Preston v. Piggman, 73-1859.

• Decision Date: 18 April 1974
• Docket Number: No. 73-1859.,73-1859.
• Citation: 496 F.2d 270
• Parties: John Brenton PRESTON, Plaintiff-Appellant, v. Arthur PIGGMAN et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

496 F.2d 270 (1974)

John Brenton PRESTON, Plaintiff-Appellant, v. Arthur PIGGMAN et al., Defendants-Appellees.

No. 73-1859.

United States Court of Appeals, Sixth Circuit.

Argued January 31, 1974.

Decided April 18, 1974.

COPYRIGHT MATERIAL OMITTED

Robert Allen Sedler, Lexington, Ky., for appellant ; Richard N. Rose, Lexington, Ky., on brief.

Thomas A. Ainley, Asst. Atty. Gen., for appellees ; Ed W. Hancock, Atty. Gen., Frankfort, Ky., on brief.

Before PHILLIPS, Chief Judge, MILLER, Circuit Judge, and McALLISTER, Senior Circuit Judge.

WILLIAM E. MILLER, Circuit Judge.

Recent decisions of the United States Supreme Court have recognized that parole cannot be revoked without affording the parolee the procedural fairness guaranteed by the due process clause of the fourteenth amendment. Morissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ; Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973). On this appeal we are called upon to decide whether certain revocation procedures of the Kentucky Parole Board comply with this standard.

In March of 1971 the appellant was paroled from a life sentence for armed robbery. His parole was conditioned on his not entering Johnson County, Kentucky, (the county in which he was tried and convicted) and the contiguous counties. Among these "forbidden counties" was Magoffin—appellant's home county and the one in which his parents and relatives lived. The Parole Board placed him with his sister, Mary Lou Brown, who operated a restaurant in California. Appellant worked in the restaurant until it was sold by the sister when she decided to return to Magoffin County, Kentucky.

Appellant then petitioned the Kentucky Parole Board to allow him also to return. After considerable delay, the Board agreed but refused to allow him to enter Magoffin County. Instead, appellant's new parole district was Lee County, Kentucky, where he was to work for and live with the Charles Brothers, a country music group. The playing engagements of the Charles Brothers were so few that appellant was unable to make a living from this association. Moreover, the housing conditions with the Charles Brothers and their families became so crowded that appellant eventually had to live in the back of an old station wagon.

Appellant notified his parole officer, Jesse Van Cleve, of his difficulties and requested that he be allowed to return to Magoffin County where there was work for him, and where he could live with either his mother or his sister. Van Cleve later testified before the district court that he and his supervisor, Tom Douglas, "talked about it that the boy just couldn't survive where he was and there would have to be something done about it." However, the Parole Board did not act on appellant's request.

In May of 1972 appellant contacted an attorney to see whether legal action could be taken to have the conditions of his parole changed so that he could move to Magoffin County. As a result, in June of 1972 a suit was filed in the court below alleging that the Board had acted unconstitutionally in prohibiting appellant from entering Magoffin County. Before the court held a hearing in the case, appellant returned to Magoffin County to live with his mother and sister. While there he apparently did not report to his parole officer in Lee County. As a consequence, the Parole Board issued a notice of a preliminary hearing on the revocation of appellant's parole. The reasons given for the hearing were that he had left the parole district without permission and had absconded— failed to report to the parole officer and make his location known to him. The hearing was to be held at the Estill County Jail on August 28, 1972. Appellant later testified that he feared going to the jail because he believed that the Board might have him incarcerated. So, instead of appearing at the preliminary hearing, he went to Jackson, Michigan, and took a job there. The hearing was held despite appellant's absence, and a parole violation warrant was issued for his arrest. He was soon found and returned to Kentucky.

On November 15, 1972, the Parole Board held a formal parole revocation hearing. Appellant's written request for permission for his retained counsel to attend the hearing was denied, but no reason was given for the denial. According to the testimony of Mrs. Lucille Roebuck, chairman of the Parole Board, the revocation hearing lasted no longer than five minutes. The sole purpose of the hearing was to determine whether appellant had left the district without permission and had absconded. It was the Board's fixed policy to revoke parole if the parolee violated any of the restrictions placed upon him. The proceedings made no provision for the parolee to offer evidence or testimony in mitigation of his offense. Appellant was asked to leave the hearing room, and the Board voted to revoke parole and defer any further action for two years. He was then imprisoned in the state pentitentiary at Eddyville.

Shortly after appellant's lawyer learned that a parole violation warrant had been issued, he sought to amend the original complaint to add the members of the Parole Board as parties defendants and also to challenge the validity of the revocation proceedings. Additionally, he sought declaratory relief and a temporary restraining order to enjoin continuation of the proceedings. Although the court granted leave to amend, it denied the motion for a temporary restraining order. After the Parole Board had already made its decision and revoked parole, the district court held an evidentiary hearing on appellant's amended complaint. Subsequently, the court dismissed the complaint. In its memorandum opinion the court held that the challenge to the conditions of parole were rendered moot by the subsequent parole violation and reincarceration of the appellant. Furthermore, due process was found to have been satisfied by the procedures followed by the Board in revoking appellant's parole.

We first consider the two procedural issues raised on this appeal: first, whether the Parole Board should have made provision in its proceedings for the presentation by appellant of evidence of mitigating circumstances that might have justified a sanction less severe than revocation ; and second, whether appellant should have been permitted to have the assistance of his privately retained attorney at the revocation hearing.

Parole is no longer a state of administrative grace that may be summarily and arbitrarily ended at the whim of a parole board. Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 4, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Rather, a parolee has substantial liberty. Although such liberty is not the equivalent of that enjoyed by an ordinary citizen, it is greater than that enjoyed by one incarcerated for a crime. However this liberty may be restricted, it may not be terminated without the rudiments of procedural due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). What is at stake is not simply technical legal notions of what steps must be followed in a revocation hearing. Instead, there is involved "a profound attitude of fairness between man and man, and more particularly between the individual and government. . . ." Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162-163, 71 S.Ct. 624, 643, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). The concept of fundamental fairness was obviously at the heart of its decision when the Supreme Court in Morrissey defined certain procedures that must be followed before parole may be revoked.

The Court spoke of revocation of parole as a two-step process. The first is a preliminary hearing at the time of arrest or detention to determine whether there is probable cause to believe that the parolee has violated the conditions of his parole. The second involves the more comprehensive revocation hearing itself. At this second hearing the Board must resolve disputed facts and decide "whether the facts as determined warrant revocation." 408 U.S. at 488, 92 S.Ct. at 2603. Crucial to the issue now before us the following characterization by the Court of the revocation hearing :

"The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation." 408 U.S. at 488, 92 S.Ct. at 2603.

Thus, due process requires that a parolee who has admitted violating a condition of his parole is still entitled to...