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UNITED STATES EX REL. PIHAKIS v. THOMAS

April 18, 1980

UNITED STATES ex. rel. LOUIS M. PIHAKIS, Petitioner against DALE THOMAS, Warden of the Metropolitan Correctional Facility, Respondent.


The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

In a petition sworn to on June 8, 1979, Louis Pihakis seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2255, on the basis of alleged jurisdictional defects in a proceeding before the United States Parole Commission whereby petitioner's parole was revoked. *fn1"

 On December 13, 1978, while on parole pursuant to a federal conviction in Florida, petitioner was convicted in this District of mail and wire fraud and perjury. The Southern District convictions triggered the parole revocation process at issue. Petitioner was served with a parole violation warrant in connection with his Florida sentence and was taken into custody on March 9, 1979. The specification of charges in the warrant, dated January 1, 1979, read as follows:

 
"MAIL AND WIRE FRAUD (15 counts)
 
On 12/13/78, subject was convicted of the above law violations in U.S. District Court, Southern District of New York, according to USPO Hemby in his Memo dated 1/3/79."

 A parole revocation hearing was held on May 30, 1979. At that time, petitioner was served with a second warrant dated May 3, 1979, which specified the charges as follows:

 
"MAKING FALSE DECLARATION BEFORE A GRAND JURY
 
On December 13, 1978, subject was convicted of the above law violations in United States District Court, Southern District of New York according to USPO Hemby's memo dated January 3, 1979 and report dated March 6, 1979 with attachment."

 The criminal acts underlying all of the December 13 convictions, other than the perjury conviction, had been committed prior to the time petitioner was placed under federal parole supervision. Thus, those pre-parole acts could not support a finding that petitioner had violated the terms of his parole. However, since petitioner had committed perjury on April 12, 1978 while a parolee, that crime could form the basis of the finding of a parole violation.

 After Pihakis had been served with the "corrected" warrant, and before the revocation proceeding commenced, the Parole Commission offered the petitioner additional time to prepare for the hearing, which offer Pihakis declined. The hearing was consequently held as scheduled. Pihakis was found to have violated the terms of his parole by virtue of his perjury conviction. His parole was revoked and he was required to serve the sentence for his 1975 Florida conviction in full, without credit for his time on parole.

 In support of the petition, Pihakis claims that although the second warrant was labeled as a "correction" to the first, it was in fact a supplementary warrant which the Parole Commission was not empowered to issue after the March 27, 1979, expiration of his parole supervision term. 18 U.S.C.A. § 4210 (West Supp.1979); 28 C.F.R. § 2.44 (1978). *fn2" He also contends, in effect, that the first warrant did not give him notice that the perjury conviction was being used as a basis for the parole violation charge.

 The Government first argues that Pihakis' petition is moot. Insofar as the relief sought originally was bail pending appeal of the December 13 convictions, the petition is mooted by the Second Circuit's affirmance of those convictions. United States v. Pihakis, 607 F.2d 1000 (2d Cir. 1979). This does not, however, moot the petition as to the alleged illegality of the parole revocation.

 The petitioner is presently serving his parole violation sentence concurrently with the sentence imposed as a result of his December 13 convictions. The fact that the petitioner's release from custody could not be ordered, were his claims found meritorious, does not moot his petition. Section 2244(b) of Title 28, United States Code, authorizes the "release from custody or other remedy" as may be appropriate if a writ is issued. See Williams v. United States Bd. of Parole, 383 F. Supp. 402, 405 (D.Conn.1974), where the court, upon finding a due process violation in the decision to rescind Williams' parole, ordered that decision expunged from his record.

 In Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), the Supreme Court held that a discharge from parole did not moot a habeas corpus petition filed while petitioner was on parole. Although the petitioner was no longer in custody he retained "a substantial stake in the judgment of (the underlying criminal) conviction which survives the satisfaction of the sentence imposed on him." Id. at 237, 88 S. Ct. at 1559. The Supreme Court has also stated that the mere possibility that adverse collateral consequences may result from a criminal conviction is sufficient to rescue an appeal from claims of mootness once the imposed sentence has been served. Sibron v. New York, 392 U.S. 40, 55, 88 S. Ct. 1889, 1898, 20 L. Ed. 2d 917 (1968). See also Fiswick v. United States, 329 U.S. 211, 67 S. Ct. 224, 91 L. Ed. 196 (1946); United States v. Morgan, 346 ...


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