US ex rel. Fitzpatrick v. US PAROLE COM'N

• Decision Date: 09 February 1978
• Docket Number: Civ. No. 77-325.
• Citation: 444 F. Supp. 1302
• Parties: UNITED STATES of America ex rel. Frank FITZPATRICK, Plaintiff, v. UNITED STATES PAROLE COMMISSION et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

444 F. Supp. 1302

UNITED STATES of America ex rel. Frank FITZPATRICK, Plaintiff, v. UNITED STATES PAROLE COMMISSION et al., Defendants.

Civ. No. 77-325.

United States District Court, M. D. Pennsylvania.

February 9, 1978.

Frank Fitzpatrick, pro se.

John M. Humphrey, Williamsport, Pa., for plaintiff.

Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., for defendant.

OPINION

MUIR, District Judge.

Fitzpatrick has filed this action pursuant to 28 U.S.C. § 2241 alleging that Respondents' failure to afford him a hearing within a reasonable time after his arrest pursuant to a parole violator's warrant violated his constitutional rights. On January 11, 1978, following a hearing held before United States Magistrate Havas and his submission of recommended findings of fact and conclusions of law, this Court held that Fitzpatrick was arrested on June 11, 1974 pursuant to a parole violator's warrant and that the parole commission's failure to hold a revocation hearing until December 15, 1976 violated the requirement of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) that such a hearing be held within a reasonable time after an individual is taken into custody pursuant to a violator's warrant. The Court directed Fitzpatrick and Respondents to submit briefs directed to the question of the proper remedy, if any, for the violation which occurred in this case. Both Fitzpatrick and Respondents filed a brief on January 26, 1978.

The operative facts of this case are as follows: In 1964, Fitzpatrick was sentenced by the United States District Court for the Southern District of Ohio to a 10-year sentence for interstate transportation of forged securities. He was paroled in March, 1968 and, after violating his parole, was reincarcerated in 1970. He was reparoled on January 20, 1972 and on October 18, 1973, a warrant application was issued by the United States Board of Parole (now the United States Parole Commission) which listed five charges forming the basis for an alleged violation of parole: failure to submit supervision reports, indictment on state charges of grand larceny and receiving stolen goods, failure to appear in state court and answer those charges, arrest for possession of marihuana, and failure to inform his parole officer of a change in residence. On June 11, 1974, Fitzpatrick was apprehended by federal agents and taken into custody under the parole violator's warrant. After Fitzpatrick was taken to the federal building in Cincinnati, Ohio, a teletype inquiry revealed that warrants for his arrest were outstanding in the Eastern District of Virginia and the Western District of New York. Fitzpatrick was subsequently transferred to the Eastern District of Virginia and was convicted of interstate transportation of forged securities on August 27, 1974. He received a four-year sentence. In 1976, Fitzpatrick was paroled from that sentence to the custody of the United States Parole Commission which had placed a detainer against him based upon the parole violator's warrant and on December 15, 1976, a revocation hearing was held at which time the Commission decided to revoke Fitzpatrick's parole.

At the parole revocation hearing, evidence was heard concerning six alleged violations of Fitzpatrick's parole. In addition to the five charges listed in the warrant application of October 18, 1973, the hearing examiners considered a charge relating to Fitzpatrick's conviction in the Eastern District of Virginia in 1974. The examiners found that Fitzpatrick committed the acts charged as numbers 1, 3, 5 and 6 and made no finding relative to charges Nos. 2 and 4. At the hearing, Fitzpatrick admitted that he did not submit supervision reports from June to September of 1973, that he failed to appear in state court to answer to charges of grand larceny and possession of hallucinogenic drugs and that he did not report to his parole officer that he changed his residence from Cincinnati, Ohio to Detroit, Michigan. Fitzpatrick contended that he was not guilty of the charges of which he was convicted in the Eastern District of Virginia but the hearing examiners found that he committed the offenses based upon his conviction by a jury. Fitzpatrick filed this action on April 19, 1977.

It is clear that Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) requires that a parole revocation hearing be held within a reasonable time of the date when the parole violator is taken into custody under the violator's warrant. This Court has held that the 2½ year delay between Fitzpatrick's arrest pursuant to the warrant and the holding of a revocation hearing violated Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The issue now before the Court is to what relief, if any, Fitzpatrick is entitled as a result of this violation.

In Bryant v. Grinner, 563 F.2d 871 (7th Cir. 1977), a situation similar to the one presented by this case was considered by the United States Court of Appeals for the Seventh Circuit. Bryant, the petitioner, was arrested pursuant to a parole revocation warrant on July 18, 1975. He was promptly afforded a preliminary hearing at which he admitted he violated the conditions of his release. A final revocation hearing was held on November 20, 1975, 125 days after the date of execution of the warrant. The Court of Appeals ruled that although the delay exceeded three months, which, prior to the Supreme Court's decision in Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) would have created an irrebuttable presumption of prejudice to the petitioner so that he would be entitled to release, following that Supreme Court decision whether a person in Bryant's situation was entitled to release was to be determined by the standards prescribed in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) which relates to violations of the Sixth Amendment guarantee to a speedy trial. The Court of Appeals for the Seventh Circuit cited its earlier decision in United States ex rel. Sims v. Sielaff, 563 F.2d 821 (7th Cir. 1977) in support of its holding. In Sims, the Petitioner's parole had been revoked pursuant to a revocation hearing that was not in compliance 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). A second hearing was held nine months later. The district court had ordered Sims' release because it concluded that the delay was unreasonable and in violation of Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). The Court of Appeals reversed, stating that the implication of Moody v. Daggett, 429 U.S. 78, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976) was that prejudice should not be presumed from a pre-hearing delay in excess of three months. Moody held that the issuance of a parole violator's warrant does not implicate any liberty interest of the parolee so that he is not entitled to a revocation hearing until he is taken into custody pursuant to the warrant. The Court of Appeals noted that Moody contemplates a situation where a violator's warrant is issued alleging certain acts which contravene the conditions of the parolee's release followed by a hearing only after the warrant...