Rose v. Haskins

• Decision Date: 05 January 1968
• Docket Number: No. 17809.,17809.
• Citation: 388 F.2d 91
• Parties: Herbert E. ROSE, Petitioner-Appellant, v. E. B. HASKINS, Superintendent, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

388 F.2d 91 (1968)

Herbert E. ROSE, Petitioner-Appellant, v. E. B. HASKINS, Superintendent, Respondent-Appellee.

No. 17809.

United States Court of Appeals Sixth Circuit.

January 5, 1968.

Herbert E. Rose, in pro. per.

William B. Saxbe, Atty. Gen. of Ohio, Leo J. Conway, Asst. Atty. Gen. of Ohio, Columbus, Ohio, for appellee.

Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.

WEICK, Chief Judge.

This appeal involves an important question of law relating to the power and authority of the federal courts in a habeas corpus proceeding to review an order of a state parole board revoking the parole of a prisoner who had been twice convicted of crimes in the state court, paroled twice, declared a parole violator the second time, and returned to state prison to serve his sentence there rather than outside the prison. The prisoner contends in this Court that his right to due process of law under the Fourteenth Amendment was violated when the state parole board declared him a parole violator without a hearing. This contention requires a determination as to whether a paroled prisoner, in custody of prison authorities, who has not served his sentence, possesses rights as distinguished from privileges. Resort must be had to state law to ascertain the status of state prisoners.

Rose was convicted in 1961 upon his plea of guilty in the Common Pleas Court of Franklin County, Ohio, to ten counts of an indictment charging him with committing forgeries. He was sentenced to an indeterminate term of from one to twenty years in the Ohio prison. While on parole he was convicted again in 1963 in the same court for issuing checks without sufficient funds in the bank, and was sentenced to concurrent terms of from one to three years' imprisonment.

No appeals were taken from either of these judgments of conviction or the sentences. Rose has never questioned their validity. In 1964 Rose was paroled on the 1963 sentence and reparoled on the 1961 sentence. In 1965 the Parole Commission again declared Rose a parole violator and returned him to prison, when it received information that he had molested his minor daughter. Such an offense is a felony under Ohio law, Ohio Rev.Code § 2903.01, and a violation of the conditions of his parole. His maximum sentence on the 1961 conviction will expire on October 14, 1982.

Rose instituted habeas corpus actions in the Court of Common Pleas of Madison County, Ohio, and in the Court of Appeals of that County, but was denied relief. He filed a habeas corpus proceeding in the Supreme Court of Ohio but that Court relegated him to his remedies under Ohio's new post-conviction statutes. Ohio Rev.Code § 2953.21 to 2953.24, inclusive (Supp. 1966). He did not pursue those remedies. Instead he filed a habeas corpus petition in the United States District Court for the Southern District of Ohio, which was dismissed without a hearing. This appeal followed.

The papers filed by Rose in the District Court indicate that after his arrest for parole violation, he requested the Assistant Prosecuting Attorney of Franklin County to prosecute him for the offense of molesting his daughter, so as "to afford me the right of defense", but he claims that the Prosecutor declined to do so giving as a reason that he could not prosecute without a warrant from his accuser. It should be observed also that such a prosecution, if successful, would add only an additional sentence to the seventeen years remaining to be served on his prior sentences.

Rose alleged in his habeas corpus petition that he was entitled under the Constitution to the "benefit of confrontment of his accusers, examination of witnesses, arraignment on the indictment, legal counsel, trial by jury, and the privilege of appeal", and that the action taken against him by the Parole Commission violated rights guaranteed to him under the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendments to the Constitution.

In the District Court Rose also filed a motion for a subpoena duces tecum to require the attendance of the Chairman and another member of the Parole Commission, and the production of all records of the Commission pertaining to his case, including reports to the Commission made by his parole officer and the district parole supervisor. He also requested subpoenas for the Assistant Prosecuting Attorney, for Rose's ex-wife who was his accuser, and for his father and mother. It is apparent that what Rose wanted was a trial in the District Court on the issue of his guilt for molesting his minor daughter.

The record does not show that he ever requested the Parole Commission to grant him a hearing. Limited hearings have been granted by the Parole Commission upon request, DiMarco v. Denton, 385 F.2d 556 (6th Cir. 1967), but not a judicial hearing.

In State ex rel. London v. Ohio Pardon & Parole Comm., 2 Ohio St.2d 224, 208 N.E.2d 137 (1965), the Supreme Court of Ohio held:

"Relator was returned to the Ohio Penitentiary in September 1963 as a parole violator. After his return thereto, he had a hearing before the commission, and his parole was revoked for the violation of four different rules of parole. Relator apparently is urging in his petition that he is entitled at his hearing on a violation of parole to all the rights accorded an accused in his original trial such as compulsory process to procure witnesses, counsel, etc. In other words, a complete judicial hearing.

"The position of the parolee was thoroughly considered in In re Varner, 166 Ohio St. 340, 142 N.E.2d 846. See also State ex rel. Newman v. Lowery, et al, Ohio Pardon and Parole Commission, 157 Ohio St. 463, 105 N.E.2d 643.

"The reasoning in the Varner case in relation to habeas corpus is equally applicable to an action in mandamus. The demurrer is sustained, and the writ is denied."

It is axiomatic that the administration of the state's penal system is exclusively a state function under the reserved powers in the Constitution. The state may thus enact legislation defining what conduct constitutes a crime and fixing the sentence to be imposed upon conviction therefor and the manner in which the sentence shall be served. The execution of the sentence is within the authority of the state's executive department. The state is not required to provide for parole and, if it does, may stipulate its terms and conditions as well as the status of a parolee. Parole is a matter of grace in Ohio, DiMarco v. Denton, Warden, 385 F.2d 556 (6th Cir. 1967); Cox v. Maxwell, Warden, 366 F.2d 765 (6th Cir. 1966).

Ohio has defined the status of a parolee. Ohio Rev.Code § 2965.01(E), in effect at the time, provided:

"(E) `Parole\' means the release from confinement in any state penal or reformatory institution, by the pardon and parole commission upon such terms as the commission prescribes. A prisoner on parole is in the legal custody of the department of mental hygiene and correction, and under the control of the commission." (Italics ours.)

A state prisoner on parole is in custody within the meaning of 28 U.S.C. § 2241. Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

Ohio Rev.Code § 2965.21, then in effect, conferred power on the Parole Commission to determine parole violations. It provided in part:

"* * * A prisoner who has been paroled, who in the judgment of the pardon and parole commission has violated the conditions of his * * * parole shall be declared a violator."

Nowhere in the parole statutes is there a provision for a hearing on parole revocation. Nor do the statutes provide for judicial review. The orders of the Commission are final in Ohio.

In re Varner, 166 Ohio St. 340, 142 N.E.2d 846 (1957), the Supreme Court of Ohio construed the Ohio parole statutes. Judge Taft, now Chief Justice, in delivering the opinion of the Court, said:

"There are statutory expressions which clearly indicate a legislative intent that a convict should be on parole only where his freedom would be consistent with the protection, welfare and security of society. Section 2965.09 Revised Code. It is apparent that the General Assembly expressly regarded such protection, welfare and security as of far more importance than even the temporary freedom on parole of any convicted felon.

"There is no express statutory requirement of any hearing before the commission declares a parolee to be a violator, and, where he is a violator, he may be arrested forthwith. Also, there is no apparent limitation provided with respect to the authority and power of the commission to determine that a parole violator should be imprisoned. Section 2965.21, Revised Code. In contrast there are some limitations on the authority of the commission to parole a convict. Sections 2965.18 and 2965.23, Revised Code.

"Under our statutes, one convicted of a felony does not cease to be a convicted felon when he is paroled. There is no `remission of penalty\' as there is with respect to a pardon. Subdivision (B) of Section 2965.01, Revised Code. As our statutes indicate, when a person is paroled, he is thereby merely released from confinement in a penal or reformatory institution. While on parole, he still remains `in the legal custody of the department of mental hygiene and correction and under the control of the commission.\' Subdivision (E) of Section 2965.01, Revised Code. His position, though usually more desirable, is in substance similar to that of a prisoner in a penal or reformatory institution who, because of good behavior, may, as a so-called `trusty,\' be allowed temporarily to leave the confines of the institution, but who is obviously, while enjoying that privilege, still within the legal custody and under the control of the head of that institution. It would hardly be contended that such a prisoner would be entitled to any hearing because of a determination by the head of the institution that he was no longer entitled to privileges which he had previously been accorded as a trusty. Nor could it

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