, it was revoked by the Wisconsin department of health and social services. He is currently serving the original sentence.
The Escoe case has been interpreted to mean that the right to such a hearing rests solely upon statutory grant and not upon a right guaranteed by the Constitution. In Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), the Supreme Court distinguished the case of a prisoner who had been sentenced before probation from one who had not; only in the latter case is a hearing deemed to be a right under due process.
The Wisconsin statutes also distinguish sentenced probationers from those who have not been sentenced; they do not grant the right of a previously sentenced prisoner to a hearing when his probation is revoked. I conclude that the petitioner's rights under the sixth and fourteenth amendments have not been...
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State ex rel. Johnson v. Cady
...has been convicted, sentence imposed by a court and execution thereof stayed, and defendant placed on probation.3 Marquardt v. Gagnon (E.D.Wis., 1970), 314 F.Supp. 709.3 a The concurring opinion of Mr. Chief Justice Hallows states that the majority opinion is premised on the fact that there......
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Scarpelli v. Gagnon
...is empowered, where the probationer has already been sentenced, to transport him directly to prison. 5 See also Marquardt v. Gagnon, 314 F. Supp. 709 (E.D.Wis.1970). 6 U. S. ex rel. Bishop v. Brierly, 288 F. Supp. 401 (E.D.Pa.1968); Holder v. United States, 285 F.Supp. 380 (E.D. Tex.1968); ......
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...of the Habeas Corpus Statute. Lebron v. United States Secretary of the Air Force, 392 F.Supp. 219 (S.D.N.Y.1975); Marquardt v. Gagnon, 314 F.Supp. 709 (E.D.Wis.1970). Cf. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). In Walker v. State of North Carolina, 262 F.Supp.......
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Le Febre v. Cady, 70-C-635.
...was "violative of the basic requirements of due process." In a decision and order dated August 31, 1970, this court, in Marquardt v. Gagnon, D.C., 314 F.Supp. 709, applied Hahn and granted a writ of habeas corpus to a petitioner whose probation had been revoked without a hearing; the grant ......