Tate v. Henderson

• Decision Date: 19 March 1973
• Docket Number: No. 72-2285. Summary Calendar.,72-2285. Summary Calendar.
• Citation: 470 F.2d 971
• Parties: Clarence TATE, Jr., Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, Atlanta, Georgia, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

470 F.2d 971 (1972)

Clarence TATE, Jr., Petitioner-Appellant, v. J. D. HENDERSON, Warden, United States Penitentiary, Atlanta, Georgia, Respondent-Appellee.

No. 72-2285. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

December 14, 1972.

Certiorari Denied March 19, 1973.

Clarence Tate, Jr., pro se.

John W. Stokes, Jr., U. S. Atty., William P. Gaffney, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

Certiorari Denied March 19, 1973. See 93 S.Ct. 1515

PER CURIAM:

Appellant is serving a 15-year sentence for bank robbery imposed under 18 U.S.C. § 4208(a)(2), which makes him eligible for parole at the discretion of the Parole Board. On a previous appeal, Tate v. Henderson, 453 F.2d 358 (5th Cir. 1971), he claimed that the Board was refusing to consider him for parole on the authority of 42 U.S.C. § 259(b), which provides, inter alia, that "no narcotic addict . . . confined in any institution, whether or not an institution of the Public Health Service, shall be released by reason of commutation of sentence or parole until the Surgeon General shall have certified that such individual is no longer an addict . ."

We vacated and remanded with these directions:

On remand the district court should determine whether in fact the Parole Board is denying all parole consideration to Tate due to his being or having been an addict; and whether any of Tate\'s legal rights are being violated by nonavailability to him of the Surgeon General\'s certification, or otherwise as alleged in the habeas corpus petition.

453 F.2d at 360. The District Court required the respondent to produce documents ascribing the grounds upon which appellant was denied parole or, alternatively, whether the alleged drug dependency problem affected his application for parole. Respondent filed an affidavit of an official of the Parole Board which stated in pertinent part:

The Examiner evaluated Mr. Tate as a sophisticated criminal who had displayed an aggravated pattern of crime by narcotic addiction and who was, in the opinion of the Examiner, potentially dangerous.

Since this summary and Mr. Tate\'s complete file was sic later reviewed by the Members of the Board prior to the time the Board Order was signed continuing his case with an Institutional Review Hearing in April of 1972, I would assume that Mr. Tate\'s purported addiction to drugs was just one of the factors which contributed to the Board\'s decision. As the Court may be aware, each Board Member votes independently of the other and, before completing action on any given case, thoroughly reviews all the available file material. Their decision represents the majority opinion of the Members and they do not indicate the various factors which entered into their judgment.

On the basis of the affidavits, orders, and other records in the file, the District Court concluded that sufficient circumstantial evidence supported appellant's claim of having a drug dependence problem and that, although the degree of its influence on his eligibility for parole was uncertain, a drug abuse problem was reflected in appellant's record before the Parole Board. The District Court further concluded that evidence of this problem could have a detrimental, although not a determinative, effect upon his chances for parole. It, therefore, directed respondent to determine whether appellant should be certified as a nonaddict within the meaning of 42 U.S.C.A. § 259(b), and further directed that the certificate, if granted, was to be placed in appellant's record with the United States Board of Parole.

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