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LAWRENCE v. SMITH

May 3, 1978

DAVID LAWRENCE, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility; EDWARD R. HAMMOCK, Chairman, New York State Board of Parole, Respondents



Petitioner David Lawrence has applied to this court for a writ of habeas corpus, claiming that he is entitled to be released from the custody of the New York State Board of Parole because he was not accorded the due process protections of Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972) at his final parole revocation hearing that was held on November 6, 1974.

Petitioner was originally sentenced on March 25, 1963, in the Franklin County Court to a term of five to fifteen years based on his conviction for sodomy in the second degree. He was paroled on October 19, 1971, and he remained free on parole until his arrest for parole violations on August 27, 1974. The charges against petitioner were for violations of then-applicable 7 NYCRR § 1.15. *fn1" A preliminary parole revocation hearing was held on September 12, 1974, at the Monroe County Jail. The evidence against petitioner consisted of the testimony of his parole officer and the transcribed statements of a seven and a ten-year old boy. At the hearing, petitioner was represented by counsel and he presented a number of witnesses in his own behalf. The hearing officer found probable cause to believe that petitioner had violated the conditions of his release. Following the final parole revocation hearing held on November 6, 1974, at the Attica Correctional Facility, petitioner's parole was revoked and he was returned to prison.

 Petitioner then filed a petition for writ of habeas corpus in the Wyoming County Court seeking to overturn the parole revocation. This petition was denied by the Honorable Julian A. Hanley in a memorandum and order filed on January 24, 1975. The Appellate Division, Fourth Department, then affirmed this decision. 50 A.D.2d 1073, 376 N.Y.S.2d 61 (4th Dep't 1975). Leave to appeal to the New York State Court of Appeals was denied on February 24, 1976. 38 N.Y.2d 710, 382 N.Y.S.2d 1030. While the Assistant Attorney General argues to the contrary in his brief filed with this court, my review of the record of the state court proceedings indicates that the questions of law which petitioner presented to the New York State courts were sufficiently similar to the claims presented to this court to satisfy the exhaustion requirements of 28 U.S.C. § 2254(b).

 On July 16, 1976, petitioner filed a pro se application for writ of habeas corpus with this court. *fn2" Daniel J. Weinstein, Esq., was assigned to represent petitioner in this proceeding on January 20, 1977. However, Mr. Weinstein was then relieved as counsel of record after Mr. Weinstein advised the court that he intended to take a position with the New York State Board of Parole whose Chairman is one of the respondents in this matter.

 In the meantime, petitioner was conditionally released from the Attica Correctional Facility to the custody of the Board of Parole on February 15, 1977. However, as a result of the 1974 decision to revoke petitioner's parole, the maximum expiration date of his sentence was extended from April 10, 1978, to May 10, 1978, thus requiring that he spend an additional 30 days in the custody of the Board of Parole. This additional time in custody represents the difference between the date when petitioner was determined to be delinquent, July 26, 1974, and the date that he was taken into custody as a parole violator, which was August 27, 1974. *fn3"

 Philip Halpern, Esq., was appointed to represent petitioner on September 28, 1977, and an amended petition was filed on December 16, 1977. Briefs were subsequently filed by both parties, and oral argument was heard on March 17, 1978.

 The primary claim before me is that the Board of Parole failed to accord petitioner certain of the due process protections mandated by Morrissey v. Brewer at his final parole revocation hearing. In addition, petitioner claims that New York State Parole Rule "7e", which requires a parolee to advise his parole officer whenever he is questioned or arrested by members of any law enforcement agency, is unconstitutionally vague as written and applied.

 As first recognized in Morrissey, the minimum requirements of due process which are applicable to a final parole revocation hearing include: (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey v. Brewer, supra, at 489. There are no allegations that the Board of Parole (hereafter referred to as the "Board") failed to abide by requirements (a), (b), and (e).

 Before addressing those requirements of Morrissey which petitioner claims the Board of Parole failed to honor, it is appropriate to compare the preliminary revocation hearing with the final revocation hearing that was accorded petitioner. In addition, it is necessary that I resolve the ambiguity, at least for the purposes of this decision, as to the contents of the record before the Board when it revoked petitioner's parole.

 At the preliminary hearing petitioner appeared with counsel and presented six witnesses--his employer, a police officer, his wife, and three of his children--to refute the charges which had been brought against him. In addition, petitioner offered extensive testimony in his own behalf. At the final revocation hearing, petitioner appeared alone. Only petitioner and Parole Officer Bruce Babcock testified at the final hearing.

 Even a cursory review of the transcripts of the two proceedings reveals which was the more summary of the two. The transcript of the final hearing is only about one-third of the length of the transcript of the preliminary hearing. While the preliminary hearing was devoted to receipt of the witnesses' testimony, the final hearing was dominated by the questions, comments, and explanations of the presiding member of the Board. In this instance, it is clear that the Supreme Court's recognition, that "the final hearing is a less summary one [than the preliminary hearing] because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause" (Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973)), was not heeded by the Board.

 Petitioner was entitled to be represented by legal counsel at the final revocation hearing (pursuant to then-applicable 7 NYCRR § 1.19(f) which is now contained in 9 NYCRR § 8025.40), and it is clear that an attorney was present at that hearing to act in petitioner's behalf. However, for some inexplicable reason, petitioner chose to send his attorney home and to represent himself pro se at the hearing. A voluntary and informed waiver appears on the face of the record of the final hearing. This decision to proceed without representation of legal counsel was a most serious error on petitioner's part. A comparison of the preliminary hearing, where petitioner was represented by counsel, and the final hearing clearly demonstrates that "the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess." Gagnon v. Scarpelli, supra, at 786. A lawyer's assistance is vital to one facing parole revocation. See United States ex rel. Bey v. Connecticut State Board of Parole, 443 F.2d 1079, 1087 (2d Cir.), vacated as moot, 404 U.S. 879, 92 S. Ct. 196, 30 L. Ed. 2d 159 (1971).

 There remains some dispute as to whether or not all or part of the transcript of the preliminary hearing was before the Board when it rendered its decision after the final hearing. The preliminary hearing transcript which is before me consists of two parts. The first part contains the testimony of Parole Officer Babcock and the prior examinations by Babcock of the seven and ten-year old boys which were read into the record. This testimony is almost all inculpatory. There is no reporter's certification following this portion of the transcript. Petitioner urges that the Board had before it and relied upon this portion of the preliminary hearing transcript.

 The second portion of the preliminary hearing transcript which is before me consists of the testimony of the witnesses which petitioner presented in his own behalf. The reporter's certification following the transcript is dated January 15, 1975, more than two months after the final revocation hearing was held and at least one month after the Board's decision. No one has urged, either here or in the state courts, that this portion of the preliminary hearing transcript was ever considered by the Board. The officer who presided at the preliminary parole violation hearing was not among the officers who participated in the final revocation decision.

 I am unable to reach the conclusion urged by petitioner that the Board had before it the inculpatory evidence offered at the preliminary hearing. There is no overt reference to any portion of the preliminary hearing transcript in the final revocation hearing minutes nor is there any indication that the minutes were relied on as evidence when parole was finally revoked. Therefore, I must conclude that the record before the Board consisted only of the Report of Violation of Parole, prepared by Parole Officer Babcock and his supervisors, and the transcribed minutes of the final revocation hearing.

 Petitioner first urges that he was deprived of his due process rights under Morrissey when the Board failed to allow him the "opportunity to be heard in person and to present witnesses and documentary evidence" in his own behalf. As the Supreme Court elaborated:

 
"The parolee must have an opportunity to be heard and to show, if he can, that he did not violate the conditions, or, if he did, that circumstances in mitigation suggest that the violation does not warrant revocation."

 Morrissey v. Brewer, supra, at 488. Under the New York regulations that governed final revocation hearings in November, 1974, the member of the board reading the summary of the charges was required to apprise the parolee that "he may produce witnesses on his behalf." 7 NYCRR § 1.19(f), superceded by 9 NYCRR § 8025.50. No such advice was given to the petitioner during the course of the final revocation hearing. It has been recognized in this Circuit that "it would be a fatal violation of due process that the hearing officers departed in material respects from the agency's own regulations." United States ex rel. Carson v. Taylor, 403 F. Supp. 747, 754 (S.D.N.Y. 1975), aff'd, 540 F.2d 1156 (2d Cir. 1976); United States ex rel. Donham v. Resor, 436 F.2d 751, 754 (2d Cir. 1971). The appearance of arbitrariness is enhanced by the fact that the Board did not follow its own administrative regulations in this case. See Cox v. Benson, 548 F.2d 186, 189 (7th Cir. 1977).

 Even before specific due process guidelines were established in Morrissey, the Second Circuit Court of Appeals recognized that a parolee must be permitted to bring to the Parole Board's attention "evidence which would excuse or disprove the charge of parole violation." United States ex rel. Frederick v. Kenton, 308 F.2d 258, 259 (2d Cir. 1962). More recently, it has been recognized that in certain circumstances, a Parole Board may have an affirmative obligation to assist a parolee in obtaining and presenting testimony in his own behalf. See Rhodes v. Wainwright, 378 F. Supp. 329, 331-32 (M.D. Fla. 1974).

 It does appear in the record before me that the presiding hearing officer did state to petitioner at the outset:

 
"I will proceed by reading each charge and I will give you an opportunity to respond. You may admit, deny, stand mute, or explain any mitigating circumstances regarding the charges or all of the charges. You understand that?"
 
Lawrence: "Yes sir, I do."

 Transcript of final revocation hearing at p. 1. After reading charges 1 and 2 together, the hearing officer then received brief testimony from Parole Officer Babcock and entered into the record the statement of the ten-year old boy as it appeared in the Parole Violation Report. *fn4" The following exchange then took place:

 
Hearing Officer: Do you wish to respond to that [referring to statement of ...

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