Shepard v. U.S. Bd. of Parole

• Decision Date: 07 September 1976
• Docket Number: D,No. 999,999
• Citation: 541 F.2d 322
• Parties: Lyman T. SHEPARD, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee. ocket 76-2021.
• Court: U.S. Court of Appeals — Second Circuit

Page 322

541 F.2d 322

Lyman T. SHEPARD, Appellant, v. UNITED STATES BOARD OF PAROLE, Appellee.

No. 999, Docket 76-2021.

United States Court of Appeals Second Circuit.

Argued May 10, 1976.

Decided Sept. 7, 1976.

Phylis Skloot Bamberger, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City, of counsel), for appellant.

Mitchell B. Dubick, Atty., Dept. of Justice, Washington, D. C. (Richard L. Thornburgh, Asst. Atty. Gen., George W. Calhoun, Atty., Dept. of Justice, Washington, D. C., of counsel), for appellee.

Before KAUFMAN, Chief Judge, and SMITH and MANSFIELD, Circuit Judges.

J. JOSEPH SMITH, Circuit Judge:

Lyman Shepard, a federal parolee serving a state prison sentence for a crime committed while on parole, appeals an order entered by the United States District Court for the Northern District of New York James T. Foley, Chief Judge, denying his habeas corpus petition seeking relief in absence of prompt parole revocation hearing. We reverse and remand.

I.

In July of 1972, on conviction for interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. § 2312, Shepard was sentenced under the Youth Corrections Act to an indeterminate term of imprisonment not to exceed six years. On April 18, 1974, he was paroled. On December 17, 1974 he was sentenced in a New York state court for attempted second-degree robbery to a term of up to four years' imprisonment. He has been in a New York correctional facility since December of 1974.

In January, 1975, the federal parole board ("the Board") filed at the New York facility as a detainer against Shepard a parole violation warrant based on his state conviction. Shepard requested a prompt parole revocation hearing to present evidence in mitigation of the charges underlying the warrant. But, in accordance with its regulations, after reviewing Shepard's case, the Board allowed the detainer to stand without affording him the requested hearing, promising only to re-examine his case in one year.

In November of 1975 Shepard filed his habeas corpus application. In it he alleged that, solely because of the detainer lodged against him, he was prevented from participating in educational and temporary release programs and from benefiting from other privileges generally available to inmates. He also claimed that the Board's delay in affording him a parole revocation hearing was impairing his ability to present evidence in mitigation of the charges underlying the detainer. Shepard contended that the Board's failure to afford him a prompt revocation hearing violated his right to due process. The application was denied by the district court, and Shepard appealed.

II.

The court below had jurisdiction to entertain the instant habeas petition under 28 U.S.C. § 2241. The lodging of the parole violation warrant as a detainer against Shepard satisfied § 2241(c)(3)'s "in custody" requirement. ¹ See, e. g., Jones v. Johnston, 534 F.2d 353, 357 (D.C.Cir., 1976).

III.

On May 14, 1976, four days after oral argument before us, the statutory and regulatory framework challenged in Shepard's habeas application was replaced by the Parole Commission and Reorganization Act, Pub.L.No.94-233, and regulations promulgated in accordance therewith. Prior to May 14, the Board's treatment of Shepard was regulated primarily by 28 C.F.R. § 2.53:

(a) In those instances where the prisoner is serving a new sentence in an institution, the warrant may be placed there as a detainer. Such prisoner shall be advised that he may communicate with the Board relative to disposition of the warrant, and may request that it be withdrawn or executed so his violator term will run concurrently with the new sentence. Should further information be deemed necessary, the Regional Director may designate a hearing examiner panel to conduct a dispositional interview at the institution where the prisoner is confined. At such dispositional interview the prisoner may be represented by counsel of his own choice and may call witnesses in his own behalf, provided he bears their expenses. He shall be given timely notice of the dispositional interview and its procedure.

(b) Following the dispositional review the Regional Director may:

(1) Let the detainer stand;

(2) Withdraw the detainer and close the case if the expiration date has passed; (3) Withdraw the detainer and reinstate to supervision; thus permitting the federal sentence time to run uninterruptedly from the time of his original release on parole or mandatory release;

(4) Execute warrant, thus permitting the sentence to run from that point in time. If the warrant is executed, a previously conducted dispositional interview may be construed as a revocation hearing.

(c) In all cases, including those where a dispositional interview is not conducted, the Board shall conduct annual reviews relative to the disposition of the warrant. These decisions will be made by the Regional Director. The Board shall request periodic reports from institution officials for its consideration.

In accordance with this regulation, after reviewing Shepard's case but without affording him an evidentiary hearing, the Board allowed his detainer to stand and promised to re-examine his case in one year. Shepard claims that due process entitled him to an evidentiary hearing. The Board, on the other hand, contends that the procedures required by 28 C.F.R. § 2.53 were constitutionally sufficient, especially when considered in light of Shepard's right under what was then 18 U.S.C. § 4207 to a revocation hearing if he was subsequently "retaken" upon his parole violation warrant. ² Shepard's position finds support in some of the circuits: Jones v. Johnston, 534 F.2d 353 (D.C. Cir., 1976); United States ex rel. Hahn v. Revis, 520 F.2d 632 (7th Cir. 1975); Cleveland v. Ciccone, 517 F.2d 1082 (8th Cir. 1975); the Board's in others: Reese v. United States Board of Parole, 530 F.2d 231 (9th Cir., 1976); Colangelo v. United States Board of Parole, 517 F.2d 1404 (6th Cir., 1975); Gaddy v. Michael, 519 F.2d 669 (4th Cir., 1975); Orr v. Saxbe, 517 F.2d 1399 (3d Cir., 1975); Small v. Britton, 500 F.2d 299 (10th Cir. 1974); Cook v. United States Attorney General, 488 F.2d 667 (5th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974). The Supreme Court has granted certiorari in Moody v. Daggett, 424 U.S. 942, 96 S.Ct. 1408, 47 L.Ed.2d 347 (1976), to resolve the conflict.

IV.

Recent cases have made it plain that due process entitles a parolee such as Shepard to an evidentiary hearing prior to the final decision to revoke his parole.

There must also be an opportunity for a hearing, if it is desired by the parolee, prior to the final decision on revocation by the parole authority. This hearing must be the basis for more than determining probable cause; it must lead to a final evaluation of any contested relevant facts and consideration of whether the facts as determined warrant revocation.

Morrissey v. Brewer, 408 U.S. 471, 487-88, 92 S.Ct. 2593, 2603, 33 L.Ed.2d 484 (1972).

The Board nevertheless argues that Morrissey does not establish Shepard's right to a hearing, pointing out that unlike Shepard, neither of the parolees in Morrissey had been convicted of committing a crime while on parole and quoting the Court to the effect that:

Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.

408 U.S. at 490, 92 S.Ct. at 2605.

This language may limit the issues, but does not do away with the hearing requirement.

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 violation does not warrant revocation.

408 U.S. at 488, 92 S.Ct. at 2603. Gagnon v. Scarpelli, 411 U.S. 778, 787-90, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), reaffirmed the due process right to hearing even after a conviction and went one step further, finding a due process right to be represented at a revocation hearing by appointed counsel when parolee's indigence, complex and difficult claims to mitigation, and other circumstances dictate.

V.

The timing of the required hearing is in dispute, however.

Morrissey and Gagnon do not determine whether Shepard is entitled to a revocation hearing during his intervening prison sentence. It is nevertheless clear that during his intervening incarceration he does have a due process right to contest in some meaningful manner the parole violation warrant lodged against him as a detainer.

The Board "often" makes the decision not to revoke where a parolee such as Shepard has served a prison sentence for the intervening offense underlying the warrant pending against him. ³ But when the Board does not reach this decision until after the parolee has been transferred to a federal facility, his confinement there is unwarranted. Due process protects parolees from such unwarranted confinement. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 781, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

The Board relies on the Court's statement in Morrissey that a two-month lapse between a parolee's reimprisonment and his final revocation hearing was not unreasonable. 408 U.S. at 488, 92 S.Ct. 2593. ⁴ The parolees in Morrissey, however, had not been sentenced to an intervening term of imprisonment. Consequently, prior to the commencement of the two-month period of incarceration sanctioned there, the Board had had virtually no notice of the need for a revocation hearing and the parolees had not already served prison terms for the misconduct charged in their parole violation warrants. By contrast, in a case such as Shepard's, the Board has no comparable excuse for delay, and the possibility of further unjustified incarceration appears to be considerably greater.

...