Robinson v. Benson

• Decision Date: 24 February 1978
• Docket Number: No. 77-1775,77-1775
• Citation: 570 F.2d 920
• Parties: Lee Autry ROBINSON, Petitioner, Appellant, v. C. L. BENSON, Warden, Leavenworth Federal Penitentiary, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 920

570 F.2d 920

Lee Autry ROBINSON, Petitioner, Appellant, v. C. L. BENSON, Warden, Leavenworth Federal Penitentiary Respondent-Appellee.

No. 77-1775.

United States Court of Appeals Tenth Circuit.

Submitted Jan. 31, 1978.

Decided Feb. 24, 1978.

Lee Autry Robinson, pro se.

James P. Buchele, U. S. Atty., Mary K. Briscoe, Asst. U. S. Atty., Topeka, Kan., for respondent-appellee.

Before SETH, PICKETT and McWILLIAMS, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the United States District Court for the District Court for the District of Kansas denying habeas corpus relief sought pursuant to 28 U.S.C. § 2241. In affirming the district court order, we choose to discuss only Robinson's claims regarding the procedures followed in rescission of his parole.

Robinson had been convicted of interstate transportation of stolen securities and was sentenced to a term of five years imprisonment. Apparently, Robinson's date of parole had been approved. While residing at the Federal Correctional Institution, Kansas City, Kansas, awaiting parole, Robinson was arrested in Kansas City, Missouri, on charges of attempting to pass a bad check. He was held in the Jackson County Jail, Kansas City, Missouri.

A copy of the incident report was delivered to Robinson on July 26, 1976, reflecting that he was charged with violating staff rules, namely, the failure to obey local, state and federal laws. He was informed that a hearing would be conducted by the institutional disciplinary committee at the jail on July 29, 1976. He was told that he could have a staff member represent him at the hearing, to which he agreed.

The hearing conducted by the IDC was held prior to the state preliminary hearing on state charges. On August 1, 1976, Robinson was informed that the Board had found probable cause for rescission of parole. On October 13, 1976, the state charges were dismissed against him due to the inability to locate essential witnesses. Robinson was transferred to the Federal Penitentiary at Leavenworth, Kansas on October 27, 1976.

Thereafter, Robinson was informed that a final rescission hearing was scheduled for December 14, 1976. He allegedly requested appointment of counsel but was told that he had no such right to counsel, and that a staff member would represent him if he so desired. On December 13, 1976, Robinson was allowed access to the files in his case, finding that the board had relied on a staff member's opinion that the state had a strong case against him, and upon a writing sample taken after his arrest which appeared to match the writing on the bad check. On December 14, 1976, the final parole rescission hearing was held. Robinson was represented by a staff member, and Robinson's wife was present to testify in mitigation. The parole grant was rescinded and Robinson was continued in custody until expiration on April 14, 1978.

Robinson's petition presents the question of what due process rights must be afforded in parole rescission proceedings. See Sexton v. Wise, 494 F.2d 1176 (5th Cir. 1974); MacIntosh v. Woodward, 514 F.2d 95 (5th Cir. 1975); Williams v. United States Board of Parole, 383 F.Supp. 402 (D.Conn.1974); Green v. Nelson, 442 F.Supp. 1047 (D.Conn.1977).

As the Supreme Court stated in Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972):

"Due process is flexible and calls for such procedural protections as the particular situation demands. 'Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as the private interest that has been affected by governmental action.' . . . Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure."

There is no specific statute governing parole rescission proceedings. However, 28 C.F.R. § 2.34 (1976) states that when an effective date of parole has been set by the Commission, release on that date shall be conditioned on continued good conduct by the prisoner. That regulation refers to § 2.12 and § 2.13 which govern parole eligibility, and which generally provide for notice of charges, hearing, and written reasons for the denial of parole. Applicable Board regulations do not provide for appointment of counsel; however a prisoner may be represented by a person of his choice. Nor do these regulations provide for the opportunity to call witnesses or to confront and cross examine adverse witnesses.

As a result of the setting of Robinson's parole date, Robinson had more than a mere anticipation of freedom, but rather a concrete expectation contingent upon continued good behavior. Thus, Robinson was certainly entitled to minimum due process procedures. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). However, we observe that Robinson was not yet enjoying the liberty interest of a prisoner actually released on parole, as described in Morrissey v. Brewer, supra at 482, 92 S.Ct. 2593.

When Robinson's parole was rescinded, Robinson was returned to the federal penitentiary at Leavenworth, Kansas, and the parole board determined to continue him in custody until expiration. While Robinson's return to Leavenworth was at least in part predicated upon the rescission of parole, it is clear that the Attorney General pursuant to 18 U.S.C. § 4082(b) has authority to transfer a prisoner from one place of confinement to another...