United States ex rel. LiPuma v. Gengler

• Decision Date: 25 March 1976
• Docket Number: No. 75 Civ. 2587.,75 Civ. 2587.
• Citation: 411 F. Supp. 948
• Parties: UNITED STATES of America ex rel. Thomas LiPUMA, Petitioner, v. Louis J. GENGLER, Warden, Federal House of Detention For Men, Respondent.
• Court: U.S. District Court — Southern District of New York

411 F. Supp. 948

UNITED STATES of America ex rel. Thomas LiPUMA, Petitioner, v. Louis J. GENGLER, Warden, Federal House of Detention For Men, Respondent.

No. 75 Civ. 2587.

United States District Court, S. D. New York.

March 25, 1976.

Michelman & Michelman, New York City, for petitioner; Harvey J. Michelman, Jerry DeLuise, New York City, of counsel.

Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, for United States; Richard J. Weisberg, Asst. U. S. Atty., New York City, of counsel.

OPINION

EDWARD WEINFELD, District Judge.

Petitioner, now confined at the Green-haven Correctional Facility, Stormville, New York, under a state judgment of conviction, seeks his release from federal parole status. On January 10, 1969, he was sentenced in the United States District Court for the Western District of Michigan to five years' imprisonment following his conviction of bank robbery. His full-term expiration date was January 4, 1974.

Petitioner was released on parole on November 16, 1970. While a parolee he was indicted on February 1, 1972 in New York County for burglary in the second degree, petty larceny and criminal possession of stolen property in the third degree. Soon thereafter, on February 8, 1972, based upon these charges and association with persons engaged in criminal activity, the United States Board of Parole ("Parole Board") issued a parole violator's warrant. In accordance with its usual practice, the Parole Board instructed the United States Marshal to hold the warrant in abeyance pending the outcome of the criminal charges in New York County. Petitioner was enlarged on bail on those charges.

On May 10, 1974, petitioner was convicted of the charges in the New York County Supreme Court upon a jury trial and released on bail pending a presentence report. On May 14, 1974, pursuant to instructions by the Parole Board, the United States Marshal executed the warrant and took petitioner into custody. Petitioner was offered an immediate preliminary interview by a United States probation officer, but at petitioner's instance a postponement was granted. His attorney requested a further postponement and the interview was held on July 18 with petitioner and his attorney present. The United States probation officer found probable cause to hold petitioner for a revocation hearing, which was held at the Lewisburg Federal Penitentiary on October 17, 1974. Petitioner was represented at that hearing by counsel and waived calling witnesses. Following the hearing the Board revoked petitioner's parole based upon the state court conviction. His new full-term expiration date on his federal sentence is July 1, 1977. On June 3, 1975 petitioner was granted parole, and pursuant to an outstanding New York State detainer was delivered to the custody of the state authorities. He is currently serving his state sentence.

Petitioner seeks his release from federal custodial status upon the following grounds: (1) jurisdiction to execute a parole warrant did not exist after January 4, 1974, the original expiration date of his federal sentence; (2) even if jurisdiction did exist and a valid United States parole violation warrant had been issued, petitioner was entitled to, but did not receive, a speedy execution of the warrant and a prompt hearing; and (3) even if the United States Attorney General acted under color of law in not executing the parole warrant pending petitioner's trial on the state criminal charges, petitioner was entitled to an immediate discharge from the custodial restraints of parole as of January 4, 1974, the original expiration date of his federal sentence.

Petitioner's first contention is without merit. As long as the warrant was issued within the maximum term for which petitioner was sentenced,¹ which it was, it can be executed after the expiration of that term.²

As to petitioner's next contention, there can be no quarrel with his statement that due process required the Board to execute the parole warrant without unreasonable delay and to afford him a revocation hearing within a reasonable time after he was taken into custody.³ But stating that he is entitled to such due process begins rather than ends inquiry. What constitutes unreasonable delay may vary according to the facts and circumstances of each case.⁴

Our starting point is the fact that while on parole release petitioner was indicted for a state crime, which triggered the issuance of the parole warrant, the execution of which was stayed pending a trial in the state court. The stay of the warrant of which he now complains was for his benefit. The delay was pursuant to the Board's longstanding policy to protect the interests of the parolees. This policy is grounded on the following considerations:

(1) permitting a parolee to clear himself of the criminal charges, with the likelihood, if he succeeds, that the warrant will not be executed;

(2) avoiding the necessity of requiring the parolee to testify before the Board on the matters involved in the pending criminal case, which may confront him with a choice of pleading his right against self-incrimination, making admissions against his interest or testifying falsely in an effort to exonerate himself;⁵

(3) avoiding inconsistent findings of fact on the same charge wherever possible; and

(4) avoiding prejudice to the parolee's ability to defend himself by removing him from the district in which the criminal proceedings are pending.

These are weighty factors favorable to a parolee which justify withholding the execution of the warrant. A stay of execution of the warrant for these reasons has been recognized as reasonable in our circuit⁶ and in other circuits which have considered the matter.⁷ Entirely apart from the beneficial purpose of the delay, petitioner has not made the slightest showing of prejudice.

Petitioner's further claim that a final revocation hearing was unreasonably delayed following his conviction in the state court is without substance. The warrant was executed and petitioner taken into custody within four days of his conviction in the state court, and he was tendered an immediate preliminary hearing on the issue of probable cause. This hearing was twice delayed at his and his counsel's request. The final revocation hearing was held within three months after the preliminary hearing. In the circumstances, he was afforded a revocation hearing within a reasonable time.⁸ Even if the delay were unreasonable, this does not render custody unlawful absent a showing of prejudice and where a fair hearing is provided.⁹ Petitioner here fails to allege any prejudice, much less has he made a showing of prejudice. His state court conviction is not challenged. He appeared before the Board as a parole violator by reason thereof and expressly waived his right to produce witnesses. He was represented by counsel, who raised no issue of delay. Thus he was accorded both a fair hearing and a reasonably prompt one.

Finally, the claim is made that even if the Parole Board acted within its authority in staying the execution of the parole warrant during the two and a half year period that petitioner's state indictment was pending, and thus continuing him in parole status, nonetheless petitioner was entitled to be free of the custodial restraints¹⁰ of a parolee beyond the normal expiration date of his sentence. Thus, the contention is that during the four-month period from January 4, 1974, the original expiration date of his sentence, to May 14, 1974, when the parole warrant was executed and he was arrested, the Parole Board was without power to require the petitioner to report or to be subject to the direction of a parole officer.

This claim was originally advanced in petitioner's attorney's brief without any factual support by petitioner, which alone would have required dismissal of the claim since statements d'hors the record and contained in a lawyer's brief are insufficient to raise the issue.¹¹ However, to avoid delay and to eliminate a further application on the issue, the court invited petitioner and the parole officer to submit affidavits. Petitioner states that he was advised by his parole officer on or about February 18, 1972 of the issuance of the parole violator's warrant by reason of his arrest and indictment in the state court and that it would not be executed as long as petitioner reported as required and complied with all conditions imposed by the Parole Board. Thereafter and until May 14, 1974, when the warrant was executed and he was taken into federal custody, petitioner swears he continued to report to his parole officer and fill out the monthly parole report forms. He further avers that in January 1974, when the original five-year maximum term expired, he informed the parole officer that he "was no longer required under law to continue on parole," and that thereafter the parole officer advised him that unless he continued to report, action would be taken to imprison him. Thus petitioner denies that he continued to report up to May 14, 1974 on a voluntary basis; he alleges it was only because of fear that he would have to fight the federal parole violation charge and at the same time resist the state...