417 F. Supp. 362 | E.D. Ill. | 1976
ORDER
Petitioner, John Wesley Riadon, has filed a petition for Writ of Habeas Corpus challenging the United States Board of Parole’s delay in holding a parole revocation hearing. Based on the pleadings and the hearing that was held on June 3, 1976 in the United States Penitentiary at Marion,, Illinois, the Court makes the following findings of fact and conclusions of law.
FINDINGS OF FACT
The following facts contained in. Joint Exhibits # 1 and # 2 were stipulated to by the parties at the June 3rd hearing.
On May 29, 1974, Mr. Riadon was interviewed by a parole officer concerning the federal detainer. He admitted the state convictions but denied the other charges.
Mr. Riadon was subsequently taken into federal custody and transferred to the United States Penitentiary at Marion, Illinois. On August 15, 1974, a parole revocation hearing was conducted by the United States Board of Parole. At that time, Mr. Riadon admitted that contrary to the conditions of his parole, he used hard drugs and associated with an individual who had a criminal record. A notice dated August 30, 1974 notified Mr. Riadon that his parole had been revoked.
At the June 3rd court hearing, petitioner claimed that he was prejudiced in various ways as a result of the delay in holding a parole revocation hearing. He testified that he was denied the chance to have his federal and state sentences run concurrently, that he lost the opportunity to take a civilian job at the Tennessee State Penitentiary, and that an important witness died prior to the parole revocation hearing.
Petitioner’s Exhibit # 1 was admitted into evidence. It is a notarized letter from Lionel Sweeney, Superintendent of the Print Shop at the Tennessee Prison Industries, stating that he offered the job of foreman to Riadon upon his parole from state authorities subject to action on the federal detainer and approval by the Director of the Tennessee State Prison Industries. Petitioner stated that pursuant to the letter he wrote Everett Poindexter, Chief Probation Officer at the Nashville Office of the United States Board of Parole, requesting a prompt parole revocation hearing but was informed that one would not be held until he was taken into federal custody.
Riadon also testified that a Jerry Morris, Riadon’s co-defendant in the state burglary case, would have spoken in his behalf at a parole revocation hearing but that Morris
The relief requested by this petition is credit on the federal sentence for time served from April 10, 1973, the date the warrant was first issued until June 29,1974, a period of 14 months and 19 days.
CONCLUSIONS OF LAW
Petitioner claims that he has been denied due process of law as a result of the Board of Parole’s delay in holding a parole revocation hearing. United States ex. rel. Hahn v. Revis, 520 F.2d 632 (7th Cir. 1975) holds that due process entitles parolees who are incarcerated for another offense to a timely Morrissey
Absent a showing of demonstrated prejudice severe enough to render the revocation hearing itself inadequate in terms of relief, we cannot say that the warrants should have been quashed or other habeas relief granted to preclude revocation of the paroles involved .
Johnson v. Holley, 528 F.2d 116 (7th Cir. 1975) at 119.
The issue now before the Court is whether Riadon has shown “demonstrated prejudice” as required by .Johnson v. Holley, supra. Each of his claims will be examined seriatim. ■
Riadon’s claim that he was denied the opportunity to have • concurrent sentences does not meet the test of “demonstrated prejudice”. First, even if Riadon had been provided with a timely hearing there is no guarantee that the Board of Parole would have executed the warrant and started the sentences running concurrently. United States ex. rel. Hahn v. Revis, supra, at 627. Second, in every pre-Hahn case there is the same potential prejudice based on nonconcurrent sentences. Johnson v. Holley, supra, and Cleveland v. Ciccone, supra, limited their retroactive application to cases of “demonstrated prejudice severe enough to render the revocation hearing itself inadequate in terms of relief”. Johnson v. Holley, supra at 119. This limiting language would not have been used if prejudice resulted simply from being forced to serve the original sentence consecutive to the most recent sentence. Otherwise, all revoked parolees could show prejudice.
Riadon next claims that he was denied the opportunity to take a civilian job. The evidence, however, is that this job was offered to him subject to two conditions, the first being the federal detainer, the second being the approval of the Tennessee Prison Industries. Riadon did not produce any evidence at the hearing that this second condition had been met. Therefore, the Court finds this claim does not meet the standard of “demonstrated prejudice”.
Mr. Riadon’s last claim, that an important witness died prior to the date of his revocation hearing, may stand on a different foot
For the foregoing reasons, the Court hereby orders that the period between June 13, 1973, the date the warrant was lodged, and August 14,1974, the date of petitioner’s parole revocation hearing,
IT IS SO ORDERED.
. The facts contained in Joint Exhibit # 1 were stipulated to subject to Riadon’s explanation of paragraphs 4 and 5.
. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).
. The June 13, 1973 date was chosen because the court feels that prejudice did not accrue until the warrant was lodged as a detainer. The August 14, 1974 date was chosen because it was the date of the final revocation hearing. The Court is unable to perceive the significance of the June 29, 1974 date chosen by petitioner.