U.S. ex rel. Sims v. Sielaff

• Decision Date: 06 October 1977
• Docket Number: No. 76-2070,76-2070
• Citation: 563 F.2d 821
• Parties: UNITED STATES of America ex rel. George SIMS, Petitioner-Appellee, v. Allyn SIELAFF, Director, Illinois Department of Corrections, and David Brierton, Warden, Stateville Correctional Center, Respondents-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 821

563 F.2d 821

UNITED STATES of America ex rel. George SIMS, Petitioner-Appellee, v. Allyn SIELAFF, Director, Illinois Department of Corrections, and David Brierton, Warden, Stateville

Correctional Center, Respondents-Appellants.

No. 76-2070.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 15, 1977.

Decided Aug. 31, 1977.

Rehearing and Rehearing En Banc Denied Oct. 6, 1977.

William J. Scott, Atty. Gen., Melbourne A. Noel, Jr., Asst. Atty. Gen., Chicago, Ill., for respondents-appellants.

Thomas Peters, Chicago, Ill., for petitioner-appellee.

Before FAIRCHILD, Chief Judge, and PELL and TONE, Circuit Judges.

PELL, Circuit Judge.

The question before us in this habeas corpus case is whether the State of Illinois denied petitioner Sims due process when it revoked his parole.

I

In 1959, Sims was convicted by an Illinois court of murder, and was sentenced to 199 years in prison. On December 15, 1972, he was released on parole.

On February 2, 1975, Sims, under suspicion of having committed two rapes and an assault, was stopped by the Jacksonville, Illinois, police while he was driving his automobile. He was then arrested on charges of driving while under the influence of alcohol and illegally transporting liquor in a motor vehicle. Subsequently, Sims' parole officer issued a parole violation warrant and Sims, waiving a preliminary hearing on the parole violation question, was returned to prison. Sims was never indicted or convicted on any of these charges. ¹

On April 22, 1975, Sims' parole was revoked after a revocation hearing that in no way complied with the minimum due process requirements articulated in Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). ² The Parole Board failed to advise Sims of the evidence against him, denied him the opportunity to confront and cross-examine adverse witnesses, and never provided a written statement of the evidence relied on and the reasons for revoking parole. Each of these was clearly and specifically required by Morrissey. Id. at 489, 92 S.Ct. 2593. Moreover, although our record does not contain whatever police reports and other documents were before the Board, it is apparent that unsupported allegations of the suspected rapes and the assault reached and influenced the Board, notwithstanding the Board's refusal formally to base revocation on those incidents and its later statements that the revocation was based on the DWI and illegal transportation charges. ³ Finally, even as to those latter charges, absolutely no evidence was adduced at the hearing to support a finding under any evidentiary standard that Sims had committed the offenses and thus violated his parole agreement. ⁴ See Vachon v. New Hampshire, 414 U.S. 478, 480, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974) (per curiam). Sims was the only witness who testified, and while he admitted driving after having been drinking, he flatly denied having driven while intoxicated and likewise denied that the flask found in his car had contained any liquor at the time of his arrest. ⁵

The State attempts to explain the inadequacies of the April 22 hearing by arguing that the Parole Board is a non-judicial body composed of non-lawyers and that the Board in this case made an inadvertent but good faith misinterpretation of Sims' testimony as containing admissions of the DWI and transportation charges. In a case where the parole violation is admitted, the State argues, not unpersuasively, see Morrissey, supra, 408 U.S. at 490, 92 S.Ct. 2593, less process is due the parolee. Sims, on the other hand, asserts that the "highly educated and sophisticated members of the Board" must have realized the distinction between having a drink and being intoxicated, denies that the constitutional errors were or could have been inadvertent, and suggests that the Board knowingly, egregiously, and intentionally violated his rights. ⁶ The district court did not resolve this characterization conflict with a factual finding, and we are not able to do so on this record. We do note, however, that it is surely conceivable that a body of laymen, pressed with the need to deal with numerous parolees daily and making decisions, so far as appears, without benefit of a transcript could have, in good faith, made the erroneous interpretation of Sims' testimony that apparently was made here. We also point out, on the other hand, that the good faith nature of the Board's mistake does not change the constitutional fact that Sims' parole was revoked without due process.

On July 29, 1975, Reverend William Johnson, the Director of the Ministry of Criminal Justice of the Northern Illinois Conference of the United Methodist Church, dispatched a three-page letter with documentary attachments to the Board, requesting a rehearing on the revocation decision. By letter of September 5, 1975, the Board denied the request "after a thorough review of Mr. Sims' entire file," noting that "(t)he record discloses that the parole revocation was based upon an admission by Mr. Sims" that he committed the DWI and transportation offenses. By letter of even date, the Board advised a "711 Attorney" ⁷ at the Prisoners Legal Assistance office, two of whose attorneys continue to represent Sims, that rehearing had been denied. Our record provides no indication of the precise nature of the attorney's prior contacts with the Board, but the Board's letter states that Sims' "admission" as to the DWI and transportation charges constituted the "factual information relied upon by the Parole Board," apparently in response to a query along those lines. ⁸ Thus, the Board's attention was twice directed to Sims' case between the end of July and early September, 1975, and after a "thorough review" of the case records, the Board continued to insist upon its position that Sims had admitted the pertinent offenses.

In February 1976, Sims filed a petition for habeas corpus in the district court. Only thereafter did the Board decide to grant a rehearing. On April 22, 1976, a revocation rehearing was held, at which Sims was represented by counsel and numerous witnesses were called. The earlier revocation decision was affirmed. The district court did not need to consider whether or not the procedural requirements of Morrissey, supra, were met in the second hearing, ⁹ because it concluded that Morrissey's guarantee of a reasonably prompt revocation hearing, 408 U.S. at 488, 92 S.Ct. 2593, was violated here. Relying on this court's decisions in United States ex rel. Hahn v. Revis, 520 F.2d 632 (7th Cir. 1975); ¹⁰ and Johnson v. Holley, 528 F.2d 116 (7th Cir. 1975), the district court determined that the nine-month delay between the July 1975 rehearing petition and the April 1976 hearing was unreasonable, and that prejudice therefrom must be presumed as a matter of law. Accordingly, on September 24, 1976, the district court granted the writ of habeas corpus. The State appealed.

II

An element of the fair process due a parolee facing revocation is that "(t)he revocation hearing must be tendered within a reasonable time after the parolee is taken into custody." Morrissey, supra, 408 U.S. at 488, 92 S.Ct. at 2603-04. Sims' first revocation hearing was held less than three months after he was taken into custody and no contention has been made that this delay violated due process. On the other hand, as the first hearing did not comport with the then well-known requirements of due process, it would not ordinarily serve to stop the clock on the obligation to give Sims a fair hearing. We do not think, nonetheless, that the promptness of the first hearing should be totally disregarded. If the revocation decision was made in good faith on the basis of an inadvertent error, that would provide a neutral reason explaining that part of the delay (prior to the second hearing) which occurred before July 29, 1975, when the Board's attention was redirected to the Sims case and a rehearing was requested. July 29 is all the more a significant date in this case, because, coincidentally, this court's decision in United States ex rel. Hahn v. Revis, supra, which referred to the delay issue, was issued on July 25, 1975. In Johnson v. Holley, supra, it was held that Hahn's teachings should not be applied retroactively. Hahn, involving a federal parolee rather than a state parolee, first appeared in a bound volume of the Federal Reporter (2d) bearing a 1976 printing date. Further, we note that even if a habeas action had been filed by Sims fairly promptly after the first revocation hearing, the normal progress of litigation is such that by the time of appellate disposition, if that had directed a due process hearing by the Board, the calendar time of the rehearing might well have been later than the date of the rehearing actually afforded by the Board.

In Hahn, this court held that a federal parolee serving time on a state sentence based on conduct occurring during his parole, against whom a federal parole violation warrant had been lodged with the state prison authorities, had a right to a reasonably prompt disposition of the parole violation charge. (The Supreme Court has abrogated this aspect of Hahn. Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976). See discussion infra.) In Hahn, a petitioner who had not received a revocation hearing in the more than two years following his state court conviction was ordered released from the restraint of the violation warrant. In a footnote pertinent to a parolee's right to have a revocation hearing within a reasonable time after a criminal conviction established a parole violation, the court stated:

A reasonable time would appear to be no longer than the length of time delay is presently sanctioned between the time a violation warrant is executed and a revocation hearing is held. As a general rule, three months appears to be the maximum delay tolerated. Marchand v. Director, U. S. Probation Office, 421 F.2d 331, 335 n.5 (1st Cir. 1970)...