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AUGELLO v. WARDEN

May 24, 1979

Anthony AUGELLO, Petitioner,
v.
WARDEN, METROPOLITAN CORRECTIONAL CENTER, UNITED STATES BUREAU OF PRISONS, and United States Parole Commission, George Doerbecker and James Stein, Respondents



The opinion of the court was delivered by: NEAHER

MEMORANDUM AND ORDER

Petitioner, a federal parolee, seeks a writ of habeas corpus, presumably pursuant to 28 U.S.C. § 2241, complaining that he has been denied due process in a parole revocation proceeding. He is currently in custody, having surrendered to the United States Parole Commission on April 2, 1979, pursuant to a warrant charging him with two violations of the conditions of his parole. *fn1" At an interview with respondent Doerbecker, a United States Probation Officer, it was agreed that petitioner's preliminary interview to determine whether there was probable cause to believe he had committed such a violation would be held on April 10, 1979. It was further agreed that, upon written request, adverse witnesses and their records would be made available at the hearing.

 In response to his letter requesting the presence of adverse witnesses and their records, petitioner was informed that:

 
"All adverse witnesses noted in your letter will be available, as will be the surveillance reports and monthly supervision reports for December, 1978 and January, 1979. . . .
 
"In regards to your last request, for the chronological entries of conversations made between Mr. Augello and Mr. Stein on reporting dates, it is declined at this time pursuant to the provisions of the Privacy Act (sic) (Freedom of Information Act, 5 U.S.C. § 552a Et seq.).
 
"Please be advised that after consulting with the legal counsel of the Parole Commission, no recording equipment, electronic or otherwise, will be permitted in the hearing room."

 On April 10, petitioner learned for the first time that the proceedings would not be recorded electronically or stenographically. His attorney thereupon objected to the procedure and refused to participate in the interview except to the extent of executing a form entitled, "Preliminary Interview and Revocation Hearing Form Part 2." Respondents proceeded with the taking of testimony on which they determined that probable cause had been established and prepared a summary of what occurred and a statement of reasons for the determination.

 Petitioner contends that respondents' conduct violated his right to due process of law. Specifically, he alleges that the prohibition against transcription of the preliminary interview, and the failure of respondents to provide him with the opportunity to examine All records pertaining to the evidence leading up to the issuance of the warrant for revocation, preclude him from intelligently confronting and cross-examining adverse witnesses at a final revocation hearing. He seeks release until respondents provide him with an opportunity to perpetuate his preliminary hearing and the records he demands. Since the parties agree that guidance in the circumstances presented is found in the Supreme Court's decision in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972), we turn to a review of the principles of law there announced.

 After noting that parole revocation is not part of a criminal prosecution and thus the full panoply of rights afforded criminal defendants do not apply, Id. 92 S. Ct. at 2600, the Court analyzed the process due in the preliminary hearing stage and emphasized the importance to both the State and the parolee of "an effective but informal hearing." The minimum requirements established are (1) an inquiry to determine whether there is probable cause or reasonable ground to believe that conditions of parole were violated, such inquiry to be held near the place of the alleged violation as promptly as convenient after arrest; (2) a hearing officer other than someone initially dealing with the case, although he need not be "neutral and detached" but can be an administrative officer, for example; (3) a hearing of which the parolee shall be given notice of the place and purpose with a statement of the alleged violations and at which he has the opportunity to appear on his own behalf and, upon written request, have made available to him for questioning those who have given information adverse to him. In concluding, the Court defined the responsibilities of the hearing officer:

 
"The hearing officer shall have the duty of making a summary, or digest, of what occurs at the hearing in terms of the responses of the parolee and the substance of the documents or evidence given in support of parole revocation and of the parolee's position. Based on the information before him, the officer should determine whether there is probable cause to hold the parolee for the final decision of the parole board on revocation. Such a determination would be sufficient to warrant the parolee's continued detention and return to the state correctional institution pending the final decision. As in Goldberg (V. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970)), "the decision maker should state the reasons for his determination and indicate the evidence he relied on . . .' but it should be remembered that this is not a final determination calling for "formal findings of fact and conclusions of law.' 397 U.S. at 71, 90 S. Ct. at 1022, (25 L. Ed. 287). No interest would be served by formalism in this process; informality will not lessen the utility of this inquiry in reducing the risk of error." 92 S. Ct. at 2603.

 Consistent with the Morrissey decision, Congress enacted the Parole Commission and Reorganization Act of 1976, 18 U.S.C. §§ 4201-4218, which codified the principles set forth by the Court. In particular, section 4214(a)(1)(A) states that an alleged violator shall have the opportunity to have:

 
"a preliminary hearing at or reasonably near the place of the alleged parole violation or arrest, without unnecessary delay, to determine if there is probable cause to believe that he has violated a condition of his parole; and upon a finding of probable cause a digest shall be prepared by the Commission setting forth in writing the factors considered and the reasons for the decision, a copy of which shall be given to the parolee within a reasonable period of time . . . ."

 Measured against these requirements, the allegations of the petition, assuming their accuracy, do not give rise to a deprivation of any constitutional right founded either in the due process clause of the fifth amendment or in the confrontation clause of the sixth. Nor do they abridge rights embodied in statute. Most fundamentally, it should be remembered that the preliminary interview is not a final determination of the parole revocation. Rather, the finding of probable cause is subject to De novo review at the final revocation hearing. *fn2" Thus, when viewed against the informality of the preliminary inquiry and its limited purpose, the procedures followed that precluded permanent recordation of the proceedings cannot be said to have deprived petitioner of any statutory or constitutional right.

 Although a transcript or tape recording might well assist petitioner's attorney in "confronting" respondents' witnesses at the final hearing presumably with inconsistent statements made earlier we do not believe such assistance is constitutionally mandated. It is sufficient under the constitution and Morrissey specifically confers such a right that respondents afford petitioner the opportunity to confront and cross-examine adverse witnesses. There is certainly no allegation in the petition that asserts a denial of this right. Neither the constitution nor the cases, however, requires preservation of testimony ...


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