The opinion of the court was delivered by: Stanton, District Judge.
Petitioner by letter to the court dated January 5, 1990
complains of delays in the processing of his habeas corpus
petition and requests an order directing respondents to answer
the petition by February 21, 1990. Respondents have applied
for, and received, two extensions of time to respond to the
Petitioner's letter has prompted a review of the underlying
petition. He was convicted in New York of grand larceny and
forgery on March 30, 1979. He was released on parole on June
8, 1982. In September 1984, while on parole, petitioner was
convicted of a felony after a jury trial in New Jersey. As a
result of his conviction, the New York State Parole Board in
November 1984 issued a warrant for retaking and detaining him.
The warrant was filed as a detainer with the State of New
Jersey. In 1985 petitioner pleaded guilty and was convicted in
New Jersey on other felony charges, and was ultimately
sentenced to a five to thirteen year prison term for all of
the New Jersey crimes.
At the time of petitioner's parole, N.Y.Exec. Law § 259-i
provided for preliminary and final parole revocation hearings
for a parolee convicted of a felony offense while on parole.
However, amendments enacted in 1984 abolished those hearings.
Accordingly, petitioner did not receive a preliminary parole
revocation hearing, and will not receive one upon the execution
of the warrant providing for his return to New York. N.Y.Exec.
Law § 259-i(3)(c)(i) & (d) (McKinney's 1990 Supp.). He claims
that the amendments abolishing the parole revocation hearings
violate his constitutional right to due process, and the ex
post facto and contract clauses of the Constitution.
In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33
L.Ed.2d 484 (1972), the Supreme Court held that the
requirements of due process apply to parole revocations. Id. at
482, 92 S.Ct. at 2600-01. With respect to the nature of the
process that is due, the Court set forth two requirements.
First, there must be a preliminary hearing "to determine
whether there is probable cause or reasonable ground to believe
that the arrested parolee has committed acts that would
constitute a violation of parole conditions." Id. at 485, 92
S.Ct. at 2602, citing Goldberg v. Kelly, 397 U.S. 254, 267-271,
90 S.Ct. 1011, 1020-22, 25 L.Ed.2d 287 (1970). Second, there
must be a revocation hearing, if desired by the parolee, that
"lead[s] to a final evaluation of any contested relevant facts
and consideration of whether the facts as determined warrant
revocation. 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." Id. 408 U.S. at
488, 92 S.Ct. at 2603-04.
Those requirements were set forth in the context of parolees
suffering revocation based on charges made by their parole
officers, and theretofore not established as true by any court
or administrative body. In Black v. Romano, 471 U.S. 606, 105
S.Ct. 2254, 85 L.Ed.2d 636 (1985), the Court stated that
Morrissey did not consider the hearing requirements of "a
revocation proceeding in which the factfinder was required by
law to order incarceration upon finding that the defendant had
violated a condition of . . . parole." Id. at 612, 105 S.Ct. at
2258. "Thus, the Court's discussion of the importance of the
informed exercise of discretion did not amount to a holding
that the factfinder in a revocation proceeding must, as a
matter of due process, be granted discretion to continue . . .
In this case, the requirements of establishing probable
cause and then an actual violation of parole have been
satisfied by petitioner's convictions. The requirement that
petitioner have an opportunity to show "that circumstances in
mitigation suggest that the violation does not warrant
revocation", Morrissey, 408 U.S. at 488, 92 S.Ct. at 2603, has
been made unnecessary by the New York State Legislature's
determination that revocation should be automatic when the
parolee is convicted of a felony while on conditional release.
There is nothing constitutionally improper in the
Legislature's determination. "The conviction of another crime
. . . is adequate, in and of itself, to support a revocation,
and, in such cases, a new inquiry is hardly necessary."
People ex rel. Maggio v. Casscles, 28 N.Y.2d 415, 418, 322
N YS.2d 668, 671, 271 N.E.2d 517, 519 (1971).
Accordingly, the New York State courts have sustained the
amendments to section
259 against arguments similar to the ones made by petitioner
here. See People v. Sullivan, 144 A.D.2d 605, 534 N.Y.S.2d 442
(1988); People ex rel. Roper v. Kennedy, 135 A.D.2d 924, 522
N YS.2d 320 (1987); O'Quinn v. New York State Board of Parole,
132 Misc.2d 92, 503 N.Y.S.2d 483, 485 (Sup.Ct. 1986); Cohen v.
New York State Board of Parole, 131 Misc.2d 495, 500 N.Y.S.2d
944 (Sup.Ct. 1986); People ex rel. Conyers v. New York State
Division of Parole, 130 Misc.2d 33, 494 N.Y.S.2d 818 (Sup.Ct.
1985); see also Pickens v. Butler, 814 F.2d 237, 239 (5th
Cir. 1987) ("Morrissey did not hold that a state is prohibited
from declaring that parole will be automatically revoked for
serious violations such as conviction of a felony.")
Because petitioner is not constitutionally entitled to
either a preliminary or final parole revocation hearing upon
his conviction of a felony while on conditional release, his
petition is without merit.
Accordingly, the Clerk of the Court is directed to dismiss
the petition. See Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.
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