Sneed v. Donahue, 92-6425

• Decision Date: 24 May 1993
• Docket Number: No. 92-6425,92-6425
• Citation: 993 F.2d 1239
• Parties: Mitchell SNEED, Petitioner-Appellant, v. David DONAHUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1239

993 F.2d 1239

Mitchell SNEED, Petitioner-Appellant, v. David DONAHUE, Respondent-Appellee.

No. 92-6425.

United States Court of Appeals Sixth Circuit.

Submitted May 3, 1993.

Decided May 24, 1993.

Mitchell Sneed (briefed), pro se.

Suzanne D. Cordery (briefed), Office of the Gen. Counsel, Corrections Cabinet, Frankfort, KY, for respondent-appellee.

Before: MILBURN, RYAN, and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

Petitioner Mitchell Sneed appeals the dismissal of his writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 alleging that the automatic revocation of his parole without a hearing pursuant to Kentucky law violates the Due Process Clause of the Fourteenth Amendment. On appeal, the issues are (1) whether the automatic revocation of petitioner's parole status without a hearing pursuant to Kentucky Revised Statutes Annotated § 439.352 (Baldwin 1962) upon petitioner's incarceration for conviction of a crime committed while on parole violates the Due Process Clause of the Fourteenth Amendment, and (2) whether the aggregation of petitioner's sentences for the crimes for which he was convicted violates constitutional standards. For the reasons that follow, we affirm.

I.

A.

Petitioner is currently an inmate committed to the custody of the Kentucky Department of Corrections. He is serving a total sentence of forty-six years for the offenses of first-degree robbery, second-degree escape, second-degree persistent felony offender, and first-degree promoting contraband, all in violation of Kentucky law.

Petitioner was originally committed to the custody of the Kentucky Department of Corrections on July 15, 1976, to serve a sixteen-year sentence for six counts of first-degree robbery and one count of second-degree escape. On May 6, 1980, petitioner was granted parole but held under detainers filed by Trimble County, Kentucky, and Vanderburgh County, Indiana. At the time of his parole, petitioner's parole discharge date was March 7, 1992.

In July of 1981, he was granted parole status by Indiana authorities on an Indiana sentence. Indiana released him from parole supervision in March 1983. In March 1987, while still on parole in Kentucky, he was arrested for the offense of first-degree robbery and subsequently convicted of this offense and for being a persistent felony offender in violation of Kentucky law. On June 16, 1987, he received a twenty-year sentence for these crimes. On June 24, 1987, after being convicted again on another offense of first-degree robbery in violation of Kentucky law, petitioner was sentenced to ten years. He was then recommitted to the custody of the Kentucky Department of Corrections on July 20, 1987, to serve his new sentences. Consequently, the Kentucky Parole Board ("Board") revoked his parole status with respect to his original sixteen-year sentence pursuant to Ky.Rev.Stat. § 439.352.

In 1988, petitioner was convicted of promoting contraband in violation of Kentucky law and was sentenced to two years incarceration. Petitioner's sentences for each of his convictions, including the original conviction resulting in a sixteen-year sentence, were aggregated for a total of forty-six years incarceration.

B.

After exhausting his state remedies, petitioner filed his petition for writ of habeas corpus under 28 U.S.C. § 2254 in the district court. The district court referred the matter to the magistrate judge, pursuant to 28 U.S.C. § 636(b)(1), who made a report and recommendation that the petition for writ of habeas corpus be dismissed. On October 21, 1992, the district court accepted the magistrate judge's findings of fact, conclusions of law, and recommendation and dismissed the petition for writ of habeas corpus. This timely appeal followed.

II.

A.

"[A] parolee has significant liberty interest in a parole which is entitled to protection under the Due Process Clause." Moss v. Patterson, 555 F.2d 137, 138 (6th Cir.) (per curiam), cert. denied, 434 U.S. 873, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977). Petitioner Sneed argues that he was deprived of procedural due process as required by the Fourteenth Amendment when his parole was automatically revoked without a final hearing pursuant to Ky.Rev.Stat. § 439.352 which states in relevant part:

[R]ecommitment of a parolee to prison on a new sentence received for commission of a crime while on parole shall automatically terminate his parole status on any sentence on which he has not received a final discharge, or a restoration of civil rights, prior to the date of recommitment.

The district court held that Sneed had no clearly established right to a parole revocation hearing in 1987 when his parole was revoked and, therefore, denied the petition for writ of habeas corpus.

This case involves solely a question of law; the facts are not disputed. Therefore, we review the district court's denial of Sneed's petition for writ of habeas corpus de novo. See Lundy v. Campbell, 888 F.2d 467, 469 (6th Cir.1989), cert. denied, 495 U.S. 950, 110 S.Ct. 2212, 109 L.Ed.2d 538 (1990).

B.

In support of his due process argument, Sneed relies on Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Summers v. Scroggy, No. 87-5064, 1987 WL 38287 (6th Cir. July 31, 1987), cert. denied, 485 U.S. 941, 108 S.Ct. 1122, 99 L.Ed.2d 282 (1988). In Morrissey, the Supreme Court considered the question of what due process is required before an individual's parole status may be revoked. The Court determined that there must be two opportunities for some type of informal hearing. Id. 408 U.S. at 485-488, 92 S.Ct. at 2602-2603. The first is a preliminary hearing to determine if probable cause exists to believe that the individual has violated his parole conditions. Id. at 485, 92 S.Ct. at 2602. In the present case, there was no need for such a preliminary hearing because the fact that Sneed was incarcerated for a subsequent offense was sufficient evidence to support a finding of probable cause that he had violated a condition of his parole. Moody v. Daggett, 429 U.S. 78, 86 n. 7, 97 S.Ct. 274, 278 n. 7, 50 L.Ed.2d 236 (1976); United States v. Cornog, 945 F.2d 1504, 1512 (11th Cir.1991).

The second hearing required by Morrissey is a final revocation hearing which serves two purposes. The first purpose is to determine whether the individual has in fact violated his parole. The second purpose "involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts." Id. 408 U.S. at 480, 92 S.Ct. at 2599. The Court explained that this step involves the exercise of discretion on the part of the parole authority in that it may consider mitigating circumstances presented by the parolee which may indicate that revocation is not warranted notwithstanding the parole violation. Id. at 480, 488, 92 S.Ct. at 2599, 2603. In sum, this final revocation hearing should

assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior.

Id. at 484, 92 S.Ct. at 2601.

In Moss v. Patterson, 555 F.2d 137 (6th Cir.) (per curiam), cert. denied, 434 U.S. 873, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977), an appeal from the dismissal of a petition for a writ of habeas corpus, we discussed the impact of Morrissey upon a parolee's right to a hearing before his parole status is revoked. In Moss, the parolee committed a subsequent crime while on parole in Ohio, a violation of his parole conditions. The Ohio parole authority revoked his parole for this violation. Pursuant to Ohio Revised Code § 2929.41, no parole revocation hearing was given.

The district court in Moss determined that under Ohio Revised Code § 2929.41(B)(3), a parolee was automatically precluded from seeking reinstatement on parole where he was convicted of a subsequent crime until a statutory minimum had been served for the subsequent crime. Id. at 137. The district court then held that because no purpose would be served by a final revocation hearing, the parole authority had not violated due process by summarily revoking his parole. Id. at 137-38.

We disagreed with the district court's interpretation of Ohio Revised Code § 2929.41(B)(3). We noted that since our decision in Inmates Councilmatic Voice v. Rogers, No. C72-1052 (N.D.Ohio 1974), aff'd and modified, 541 F.2d 633 (6th Cir.1976), the "Adult Parole Authority ha[d] promulgated rules ... which afford[ed] final revocation hearings in all cases, including those where a parolee is convicted of a new crime." Id. at 138. We concluded that the district court's interpretation of Ohio Revised Code § 2929.41 would render those rules meaningless. Id. Thus, we held that a better interpretation of the statute was that "it has nothing whatsoever to do with when a parole should be revoked, but was designed to set out rules for the imposition of sentence on a subsequent conviction after a parole has been revoked." Id.; see also id. at n. 3.

Implicit in our holding in Moss is the determination that the Ohio Adult Parole Authority possessed discretion in determining whether to revoke the parolee's parole status following the commission of a new crime. We then held that to revoke parole without the benefit of a meaningful hearing concerning mitigating factors would conflict with the Supreme Court's holding in Morrissey. Id. at 138. Following this holding we stated, "[r]egardless of how the statute is construed, we adhere to the opinion expressed in Inmates Councilmatic Voice v. Rogers, 541 F.2d at 636, that a parolee convicted of a subsequent crime is entitled to a parole revocation hearing if he requests it...." Id. at 138-139. To the extent that this last statement means a final parole revocation hearing must be given even where a parole violation results in an automatic, nondiscretionary revocation of parole, it is dictum.

Having determined...