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UNITED STATES EX REL. CARSON v. TAYLOR

November 14, 1975;

UNITED STATES of America ex rel. Birchel Leonard CARSON, Petitioner,
v.
Larry TAYLOR, Warden, Metropolitan Correctional Center and John T. Connally, Chief Probation Officer, Southern District of New York, Respondents



The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 The institution of parole has been a lively subject of debate and litigation in the last few years. Responding to the mounting criticisms, the United States Board of Parole, under an energetic and creative Chairman, has lately fashioned a number of substantial improvements in its standards and procedures. But the progress is not a straight line. The case now before this court reveals a regrettable course of careless, sometimes callous disregard by subordinate parole officials of basic procedural rights. The petitioner, compulsorily released on parole earlier this year, has spent over four months in renewed confinement, having been subjected throughout to a series of grave procedural denials. He seeks, and is entitled to, release on the writ of habeas corpus.

 I.

 The petitioner was sentenced on June 16, 1972, to a term of five years in prison for violation of 18 U.S.C. §§ 371, 2314 (conspiracy and interstate transportation of forged securities). He was not released on parole under the discretionary authority given to the Board of Parole to order such release after service of one-third of the sentence. See 18 U.S.C. §§ 4202 and 4203. Instead, having earned the requisite amount of good time, during a prison career that included substantial amounts of college course work both inside and outside prison walls, he was mandatorily released on January 30, 1975, "at the expiration of his term of sentence less the time deducted for good conduct." 18 U.S.C. § 4163. From the date of his release, he was under the law "deemed as if released on parole until the expiration of the maximum term * * * for which he was sentenced less one hundred and eighty days." 18 U.S.C. § 4164.

 It appears to be undisputed that petitioner has some experience in the entertainment industry, specifically in booking and managing popular music groups. In addition, his college work during confinement included training in computer programming. Having been released in this District, where he had been convicted, and subjected to parole supervision here, he was failing in his efforts to obtain and keep gainful employment. On the other hand, according to his own and other uncontradicted evidence, he had friends who would help him and employment opportunities in Biloxi, Mississippi. Specifically, there appeared to be available there a site, licensing, supportive collaborators, and financing for a discotheque that would serve a tourist trade.

 According to petitioner, being unable to reach his parole officer by telephone and not having received his official monthly report form, he sent the required information in a letter to his parole officer. In the same letter, he reported that he was traveling to Mississippi to pursue employment possibilities there. He stated that he would be residing with a friend, Mr. Pat Gill, at 903 Caillavet Street, Biloxi, Mississippi, and gave a telephone number where he could be reached. The parole officer denies receiving this communication. There was some discussion and speculation at the revocation hearing, not critical now, of the fact that when a violator warrant was later issued against petitioner, F.B.I. agents came straight to Mr. Gill's home where petitioner was found and taken into custody.

 Another disquieting circumstance, minor in the array of such things that come ultimately to characterize this case, arises from the parole officer's testimony purporting to discredit petitioner's assertion that he had not received the prescribed form for his supervision report. It had been duly sent, said the parole officer, and returned, as undeliverable. When it was shown, however, that it had been addressed under a former alias no longer used by petitioner, either for parole supervision or for the records of the hotel at which he was living, the parole officer merely observed: "Well, I guess you've got a point there."

 On July 2, 1975, a warrant was issued for the arrest of petitioner as an alleged parole violator. The application for the warrant alleged two grounds:

 
"1. FAILURE TO SUBMIT SUPERVISION REPORT
 
As of 6/25/75 Mr. Carson has failed to submit his supervision reports for the month of May 1975, according to USPO Berger's report of 6/25/75.
 
"2. FAILURE TO REPORT CHANGE IN RESIDENCE
 
On or about 6/1/75 Mr. Carson left his approved residence at the Hotel Empire, 44 West 63rd Street, New York City, N. Y. has failed to report his change in residence to his USPO, according to USPO Berger's report of 6/25/75. Mr. Carson's current whereabouts is unknown."

 Petitioner was apprehended on July 3, 1975, and lodged at the Harrison County Jail in Gulfport, Mississippi. On July 15, 1975, he was given a "Preliminary Parole Revocation Hearing" in Gulfport before a probation official there. According to petitioner, he asked the official to request petitioner's New York parole officer, who had applied for the violator warrant, to appear at the hearing so that the petitioner might question him. The charging officer did not appear, nor is there any indication whether he was ever asked to or of any reason for his non-appearance. Following this preliminary "hearing," petitioner requested that his formal revocation hearing be held in Mississippi, where the people he had come to live and work with could testify in his behalf. The request was neither granted nor favored with a response.

 On August 14, 1975, petitioner was brought to this District and confined in the Metropolitan Correctional Center adjoining this Courthouse. He was to remain there for over a month before a Board of Parole hearing came to be held on whether his parole should be revoked. In September he succeeded in retaining counsel, who initiated the instant proceeding. As begun by a proposed order to show cause presented on September 8, 1975, the petition sought release on the ground that the hearing had been delayed for an impermissibly long time, during all of which petitioner had remained in jail. When the order came to be presented, however, the court was informed that the hearing was now scheduled and set to begin within a few days, on September 24, 1975. In the circumstances the court concluded that there was no immediate occasion to consider habeas relief, see Davis v. United States, 288 F. Supp. 180 (W.D.Mo.1968), and declined to sign the order. As will appear below, the delay of the hearing has never been acceptably explained.

 The revocation hearing that ensued has been preserved on cassette tapes and a reasonable approximation in typewritten form of what appears on those tapes. The court has read and listened. It may be said that these are not among the records that display us at our best in the administration of justice. The hearing officer in charge repeatedly, and understandably, makes the point that parole revocation hearings are not subject to the procedural formalities of the courtroom. Driving the point home, the hearing record is a vivid display of how casual, unstructured, disorganized, and unfair a proceeding may be thought by some to constitute all the process that is due in a hearing to revoke parole.

 In the questioning of petitioner and presumptively, as is now conceded, in ruling against him at the end, the hearing officer relied upon documents that were withheld from the petitioner. The Government has handed these papers to the court in a sealed envelope, still proclaiming its right to keep them concealed from the petitioner. Responding to the question whether it comports with fundamental fairness to rely upon such secret evidence in reaching a decision to re-imprison a man, government counsel assures us this is all right. The explanation given is that parole revocation, as revokees must be comforted to hear, is "not an adversarial process." The foundation for that proposition, and for its specific consequences in this case, is said to be Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). For reasons elaborated later, the court rejects this argument. As will also appear, the unfairness of the hearing in this respect is by no means all that vitiates the decision to revoke petitioner's status as a mandatory releasee.

 At the conclusion of the hearing, the hearing officers retired for a period, then returned and announced that petitioner had been found a parole violator and that the sanction was to be his reconfinement. These determinations were stated briefly on the record and then, two weeks later, repeated in substantially the same laconic terms in a written "Notice of Action." As recorded in the latter document, the decision was that petitioner had committed both of the violations charged in the warrant application plus another violation not so charged but now described as "admitted." *fn1" As to the "REASONS" for the dread sanction, the written decision said:

 
"Your release at this time would depreciate the seriousness of your mandatory release process. It does not appear to be a reasonable probability at this time that you would conform to the conditions of mandatory release in that you failed to submit your supervision report for the month of May, 1975, failed to report change in residence to your parole officer and admitted to the panel that you left the district without permission."

 Having had his long-delayed hearing, being informed of the adverse decision, but having evidently exhausted the wherewithal to continue employing counsel, petitioner filed a supplemental petition pro se, seeking to preserve his earlier grievances about the delays but concentrating now upon asserted flaws in the hearing and the decision to reincarcerate him. Certain delays caused by the court and government counsel have prolonged an extended period of confinement that is now found to be fundamentally unsupportable. Having received finally all the necessary materials for decision, and after hearing petitioner and government counsel on November 11, 1975, the court records the reasons why the writ should and will be granted.

 II.

 Had there been a fair hearing, the court would probably conclude that there is sufficient evidence in the record to support the Board's finding that petitioner violated certain conditions of his mandatory release. But the hearing was grossly unfair in vital respects. Moreover, the finding of violations (relatively minor ones in this case) is only a first step. The second, and more crucial, determination is whether the violations warrant returning the parolee to prison. Due process must attend both stages of the inquiry. See, e.g., Morrissey v. Brewer, supra; Sutherland v. District of Columbia Board of Parole, 366 F. Supp. 270 (D.D.C.1973). As will become apparent in the discussion below, the Board's procedures fell woefully shy of due process requirements at nearly every juncture.

 On grounds already adumbrated in part, there is in this record a cumulation of actions by parole officials made up in excess measure of indifference, unfairness, arbitrariness, and unexplained punitiveness. At least one or two of the departures from decent procedure (perhaps most notably, the insistent reliance upon secret evidence for both the findings of violation and the designation of the harshest possible penalty) would probably be sufficient in themselves to vitiate the decree of imprisonment against which the writ is sought. But whether that is so or not, the long course of official conduct, with its repeated instances of impropriety, compels this result. The simplest ...


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