Robb v. Norton, Civ. No. B 74-379.

• Decision Date: 22 May 1975
• Docket Number: Civ. No. B 74-379.
• Citation: 394 F. Supp. 856
• Court: U.S. District Court — District of Connecticut
• Parties: Lester Paul ROBB v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

394 F. Supp. 856

Lester Paul ROBB v. John J. NORTON, Warden, Federal Correctional Institution, Danbury, Connecticut.

Civ. No. B 74-379.

United States District Court, D. Connecticut.

May 22, 1975.

Michael J. Churgin, Eric Schwartz, Law Student Intern, Dennis E. Curtis, Services Organization, New Haven, Conn., for petitioner.

Peter Dorsey, U. S. Atty., William Dow, III, Asst. U. S. Atty., New Haven, Conn., for respondent.

MEMORANDUM OF DECISION

ZAMPANO, District Judge.

Petitioner, presently incarcerated at the Federal Correctional Institution, Danbury, Connecticut, seeks dismissal of an unexecuted parole violator warrant issued by the United States Board of Parole ("the Board"), which has been lodged against him as a detainer at the prison. Petitioner contends that he has been prejudiced by the Board's failure to accord him a prompt parole revocation hearing.

In 1970, petitioner was sentenced to a five year term for escape. He was released on parole on September 24, 1973, with 716 days remaining on his sentence. Shortly thereafter, the petitioner allegedly absconded from supervision while on parole, and a parole violator warrant was issued by the Board on November 30, 1973.

On January 22, 1974, a federal arrest warrant was issued in the District of Colorado charging the petitioner with transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312. Petitioner was taken into federal custody pursuant to the arrest warrant and on January 24, 1974, was arraigned before the United States Magistrate in Grand Junction, Colorado. Petitioner was sentenced on April 9, 1974, to a term of three years in the Colorado United States District Court.

On June 7, 1974, the petitioner arrived at the Federal Correctional Institution, Danbury, where the unexecuted parole violator warrant was lodged as a detainer against him. Petitioner claims to have made numerous requests for an immediate parole revocation hearing, but he has received no such hearing to date. Approximately 18 months have now passed since the parole violator warrant was issued; 16 months have passed since petitioner was taken into federal custody; 14 months have expired since petitioner was convicted and sentenced in the Colorado federal court.

It is settled law that a parole "revocation hearing must be tendered within a reasonable time after the parolee is taken into custody." Morrissey v. Brewer, 408 U.S. 471, 488, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972); Shelton v. United States Bd. of Parole, 128 U.S.App.D.C. 311, 388 F.2d 567 (1967); United States ex rel. Buono v. Kenton, 287 F.2d 534 (2 Cir. 1961). The delay in this case is unreasonable and violative of due process, whether it is calculated from the date of the issuance of the parole violator warrant, Shelton v. United States Bd. of Parole, supra; Gaddy v. Michael, 384 F.Supp. 1390 (W.D.N.C.1974), or from the date the warrant commenced to operate as a detainer, Erhardt v. United States Bd. of Parole, Civil No. H-74-207 (D.Conn. Feb. 21, 1975). Petitioner is therefore entitled to a prompt revocation hearing from the Board. Erhardt v. United States Bd. of Parole, supra.

Petitioner argues that he is entitled to more. Suggesting that "it is now too late for respondent to cure his error by affording petitioner a revocation hearing," the petitioner urges that the detainer and the underlying parole violator warrant must be quashed. See Gaddy v. Michael, supra; Jones v. Johnston, 368 F.Supp. 571 (D.D.C.1974); Sutherland v. District of Columbia Bd. of Parole, 366 F.Supp. 270 (D.D.C.1973). To merit this relief, the petitioner must demonstrate actual prejudice resulting from the unreasonable delay in holding a parole revocation hearing. United States ex rel. Buono v. Kenton, supra at 536; Jenkins v. United States, 337 F. Supp. 1368 (D.Conn.1972); United States ex rel. Boulet v. Kenton, 271 F. Supp. 977 (D.Conn.1967); United States ex rel. Obler v. Kenton, 262 F.Supp. 205 (D.Conn.1967); United States ex rel. Hitchcock v. Kenton, 256 F.Supp. 296 (D.Conn.1966). Petitioner has failed to discharge this burden.

Petitioner has made no claim that the Board's delay has affected his ability to contest the charge that he absconded from parole supervision sometime after September 24, 1973. Nor has the petitioner asserted that he has been deprived of the opportunity to present evidence of mitigating circumstances or rehabilitative potential. Compare United States ex rel. Hitchcock v. Kenton, supra, and United States ex rel. Vance v. Kenton, 252 F.Supp. 344 (D.Conn. 1966), with Jenkins v. United States, supra, and United States ex rel. Obler v. Kenton, supra.

Petitioner does contend, however, that he has been deprived of the opportunity to receive a parole revocation sentence partially concurrent with the sentence he is now serving. See Gaddy v. Michael, supra at 1393; Sutherland v. District of Columbia Bd. of Parole, supra at 272. This contention fails to appreciate the range of options available to the Parole Board at a revocation hearing. The Board may, in its discretion, reinstate parole or a mandatory release date even where a violation has been found, 28 C.F.R. § 2.56(b), or the Board may revoke parole and require the parolee to serve the remainder of the term from which he had been paroled either concurrent with or consecutive to any other term of incarceration. Alternatively, the Board may revoke parole, but require the parolee to serve...