United States v. Kenton

• Decision Date: 09 March 1961
• Docket Number: Docket 26604.,No. 255,255
• Citation: 287 F.2d 534
• Parties: UNITED STATES ex rel. John BUONO, Appellee, v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

287 F.2d 534 (1961)

UNITED STATES ex rel. John BUONO, Appellee, v. Frank F. KENTON, Warden, Federal Correctional Institution, Danbury, Connecticut, Appellant.

No. 255, Docket 26604.

United States Court of Appeals Second Circuit.

Argued January 10, 1961.

Decided March 9, 1961.

Harold H. Greene, Atty., Dept. of Justice, Washington, D. C. (Harold R. Tyler, Jr., Asst. Atty. Gen., and Eugene N. Barkin, Atty., Dept. of Justice, Washington, D. C., and Harry W. Hultgren, Jr., U. S. Atty., D. Conn., Hartford, Conn., on the brief), for appellant.

Stanley D. Josephson, Branford, Conn., for appellee.

Before CLARK, WATERMAN, and MOORE, Circuit Judges.

CLARK, Circuit Judge.

Respondent, the warden of the Federal Correctional Institution at Danbury, Connecticut, appeals from an order granting relator's petition for a writ of habeas corpus. The question on appeal is whether or not a parolee who has been recommitted for violation of the conditions of his release must be discharged from custody where the statutory hearing on the issue of violation was not held within a reasonable time.

On October 21, 1959, upon a warrant issued by the Board of Parole, relator was arrested for violation of the conditions of his mandatory release on parole; and he was committed temporarily to the Federal Detention Headquarters in New York City. Seven days later the Director of the Bureau of Prisons designated the United States Penitentiary, Atlanta, Georgia, as the institution where the remainder of relator's original sentence was to be served. Relator arrived at the Atlanta Penitentiary on November 20, 1959, by means of a bus operated by the Bureau between Connecticut and Atlanta, stopping at New York City, Lewisburg, Pa., Washington, D. C., and Petersburg, Va. The government states in its brief that this was the normal method for such transfers, but gives no reason why relator did not arrive in Atlanta until 23 days after that place was designated as his permanent place of incarceration.

Relator did not receive a hearing on the issue of parole violation until February 11, 1960, 3 months and 3 weeks from the date of his arrest; and the formal order revoking his parole was not entered until April 14, 5 months and 3 weeks from the date of arrest.¹ The district court held that 113 days constituted an unreasonable delay in granting the hearing required by 18 U.S.C. § 4207, which provides:

"A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.

"The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof. * * *"

In an attempt to justify the delay, the government asserts that it is impossible for the Board to hold hearings immediately whenever and wherever a violator is arrested. The eight-member Board of Parole conducts almost 12,000 hearings a year and issues about 1,000 violator warrants. Its jurisdiction extends to every state and possession in the union, and it visits 12 to 14 federal institutions regularly. Under the present system the Board schedules periodic visits by a member to the various federal institutions and holds violator hearings on its first visit after an alleged violator has been returned to his designated institution. No hearings are held at institutions which are used for temporary custody only. The Atlanta Penitentiary was designated for relator at a time when a Board member was conducting hearings in Atlanta. These hearings were terminated during the first week of November 1959, and relator, arriving on November 20, 1959, was compelled to wait for his hearing until February 1960, the next scheduled time that a Board member would be in Atlanta.

Section 4207, in granting a hearing to alleged parole violators, contemplates, without explicitly so providing, that the hearing shall be held within a reasonable time after the prisoner is "retaken upon a warrant issued by the Board of Parole." Adams v. Hudspeth, 10 Cir., 121 F.2d 270, 272; United States ex rel. Rowe v. Nicholson, 4 Cir., 78 F.2d 468, 471, certiorari denied Rowe v. Nicholson, 296 U.S. 573, 56 S.Ct. 118, 80 L.Ed. 405; Application of Gillette, D.C.E.D.N.Y., 175 F.Supp. 255, 256; MacAboy v. Klecka, D.C.Md., 22 F.Supp. 960, 961.² Here the district court found that 113 days was an unreasonable delay, and we concur in that conclusion. No argument of administrative convenience can justify holding a parolee in custody for almost 4 months before granting him a statutory hearing on the issue of violation. The procedure prescribed in 28 CFR § 2.39, to the extent that it may result in such an unreasonable delay, fails to comply with the requirements of 18 U.S.C. § 4207.

The district court held that the relator was entitled to release from custody because of the unreasonable delay in granting him a hearing. But the mere fact that the hearing was unreasonably delayed does not of itself render the hearing a nullity. If, after an...