Steinberg v. Police Court of Albany, N. Y.

• Decision Date: 14 December 1979
• Docket Number: No. 78-3531,78-3531
• Citation: 610 F.2d 449
• Parties: Martin B. STEINBERG, Petitioner-Appellant, v. POLICE COURT OF ALBANY, NEW YORK, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 449

610 F.2d 449

Martin B. STEINBERG, Petitioner-Appellant, v. POLICE COURT OF ALBANY, NEW YORK, et al., Respondents-Appellees.

No. 78-3531.

United States Court of Appeals Sixth Circuit.

Submitted Oct. 8, 1979.

Decided Dec. 14, 1979.

Martin B. Steinberg, pro se.

Patrick H. Molloy, U. S. Atty., John M. Compton, Asst. U. S. Atty., Lexington, Ky., for respondents-appellees.

Before EDWARDS, Chief Judge, MERRITT, Circuit Judge, and PHILLIPS, Senior Circuit Judge.

HARRY PHILLIPS, Senior Circuit Judge.

Petitioner-appellant Martin B. Steinberg, a prisoner in the Federal Correctional Institute, Lexington, Kentucky, appeals from the district court's denial of his application for a writ of habeas corpus. We affirm.

I

In February 1974, the United States District Court for the Northern District of Texas sentenced petitioner-appellant Steinberg to a term of seven years' imprisonment. In May 1976, Steinberg was paroled.

A special condition of the parole required Steinberg to "seek outpatient mental therapy while on parole." After his release, Steinberg was treated at Jackson Memorial Hospital in Miami, Florida, first by the Crisis Intervention unit and later by the Lithium Group Clinic. As part of his treatment program, he received medication.

In December 1976, Steinberg left Miami and went to Orlando, Florida, where he rented an automobile. He drove to Albany, New York, where he was arrested for possession of the car, which the rental agency had reported stolen when Steinberg failed to return it. Steinberg entered a plea of guilty to a charge of unauthorized use of a motor vehicle, a lesser offense than possession of a stolen vehicle.

Subsequently, Steinberg was transferred to federal custody. The United States Parole Commission found that he had violated his parole by leaving the Miami area without permission, by ceasing to participate in the Lithium Clinic's outpatient treatment program, and by using a motor vehicle without authorization. The Commission found that the third violation constituted new criminal conduct. Applying re-parole guidelines, 28 C.F.R. § 2.21, the Commission revoked Steinberg's parole and specified that he must serve 24 to 32 months before becoming eligible for re-parole.

Steinberg attempted unsuccessfully to withdraw his state court guilty plea and to have the decision of the Parole Commission reversed. His application for a writ of habeas corpus was denied by the district court and he appeals.

II

Steinberg asks for habeas corpus relief from two different judgments. First, he asks this court to overturn his state court conviction on the ground that it is based on an invalid guilty plea. Second, he argues that the Parole Commission's judgment revoking his parole is arbitrary and capricious because it is based on the invalid state court conviction.

Steinberg says his failure to take his medication in December 1976, caused him to lose contact with reality. He claims to have no memory of why he rented a car and went to Albany or what he did before his arrest. Therefore, he contends that he could not be held criminally responsible for stealing the car. Moreover, he says, he was mentally incompetent to plead guilty and his guilty plea, therefore, was invalid. Finally, he argues that he entered a plea of guilty in return for a parole officer's unfulfilled promise that his parole would not be revoked and says that this made his plea involuntary. He now wants to withdraw the guilty plea and stand trial in the Police Court.

Steinberg's purpose in seeking to withdraw the guilty plea is to undercut his parole revocation. Implicit in his pro se request for habeas corpus relief from the Commission's decision is the argument that the alleged errors in his state court conviction invalidate his parole revocation. The premise of that argument is that, if Steinberg could not be held criminally responsible for stealing the car, neither could he be found to have violated his parole. We reject this premise and, accordingly, affirm.

III

We note initially that Steinberg's challenge to the decision to reincarcerate him must fail. The Commission gave three reasons for revoking parole: Steinberg stopped participating in his out-patient treatment program; he left the jurisdiction without permission; and he stole the car. Under the Parole Commission and Reorganization Act, 18 U.S.C. § 4214(d)(1) (1976), it is clear that the Commission may revoke parole if it finds that the parolee has violated a condition of his parole. To justify revocation, it is not necessary that a violation be criminal. Clark v. Stevens, 291 F.2d 388 (6th Cir. 1961); Lewis v. United States Parole Commission, 448 F.Supp. 1327, 1330 (E.D.Mich.1978). See Mack v. McCune, 551 F.2d 251 (10th Cir. 1977). Steinberg's voluntary decision to cease taking his medication and participating in his out-patient treatment program independently was sufficient to justify his parole revocation. See Clark v. Stevens, 291 F.2d 388, 389 (6th Cir. 1961).

The Commission's order that Steinberg serve 24 to 32 months before becoming eligible for re-release presents a more difficult question. 28 C.F.R. § 2.21(a) specifies that if revocation is based on an administrative (non-criminal) parole violation, the parolee ordinarily will be eligible for re-parole within 16 months of the revocation. However, 28 C.F.R. § 2.21(b) states that, if the violation is criminal, eligibility for re-parole is to be determined according to the 28 C.F.R. § 2.20 guidelines for original parole eligibility. Apparently the application of these more stringent guidelines was the basis of the Parole Commission's determination that Steinberg must serve 24 to 32 additional months before becoming eligible for re-parole. The duration of Steinberg's reincarceration thus seems to depend directly on the state court conviction.

Overturning the state conviction would not necessarily entitle Steinberg to reconsideration of his reincarceration period. 28 C.F.R. § 2.21(b)(1) states that "New criminal conduct may be determined either by a new federal, state, or a local conviction or by an independent finding by the Commission at revocation hearing." This comports with the general rule that the Parole Commission may find a parole violation despite the parolee's acquittal of all criminal charges based on the same conduct. See Mack v. McCune, 551 F.2d 251 (10th Cir. 1977). Thus, only if Steinberg's lack of mental competence excused both his parole violation and his criminal conduct would he be entitled to habeas corpus relief.

Therefore, we must address the question of whether a parolee whose conduct arguably violates his parole may defend against revocation on the ground that his lack of mental competence made his acts non-volitional. In other words, we must decide whether insanity is a defense in a parole revocation hearing. We hold that it is not.

IV

Parole revocation proceedings answer two questions: whether a violation has occurred and, if so, what is to be done about it. As the Supreme Court said in Morrissey v. Brewer, 408 U.S. 471, 479-80, 92 S.Ct. 2593, 2599, 2600, 33 L.Ed.2d 484 (1972):

The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole. Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question 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. This part of the decision, too, depends on facts, and therefore it is important for the board to know not only that some violation was committed but also to know accurately how many and how serious the violations were. Yet this second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary.

There is no place in the fact-finding phase of a revocation hearing for an insanity defense. Parole is granted on the understanding that the parolee will observe conditions which are designed to guide him into constructive development and restrain antisocial propensities. See Morrissey v. Brewer, 408 U.S. 471, 478, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). A violation demonstrates that the parolee is either unwilling or unable to observe those conditions. It may indicate that parole is not a suitable mode of correctional treatment in his case, United States v. Manfredonia, 341 F.Supp. 790, 794 (S.D.N.Y.), Aff'd., 459 F.2d 1392 (2d Cir.), Cert. denied, 409 U.S. 851, 93 S.Ct. 61, 34 L.Ed.2d 93 (1972), or that the attempt to reintegrate the parolee into society has failed. What is important is whether the parolee violated his parole, not whether he did so voluntarily. At this fact-finding stage, the Commission's "concern is whether the law has...