Mozingo v. Craven

• Decision Date: 17 March 1972
• Docket Number: Civ. No. 71-1578.
• Citation: 341 F. Supp. 296
• Court: U.S. District Court — Central District of California
• Parties: Donald Edward MOZINGO, Petitioner, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent.

341 F. Supp. 296

Donald Edward MOZINGO, Petitioner, v. Walter E. CRAVEN, Warden, Folsom State Prison, Respondent.

Civ. No. 71-1578.

United States District Court, C. D. California.

March 17, 1972.

Gerald F. Uelmen, Los Angeles, Cal., for petitioner.

Evelle J. Younger, Atty. Gen., Herbert L. Ashby, Chief Asst. Atty. Gen., Crim. Div., Russell Iungerich, Deputy Atty. Gen., Los Angeles, Cal., for respondent.

MEMORANDUM OPINION

FERGUSON, District Judge.

Petitioner, a California state prisoner, seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his present confinement in Folsom Prison.

This case concerns the constitutional validity of the procedures followed by the California Adult Authority at petitioner's parole revocation hearing. In view of the importance of the issues, the facts of the case are set forth at length.

1. On December 16, 1965, petitioner was sentenced under the California Indeterminate Sentence Law to a term of one year to life imprisonment by the Superior Court for Orange County, California, after he entered a plea of guilty to a charge of second degree robbery. Calif.Pen.Code § 211. He began serving this sentence December 30, 1965.

2. On July 1, 1968, pursuant to its authority under California Penal Code section 3020, the California Adult Authority fixed petitioner's term at five (5) years, to expire December 30, 1970, and granted parole effective September 10, 1968.

3. On June 6, 1969, a Parole and Community Service hearing was conducted. Petitioner's parole was suspended and he was ordered returned to prison on the basis of a parole violation report which charged petitioner with two parole violations: (1) a violation of Condition 5B by being found guilty of drunk driving for an offense that occurred on November 18, 1968; and (2) a violation of Condition 11 by being convicted of traffic violations which occurred on November 10, 1968, and March 1, 1969. Petitioner was not present at the Parole and Community Service hearing. From April 10, 1969, until June 30, 1969, he was in the Sacramento County Jail, serving a sentence imposed for the traffic offenses which were the subject of the parole suspension proceedings. On June 30, 1969, he was returned to Folsom Prison. On July 11, 1969, petitioner was notified of the two charges against him, and on July 29, 1969, a parole revocation hearing was held. At the revocation hearing he appeared without counsel, and entered a plea of guilty to both counts. At the conclusion of the hearing his parole was revoked and his sentence was refixed at life imprisonment. At both the Parole and Community Service hearing and the revocation hearing the panel members had before them a parole violation report dated May 12, 1969, written by petitioner's parole agent. This report recommended petitioner's reinstatement on parole. Petitioner was never shown this report prior to or at the parole revocation hearing.

4. On November 10, 1969, the California Adult Authority refixed petitioner's sentence at seven (7) years, to expire December 30, 1972. On November 25, 1969, he was again placed on parole.

5. On January 8, 1970, petitioner was incarcerated at the Sacramento County Jail on a parole hold, after he advised his parole agent of his involvement in a barroom altercation. At a Parole and Community Service hearing in San Francisco on January 23, 1970, petitioner's parole was suspended on the basis of the agent's parole violation report, and he was ordered returned to prison. Petitioner was not notified in advance of the time or place of the Parole and Community Service hearing, or served with notice of the charges being considered. He was not present at the hearing. Petitioner was incarcerated at the California Medical Facility Reception Guidance Center at Vacaville on January 23, 1970. On February 2, 1970, petitioner was first notified of the charges against him.

6. The parole violation report charged petitioner with one violation of the conditions of parole: "violating Condition 12 by assaulting Herbert Bowman with his fists, feet and a pool cue causing him grievous bodily harm on or about 1-4-70". This report was the sole basis for the decisions of the Adult Authority at both the Parole and Community Service hearing and the subsequent parole revocation hearing.

7. In support of the charges the report stated as follows:

"On 1-4-70, Herbert Bowman ... was playing pool in Mike's in 1424 Silica Ave. Sacramento when he was confronted by Mozingo who asked him to dance. When Mr. Bowman replied, `you're not my type', Mozingo struck him with his fists and a pool cue which he broke in five pieces in assaulting the victim. Mozingo's brother, Ray, joined him in the assault and when Mr. Bowman attempted to identify the Mozingo brothers, he was again hit in the face and knocked to the floor where the Mozingo brothers kicked him with their feet and beat him with bar stools. During the affray the victim's wallet disappeared with $70 cash and numerous credit cards.

"On 1-6-70 Mozingo notified this agent of the assault but did not indicate there had been any Robbery of Mr. Bowman's wallet. Sacramento Police Department investigated the assault in their report #70390 and determined that all witnesses had been placed in fear of their lives by the Mozingo brothers. The Mozingos threatened bodily harm to anyone notifying the police, and called the bar by telephone after the assault and again made threats to all witnesses. At this time witnesses are so intimidated that they are fearful of testifying and therefore, Mozingo has been incarcerated on a parole hold.

"The Sacramento Police Department are sic continuing their investigation of the Robbery of the victim's wallet."

In addition, the parole report included the agent's analysis of petitioner's problem:

"Parolee's Reaction to Stress:

"Subject continues to use alcoholic beverages and has so indicated to this agent. When using even the smallest amount his defenses are down and he is prone to assaultive acts as described in their report. For the past week, he has threatened suicide at the Sacramento County Jail because of his depression due to his incarceration without a warrant and possibility of return to state prison. As of 1-20-70, at approximately 3 p. m. subject slashed his left forearm in three places in a suicide attempt and the official at the Sacramento County Jail transferred him to the Sacramento Medical Center for holding following this action.

"One of the cuts had to be stitched. He had been interviewed on 1-20-70 at noon by the undersigned agent, he indicated at that time he would use anything as a means to get psychiatric help as he felt the departmental clinician for OPC was not accurately giving him the help he needed. His feelings of resentment toward those in authority is great. He has lashed out at law enforcement officers and yesterday made an accusation that this agent was attempting to kill him. Being unable to act out his resentments he has directed them toward himself in the recent suicide attempt. He has very little respect for himself and readily justifies all his criminal behavior as being provoked by others.

. . .

"REASONS FOR RECOMMENDATION:

"Mozingo's recent release from STRU has made little imprint on his aggressive behavior as within five weeks he has maliciously assaulted a total stranger. His mental outlook at this time is deteriorating to such a degree as to warrant a long treatment period in a controlled setting.

"ALTERNATIVE PROGRAM

"Mozingo recently has mentioned brain damage as the key to his irrational acts and, if possible, further medical examination should be attempted to determine the direction of further treatment in this case."

8. A psychiatric evaluation completed on February 5, 1970, by Dr. B. K. Wilson, Chief Psychiatrist at Vacaville, summarized petitioner's mental problems as follows:

"In summary the subject has a very long history of antisocial behavior. He has had an explosive personality since early childhood and has been diagnosed as having encephalopathy due to trauma with psychomotor epilepsy only by use of alcohol by Dr. David Owens. He demonstrates impairment of his ability to process information in a normal way. He is unable to abstract thoughts and ideas in a normal way. He described a mounting anxiety which he is unable to control as the basis for his seeking alcohol. His judgment and emotional controls are completely destroyed with the use of alcohol."

9. On March 9, 1970, petitioner, proceeding in propria persona, filed a petition for a writ of habeas corpus in the Superior Court for Solano County, California, alleging that he was being denied "due process of the laws and the Constitution of California and the United States". He requested an evidentiary hearing, alleging that his parole had been suspended without cause, and offered to present the testimony of witnesses on his behalf. On March 11, 1970, the Solano County Superior Court ordered the attorney general to file a return to the petition.

10. On March 13, 1971, petitioner appeared without counsel for the parole revocation hearing at the Vacaville facility and entered a plea of not guilty. He was briefly questioned about the circumstances of the barroom altercation. Although no transcript was made of this hearing, the panel's report purports to summarize what occurred. According to that report, petitioner denied the charge against him. He claimed he was trying to stop a fight in which his brothers were involved. He admitted drinking and claimed he didn't know what he was doing. He denied any knowledge of Mr. Bowman's missing wallet. Petitioner was not confronted with the witnesses against him nor permitted to present witnesses on his own behalf. At the conclusion of the hearing petitioner's parole was revoked and his sentence was automatically refixed at the maximum — life imprisonment. Petitioner was not shown the parole violation report prior to or at the parole revocation hearing.

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