Young v. Parker

• Decision Date: 12 August 1966
• Docket Number: No. 728.,728.
• Citation: 256 F. Supp. 1002
• Parties: William H. YOUNG, Petitioner, v. J. J. PARKER, Warden, United States Penitentiary, Lewisburg, Penna., and Richard A. Chappell, Chairman, Homer L. Benson, Charlotte Paul Groshell, Lewis J. Grout, William F. Howland, Jr., Gerald E. Murch, Zeibel W. Neff, Joseph N. Shore, Parole Executive Members of the U. S. Board of Parole, Washington, D. C., and Hubert L. Robinson, U. S. Probation Officer, Southern District of New York, Respondents.
• Court: U.S. District Court — Middle District of Pennsylvania

256 F. Supp. 1002

William H. YOUNG, Petitioner, v. J. J. PARKER, Warden, United States Penitentiary, Lewisburg, Penna., and Richard A. Chappell, Chairman, Homer L. Benson, Charlotte Paul Groshell, Lewis J. Grout, William F. Howland, Jr., Gerald E. Murch, Zeibel W. Neff, Joseph N. Shore, Parole Executive Members of the U. S. Board of Parole, Washington, D. C., and Hubert L. Robinson, U. S. Probation Officer, Southern District of New York, Respondents.

No. 728.

United States District Court M. D. Pennsylvania.

August 12, 1966.

William H. Young, pro se.

Bernard J. Brown, U. S. Atty., Scranton, Pa., Harry A. Nagle, Asst. U. S. Atty., Lewisburg, Pa., for respondents.

MEMORANDUM

FOLLMER, District Judge.

William H. Young, a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, has submitted a document which is titled, "Motion to Vacate Sentence (Violation of Parole)", but which by Order of January 21, 1966 this Court indicated would be considered as a Petition for Writ of Habeas Corpus.

A Rule was granted, a Response and Traverse have been filed. There was also filed an affidavit of Joseph N. Shore, a Parole Executive of the United States Board of Parole, Washington, D. C., after which a second Traverse was filed. A hearing on the petition was held on May 20, 1966.

Petitioner was sentenced July 30, 1952 by a United States Military Court to serve fifty years imprisonment on his conviction of murder. The sentence was progressively reduced by clemency to twenty years. He was released on parole January 25, 1962.

On June 2, 1965 petitioner was arrested under a parole violator's warrant. The application for the warrant gave, inter alia, as reasons for its issuance, petitioner had been reported by his wife as having threatened to kill her, as beating her and causing her to flee their home with her nine month and sixteen year old children for safety sake; she had been to the police for protection and had provided the United States Probation Office with a signed sworn statement; petitioner had admitted to the Probation Officer beating his wife, threatening her and drinking to excess, and petitioner had been referred for assistance to local agencies but he had failed to follow through.

Petitioner set forth nine allegations in support of his petition. All of these, with the exception of paragraphs 2, 5 and 7, are mere complaints that he was not afforded rights of formal legal proceedings, including bail, trial, etc.

Petitioner is currently serving the original sentence imposed upon him by the Military Court on July 30, 1952. When released on parole on January 25, 1962 he remained under the custody and supervision of the Attorney General. Doherty v. United States, 280 F.2d 35 (9th Cir., 1960).

Whether a parole should be revoked for a violation of the conditions under which it was granted rests in the sound discretion of the United States Board of Parole. Brown v. Taylor, 287 F.2d 334 (10 Cir., 1961); 18 U.S.C. § 4207.

Furthermore, where there is evidence before the Board showing a violation of the conditions of the parole, the courts should not interfere with the exercise of administrative discretion by the Board unless there is a clear showing that the Board acted capriciously or abused its discretion. Clark v. Stevens, 291 F.2d 388 (6 Cir., 1961).

If any reasonable basis existed upon which the Board could conclude that a violation of the conditions of the parole had occurred, the court should not attempt to substitute its judgment for that of the Board. Wright v. Settle, 293 F.2d 317 (8th Cir., 1961).

In Martin v. United States Board of Parole, 199 F.Supp. 542, 543 (D.D.C. 1961), Judge Holtzoff said:

"It must be borne in mind in this connection that there is no constitutional right to a hearing before the Parole Board on the question of revocation of parole. The only reason such a right exists is because it is prescribed by statute. * * *"

In paragraph 2 of the petition, it is stated:

"* * * Petitioner, while in custody at the Federal Detention Headquarters, New York City, requested counsel, but was not advised of his rights to have counsel appointed by the Court, only he could retain one if desired. Petitioner was and is indigent." (Emphasis supplied.)

In Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 238 (1963) in an exhaustive opinion, the Court held, inter alia:

"We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings."

In paragraph 5 of the petition, petitioner complains he was not given a hearing in New York. In his Traverse, petitioner does not deny that a preliminary interview was held in New York on June 25, 1965, on the contrary, he contends he was without counsel and that his wife was present on his instruction at the hearing in the United States Courthouse, New York, New York, and she was not allowed to testify.

In paragraph 7 of the petition, petitioner complains of the use of information against him which was obtained by perjury.

Respondent furnished a copy of a signed statement of the petitioner dated June 4, 1965, in which he requested postponement of the preliminary hearing. This was made on a Parole Board Form. Petitioner did not request a local revocation hearing on the form provided. There was also furnished the report of the United States Probation Officer stationed at New York, to the Board of Parole. This report showed that petitioner had been drinking excessively; had assaulted his wife and threatened to kill her, and had failed to follow instructions of the Probation Officer; that petitioner had requested postponement of hearing; that he appeared at a postponed hearing without counsel or witnesses; that while petitioner denied assaulting his wife, he did admit slapping her.

The affidavit of the Parole Executive of the Board of Parole reviews in detail the record of the Board in the instant case, including the report of the Probation Officer with relation to the preliminary hearing, the complaints against petitioner and the conclusions of the Probation Officer, his recommendation for a warrant and the action of the Board. It also sets forth petitioner's request for postponement of the hearing, of the subsequent interview of June 25, 1965 at which petitioner did not have counsel or witnesses; that the charges were discussed with petitioner; that the Bureau of Prisons was authorized to designate an institution to which petitioner should be returned at which time he would be given a revocation hearing before a Board member; that the United States Penitentiary, Lewisburg, Pennsylvania, was so designated; that on August 4, 1965 petitioner was again advised as to his right to have counsel and/or witnesses present; that petitioner waived this by signing a waiver form, and on August 14, 1965 he received a hearing before a Board member; that subsequently, the Members of the Board made a finding as to violation and ordered petitioner's parole revoked by Order dated September 8, 1965.

At the hearing before this Court, petitioner's wife was made available to petitioner. He did call her to the stand. She testified that sometime in March, 1965, she wrote a letter to the Probation Officer Robinson asking him to visit her in her home. On June 2, 1965 she wrote a second letter to the Probation Officer, in which she stated as follows: (Transcript of Habeas Corpus Hearing, pp. 54, 55)

"`* * * My husband, William H. Young, has within the past two days tried to kill me first with an ice pick, secondly, and thirdly with a paring knife causing me to flee with my nine month old son as well as my sixteen year old daughter. These threats have always occurred when my husband is under the influence of alcohol, primarily wine. His last drunken rage occurred on 6/1/65 at about 10:00 P.M. This was the third time he threatened me yesterday. Since my marriage to him on March 21, 1964, there has been numerous times when he has physically assaulted me on week-ends when under the influence of these alcoholic beverages. These attacks and threats occurred both during my pregnancy and since I gave birth to my son on September 10, 1964.

"Since May 30 1965, when I was physically assaulted by my husband, I have not lived at home and it has been necessary to go temporarily in the home of several of my friends with my children for my own safety. While voluntarily making this statement, I further would give this testimony in a Parole Violation Hearing if necessary. I am deathly afraid of my husband, and at this time I feel is dangerous for my own safety to go on living with him.'"

On cross-examination she testified that while the Probation Officer suggested a word or two in her said letter of complaint, it was her "free and voluntary statement." Mrs. Young testified that she did write the complaint letter in which she stated she feared for her life. She now testifies that she had lied in the accusatory letter and that what she said concerning petitioner therein was not true. She admitted petitioner drank to excess, that they had many arguments concerning his drinking and that they had family and money problems.

Probation Officer Robinson testified that he had indicated to Mrs. Young that an effort should be made to solve their problems without filing the complaint; that she insisted on filing the complaint; that Mrs. Young had said to him that on occasions when her husband was drinking and when going to bed he would drive an ice pick into the floor and say to her, "I am going to kill you before morning." He further testified that he called petitioner to his office and said to him that...