Strauss v. Smith, 16881
| Decision Date | 08 September 1969 |
| Docket Number | 17203.,No. 16881,16881 |
| Citation | 417 F.2d 132 |
| Parties | Robert L. STRAUSS, Petitioner-Appellant, v. P. G. SMITH, Warden U. S. Penitentiary, Terre Haute, Indiana, and Joseph Shore, United States Parole Board, et al., Respondents-Appellees. Robert L. STRAUSS, Petitioner, v. Honorable S. Hugh DILLIN, U. S. District Judge, Respondent. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Elmer Gertz, Wayne B. Giampietro, Chicago, Ill., for petitioner-appellant.
K. Edwin Applegate, U. S. Atty., Joel M. Friedman, Asst. U. S. Atty., Indianapolis, Ind., for respondents-appellees.
Before MAJOR, Senior Circuit Judge, and SWYGERT and KERNER, Circuit Judges.
The petitioner, Robert Strauss, filed two applications for a writ of habeas corpus in the district court, one on November 9, 1967 and the other on July 29, 1968. In No. 16881 the application for a writ was denied and petitioner appeals. In No. 17203 petitioner sought to mandamus Judge Dillin for failure to act on his second application for a writ. Subsequently, Judge Dillin denied petitioner's application for a writ of habeas corpus and the mandamus was construed as an appeal from the denial of the habeas corpus writ and was consolidated with No. 16881.
On October 27, 1960, petitioner was sentenced for mail fraud by the United States District Court for the Northern District of Illinois to a term of five years and was placed on probation. The court revoked probation on October 25, 1962 and petitioner was incarcerated until January 21, 1965 when he was paroled with one-thousand-six (1006) days of his sentence served. Some of the conditions of parole were that Strauss remain in Southern Illinois until October 24, 1967 and that he commit no crime nor be associated "with persons having a criminal record, bad reputation, nor with those engaged in questionable occupation."
On June 19, 1967 a warrant was issued for the arrest of Strauss for violation of the conditions of parole. The application for the warrant included a statement that petitioner was arrested in the possession of stolen goods at the scene of a robbery in Chicago, Illinois. On September 19, 1967 a second application for revocation of parole was filed charging that petitioner was arrested for conspiring with another federal probationer to perpetrate larceny by check-fraud schemes in Springfield, Illinois. A new warrant based on the second application was not issued. Petitioner was arrested on October 3, 1967 pursuant to the warrant of June 19, 1967. On October 24, 1967 petitioner was transferred to the United States Penitentiary at Terre Haute, Indiana, where he remains.
Robert Strauss filed a petition for a writ of habeas corpus in the district court on November 9, 1967. The district court on November 28, 1967 ordered the Warden of the United States Penitentiary at Terre Haute and the Parole Board to show cause why the writ should not be granted. Respondents filed a motion to dismiss on December 26, 1967. The district court held a hearing on January 28, 1968 and on February 21, 1968 the court granted a motion for summary judgment in favor of respondents. Petitioner appeals from the granting of this motion.
Petitioner first contends that he was denied due process because of delay in processing the application for the writ and for failure to grant a hearing as required by 28 U.S.C. § 2243. While § 2243 provides that an order to show cause is returnable in three days, with a possible extension of another twenty days, petitioner was not prejudiced by delay since the parties agreed to postpone a hearing until after the Parole Board held a hearing on the revocation of Strauss' parole.
Section 2243 also provides: "The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." Petitioner complains that he was not given an opportunity to present evidence and as a result the court improperly turned respondent's motion to dismiss into a motion for summary judgment. At the hearing petitioner was present and was given every opportunity to present his evidence. Counsel for petitioner told the court that the only issue was the validity of the warrant and that all the evidence was before the court. Section 2243 does not require an extensive hearing but instead requires a determination on the facts before the court. The district court having before it documentary evidence properly granted summary judgment for respondent. It is not necessary that a letter from the Chief Probation Officer to the United States Parole Board written prior to the filing of the application for a writ be accompanied by an affidavit in the absence of any evidence to the contrary. 28 U.S.C. § 2247.
In Hyser v. Reed, 115 U.S.App. D.C. 254, 318 F.2d 225 (1963), the court held that the preliminary interview after arrest provided for in the Parole Board's regulations must be held near the place where the parole violations occurred. Strauss contends that such an interview did not take place. The district court found that petitioner was read and given Form 59(a) which advised him of his right to a preliminary interview. Petitioner refused to fill out the form. A copy of Form 59(a) was also given to counsel for Strauss. Counsel discussed Form 59(a) with petitioner but Strauss still refused to complete the form. Strauss does not allege that he filled out Form 59(a) but merely says that he was denied a local interview. Under these facts the district court properly found that petitioner waived his right to a preliminary interview in the locale of the parole violations. See Phillips v. United States Board of Parole, 122 U.S.App. D.C. 235, 352 F.2d 711 (1965).
Petitioner also attacks the validity of the warrant of June 19, 1967 because of the delay from the time of the arrest on the robbery charge on November 10, 1966 until the issuance of the parole...
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