Pavia v. Hogan, Civ. A. No. C74-2524A.

• Decision Date: 31 December 1974
• Docket Number: Civ. A. No. C74-2524A.
• Parties: Pasquale PAVIA v. Marvin E. HOGAN, Warden, United States Penitentiary, Atlanta, Georgia.
• Court: U.S. District Court — Northern District of Georgia

386 F. Supp. 1379

Pasquale PAVIA v. Marvin E. HOGAN, Warden, United States Penitentiary, Atlanta, Georgia.

Civ. A. No. C74-2524A.

United States District Court, N. D. Georgia, Atlanta Division.

December 31, 1974.

COPYRIGHT MATERIAL OMITTED

Pasquale Pavia, pro se.

John W. Stokes, U. S. Atty., J. Robert Cooper, Asst. U. S. Atty., Atlanta, Ga., for the Government.

ORDER

EDENFIELD, Chief Judge.

Petitioner, a federal prisoner incarcerated in the Atlanta federal penitentiary, seeks leave to file in forma pauperis a civil action which he has styled "Motion to Dismiss Detainer-Warrant." It may be so filed and the court will treat the matter as an action under the Civil Rights Act, 42 U.S.C. § 1983, and as a petition for declaratory relief under 28 U.S.C. § 2201, and for relief in the nature of mandamus under 28 U.S.C. § 1361.

Petitioner is currently serving a sentence of ten years imposed on January 11, 1971 in the United States District Court for the Southern District of New York. Subsequently, the Parole Division of the State of New York Department of Correctional Services lodged a detainer-warrant against him alleging violation of parole from a prior conviction in New York. Petitioner states that he immediately sought to have the remaining portion of the New York sentence to run concurrently with the federal sentence. His request was denied and he was told that "the Board of Parole would take no action concerning what should be done about the balance of time that you owe on your state sentence until Federal Authorities advise that you are available for return to this State, should that be the decision of the Board of Parole."

Again on August 12, 1974, petitioner wrote to the Commissioner of the New York Department of Correctional Services, complaining that he had had no opportunity for a parole revocation hearing. The state replied that the Board of Parole had not made a final decision in petitioner's case and quoted the language (cited above) from the 1971 reply to petitioner's request, adding, "Should you be ordered returned to a state correctional facility you would, of course, be entitled to a revocation hearing."

Petitioner alleges that the existence of the detainer lodged against him seriously affects the conditions of his present confinement in that it prevents him from being transferred to a facility closer to his home, denies him the opportunity of participating in a pre-release program available to other prisoners, and denies him access to other rehabilitative programs. Petitioner contends that the parole violator detainer is inconsistent with his right to due process under the theory of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484 (1972). This court agrees.

Jurisdiction exists in this court because the respondent, federal custodian of the petitioner, is located in the Northern District of Georgia. Petitioner may challenge the legality of the detainer lodged against him (and the effects of that detainer upon his federal confinement) even though the expungement of that detainer would not result in his immediate release from prison. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). Furthermore, the alleged constitutional deprivation here relates to the conditions of petitioner's confinement, cognizable under 42 U.S.C. § 1983. Wilwording v. Swenson, 404 U.S. 249, 92 S.Ct. 407, 30 L.Ed.2d 418 (1971).

The issue at the heart of the petition is whether the punitive effects of a detainer upon a prisoner's current confinement, placed upon him by his federal custodian because of a pending parole revocation in a state proceeding, may remain in force when the state refuses to finally determine the question of revocation until the prisoner is released from his current confinement. "The constitutional question posed is whether the due process requirements of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), as applied to parole revocation require a timely hearing and disposition by the parole state when the parolee is in the custody of another governmental unit." Cooper v. Lockhart, 489 F.2d 308 (8th Cir. 1973).

It is now firmly established that due process is required in parole revocation proceedings. Morrissey v. Brewer, supra. Morrissey declared that due process required that there be, first, a reasonably prompt informal inquiry near the place of the alleged parole violation or arrest to determine if there is probable cause to believe that there has been a violation of conditions of parole. Petitioner here, however, is not challenging his lack of this "probable cause" hearing for, unlike the petitioners in Morrissey, conviction of a crime while on parole is the parole violation in this case. Petitioner here thus had full notice of the violation alleged and his guilt of the crime has been proven in a court of law beyond reasonable doubt. This, however, does not mean that a revocation hearing may be dispensed with for, as the Supreme Court pointed out in Morrissey, a revocation decision is a two-part process. "The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole." 408 U.S. at 479, 92 S.Ct. at 2599. The preliminary hearing mandated by Morrissey is meant to resolve that question. That the mere occurrence of a parole violation was clear here did not, however, relieve the state authorities of the need to address the second question of the revocation decision: "Should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?" 408 U.S. at 480, 92 S.Ct. at 2599. At such a "second-step" hearing the petitioner might well introduce evidence of mitigating circumstances to show that his violation does not warrant revocation. As it is not a foregone conclusion that conviction while on parole will automatically result in parole revocation and reincarceration, Morrissey's clear implication is that "a conviction during parole may alter the content of the revocation hearing, but it does not dispense with the requirement that such a hearing be promptly held." Sutherland v. District of Columbia Board of Parole, 366 F.Supp. 270, 272 (D.C.D.C. 1973). Contra Thomas v. United States Board of Parole, 354 F.Supp. 273 (D. Kan.1973).

The issue raised in this case is not one of first impression, but the courts that have addressed the issue thus far have not reached uniform results. The Eighth Circuit Court of Appeals held that the custodial state involved in Cooper v. Lockhart, 489 F.2d 308 (1973), denied the petitioner due process by continuing the effects of a detainer placed upon him solely on the strength of a request for him made by a sister state. The court found that the detainer had the effect of rendering the prisoner ineligible for many rehabilitation programs and benefits, and ordered the custodian to discontinue the detainer in the event that the detaining state did not, upon reasonable notice, request that the prisoner be made available for a prompt disposition of the parole revocation proceeding. Cf. Caffey v. Wyrick, 377 F. Supp. 160 (W.D.Mo.1974). Similarly, Judge Gesell held in Sutherland v. District of Columbia Board of Parole, supra, that a federal prisoner had a right to a prompt parole revocation hearing on a detainer warrant, and that the parole board could not wait until the prisoner's current sentence had been served before holding such a hearing. The court found the five-month delay to constitute incurable error and ordered the parole board to cancel its warrant as well as ordering the prison authorities to expunge the warrant from the prisoner's record. The District Court of the District of Columbia ordered the same relief again in Jones v. Johnston, 368 F. Supp. 571 (1974), saying that the petitioner had a right to a revocation hearing within a reasonable time despite the fact that the alleged parole violation was petitioner's conviction of a crime while on parole. The hearing was deemed to be required by due process "to provide a forum for the parolee, at the least, to introduce evidence of mitigating circumstances where the violation itself is conceded." 368 F.Supp. at 573-574. See also Marchand v. Director, United States Probation Office, 421 F.2d 331, 335, n. 5 (1st Cir. 1970).

Most recently, the District Court for the District of Columbia has again addressed the issue and held that a delay of over one and one-half years after taking a prisoner into federal custody for a second conviction without affording a parole revocation hearing denied the petitioners due process. The court ordered the federal detainer-warrants quashed and removed from the petitioners' files. Fitzgerald v. Sigler, 372 F.Supp. 889 (D.C.D.C.1974).¹

The issue is likewise not a novel one in the Fifth Circuit. The Fifth Circuit has repeatedly held that a parole violator warrant must be issued before the expiration of the maximum term of sentence for which parole was granted, but need not be served within that time and may be held in abeyance while an intervening sentence is being served. In other words, it has not been deemed improper for the Parole Board to delay the revocation hearing until the expiration of the later sentence. Landman v. Carlson, 463 F.2d 218 (5th Cir. 1972), cert. denied 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973); Galloway v. Attorney General, 451 F.2d 357 (5th Cir. 1971); Cox v. Feldkamp, 438 F.2d 1 (5th Cir. 1971), and cases there cited. More recently in Cook v. Attorney General, 488 F.2d 667 (5th Cir. 1974); Burnett v. United States Board of Parole, 491 F.2d 966 (5th Cir. 1974), and Trimmings v. Henderson, 498 F.2d 86 (5th Cir. 1974), it was held that the parole board need not grant a Morrissey-type revocation hearing to a parolee at the...