*1 Accordingly, of the Com- motion Ninth Circuit
missiоn to transfer granted. petition of the ACLU is It is so ordered. U.S.App.D.C. See also 137
F.2d 1342. Appellant, BAKER,
Robert W.
v. Sheehy. and Donald J.
Thomas R. SARD Appellant, BAKER,
Robert W. SARD, Chairman,
Thomas R. et al.
Nos. Appeals,
United States Court
District of Columbia Circuit.
Argued Jan.
Decided Feb.
Suggestion Rehearing En Banc Granted
Argued Rehearing En Banc May 31, 1972. Granting Suggestion
Order Rehearing En Banc Vacated Oct. Rehearing Aug.
On Panel Decided Judgment of 1973 and Feb.
1972 Vacated. Washing- Bowles, Jr., Carter
W. ton, (appointed by D. court), C. appellant. Atty., Dept, Perkins,
Richard W. Justice, bar of the Connecticut, pro vice, hac special court, leave with whom Atty. Flannery, A. Thomas U. S. *2 416 filed, Relying Anderson, at the time the were and briefs on Birch v. Terry Dodell, U.S.App.D.C. 153, A. and Asst. John Nathan 123 358 520 F.2d (1964), Attys., brief, appellant for U. S. that once contends
pellees.
180-day
period
terminal
of his sentence
began to run his freedom was uncondi
Judge,
FAHY,
Before
Senior Circuit
tional,
longer subject
that he was no
to
and
and ROBINSON, Circuit
WRIGHT
jurisdiction
Parole,
Board of
Judges.
consequently
and that
execution of the
parole violator warrant оne week after
PER CURIAM:
pa
time was invalid.
In Birch the
parole revocation
back
role violation warrant
These
cases are
was issued and
during
appeal
period.
180-day
on
executed
remand to the District
after
taking
Court for the
of evidence
the Under
those
and
circumstances we did hold
making
invalid,
of factual
as to certain
warrant was
the Parole
having
appeal.
findings1
jurisdiction
The
the Board
lost
issues
over'
beginning
clearly
days.
District
are not
Birch at the
erroneous
of the 180
they dispose
on, however,
say:
and
Birch went
most
issues
opinion
This
will
here.
therefore
be
be,
“It
well
as was said in
consideration,
limited
these re-
Taylor,
F.Supp. 703,
Lavendera v.
234
maining
issues:
execution
(D.Kan.),
parоle
705
‘[a]
violator’s
parole
violator warrant was invalid
during
pe-
is issued
law,
as a matter of
and whether
may
during
riod of
executed
appoint
Board’s
failure
180-day period
terminal
full
represent
appellant
the revocation
[Emphasis
original.]
sentence.’
in the
process.
violated due
though
But
case,
is not our
the warrant
could have been issued
appellant
28,
On October
1955
prior
beginning
to the
the 180
years
was sentenced to serve
four
13
days.”
housebreaking
larceny.
and
On
April 14, 1964,
conditionally
U.S.App.D.C.
159,
he was
re
123
358 F.2d at
pursu
present
Reformatory
leased from Lorton
In the
case the warrant
long
(1970),
180-day
ant to 18
issued
peri
4164
U.S.C.
§
began
day
and,
od
took
bus
to run
California with
absent an unrea
reporting
dеlay
out
sonable
office in
execution of the war
Washington,
required
rant,
D. C. as he was
of the Board is contin
during
period.
do under the
ued at
conditions of his
least
release.
See
April 24,
Blackwell, Cir.,
On
1964 a warrant
issued de Tirado v.
5
morning of release. Plaintiff re- exhibits, Appeals’ 1. References 2. unless Item of the otherwise Court of Order of dеscribed, January are to defendants’ exhibits. Item 2 is dealt with first so these will be proximate chronological order. regarding spoke told, inmate not er but was plied that he had job report. going conditional release —it Plain- saying he was (Tr. 64); plaintiff going that he never told to see that he was stated tiff against any felony injunction if he commits get lawyer, brought (Tr. 64); M. back that T. Exhibit the Board. was one of the institutional Webb good re- time The conditions briefing duties included officers whose plain- explained to read lease were eligible they men for con- when became They April 6, included tiff (Tr. 63). In an ditional release affida- conditions: vit filed dated December immediately report I That will stated that he Washington my up to the Pаrole called Institutional Parole, East Board of Office Tr. 30. The Court finds Staff. Indiana, Building, Administration paragraphs 2, facts as stated in and 4 [Emphasis my instructions. W.N. testimony above, and credits original] Knupp. The does not credit go lim- I outside the 2. That will testimony plaintiff. fixed in Certificate four-year delay “Whether in exe- obtaining approval first cuting violator warrant was through the of Parole Parole connection, reasonable. In this evi- charge my ease. Officer *5 concerning steps by dence the taken will, I the first 3. That between any attempt the United States in to month, days succeeding of sixth each the execute warrant should be re- release, my until final make a full and ceived.” report to the truthful written April 20, 1964, 6. On Parole Officer of Administration East Build- requested Alfred the G. Zimmerman that Avenue, W., ing, 300 Indiana N. warrant, Parole a Board issue which Washington C., form D. April 24, issued on was 1964. Exhibits provided purpose, for I that and that 4 and 5. report my will submit each such to By April of memorandum Parole Officer for certification. Supervisor Parole Unit trans- Superintendent, D. C. Jail mitted to the my I understand that of limits per- copies warrant folder and of the desig- Good-Time Release have been taining plaintiff. Exhibit 6. * nated the Board as plaintiff’s reported that memorandum Columbia. Exhibit 3. unknown; that whereabouts were Lambert, sister, Regenia lived Mrs. 5. Plaintiff he never testified that Cumberland, Street, at 220 Potomac concerning met with T. M. Webb Maryland. By memorandum 29); (Tr. he conditions that Detectives, date, Dis- the Chief of anyone did not meet on the institu- with Department, Police trict Columbia re- tional staff before he was plaintiff ab- was was advised (Tr. 29); never told leased that he was out- was sconder for whom a warrant report (Tr. 43) ; only inter- standing. 7. On Exhibit view he had he was released was before Superintendent the D. C. Stanley Knupp, was then As- who copies sent of the warrant Jail Training Superintendent sistant the District Marshal United States 29-30); (Tr. Treatment and that Maryland. on that Exhibit 8. Also Knupp only of release stated condition Investiga- date the Federal Bureau of' plaintiff was committed a crime help plaintiff. tion asked locate was brought back. Plaintiff’s would be Exhibit 9. testimony is contradicted the contem- only 1-3, address poraneous (Exhibits In wherе see memoranda given 4). a was Knupp with warrant that he nev- connection exhibit testified sought person (Stipulation authorities. that of relatives of Counsel representative place as a as distant from Baltimore of the Federal Bu- proce- Investigation Cumberland, Maryland, testify.) normal reau of would so dure office U. S. Marshal’s April 11, 1968, telephone 12. On telephone local authori- Baltimore was Investigation the Federal Bureau ad- place receipt ties in the distant local vised authorities in the District of deputies would Two warrant. reported Columbia that apprehend person, be sent having by Redlands, been arrested Cali- trip since round to Cumberland police April 3, (Stip- fornia as of miles, proximately inquiry would representative ulation Counsel that a person want- first made whether Investigation of the Federal Bureau of deputies there, ed would testify.) so The United States trip. Negative responses make the Marshal, Columbia, District of advised telephone inquiries rou- were not Marshal, United States Dis- Central tinely Mar- on the records of the entered California, lodge trict a detainer although Accordingly, shal’s office. against plaintiff, based on the Board’s verify way the fact at this there is April 11, violator warrant. On time, in- reasonable believe that request was confirmed letter quiry by the Marshal’s office made transmitted warrant. Board’s. concerning plaintiff of local authorities that, requеsted Exhibit 10. The letter Cumberland, Maryland shortly after custody by your “when is assumed office May receipt of 1964. e„ the for the [i. Marshal Central Dis- Deputy (Stipulation of Counsel California], necessary trict make the so B. Mitchell would Marshal Gordon arrangements [plaintiff] to return testify.) ” the District . Columbia. . On May addition, records of the U. 1968 the United States Marshal office in Baltimore contain Marshal’s Central District of S. California *6 following plaintiff entry: custody took into on Board’s violator warrant. Exhibit 5. only address availa- 2-28-66 Cheeked negative, plaintiff’s good- notified local authori- 13. On the date ble— City release, April 14, 1964, ties, Police via time Cumberland he was tak- Van). Dept., (Capt. Detective Bureau en bus from Lorton to the District they keep taxicab, on alert Columbia. He hailed Stated a subject. Greyhound More He is known them. went Bus Station. Capt. from info to Mail There boarded bus to follow via a Vir- Southern ginia (Scheldt). 29. and then Van. Exhibit Cincinnati and St. Louis and the West Coast. He not did plain- 10. A wanted notice for flash area, return to this nor did he come tiff, District of submitted Colum- Mississippi back across the River until Jail, placed bia in the files of 52-53, he was arrested in 1968. Tr. 15. Investigation Federal Bureau of 29, April customary 1964. It Baker’s “Whether efforts to obtain personnel no- Bureau’s in identification connection with the tify department a that submitted before Board Parole were ob- prints prison re- wanted flash notice when structed authorities” agency any ceived from on that other During August 14. and after person. (Stipulation Counsel that plaintiff Phillip wrote several letters to representative of the Federal Bureau Hirshkop, Esq. representation to discuss Investigation testify.) would so before Board of Parole. Tr. 60. 13, Except plaintiff 11. June On the Federal 15. instance, one Investigation problem regard Bureau of had no reaffirmed with to communi- being sought plaintiff cating was still vio- Hirshkop, as a with Mr. and he did lator local Columbia fact communicate with Mr. Hirsh- hearing on De- plaintiff 22. At the revocation kop. Nor did Tr. 60. plaintiff regard made con- any cember problem to communicat- with case, nor counsel, tribution on any facts present Carter W. regarding request the action Bowles, Jr., Esq. Tr. 60. found violatiоn. take it Hirshkop was letter to Mr. One 16. in Court. Rev- He to his case referred This unknown”. “addressee returned erend Ferrell stated: le- consisted four handwritten letter you . If I what . . understand gal pages. Tr. exhibit size Plaintiff’s pre- you you say mean when are 18. responses, pared any to make Subsequent the return of 17. determine on then leaves Board to plaintiff notice that letter, received a information we have basis what prison the letter violative supplied to us us, before records 1968, which, in- regulations, in effect you violation of are correspondence prohibited alia, on le- ter gal your mandatory and whether release correspondence in excess paper and you declаred a viola- or not should be pages. Tr. 59. of two Exhibit 14. tor. times, plaintiff had At availa- 18. all “Summary Transcript” by copies inspection rele- of all ble for his the Board states: regulations; prison rules and vant subject is The Board finds plaintiff’s fact, “houseman” duties release, mandatory reg- in violation required rules and him distribute be, subject so to did intend Tr. to other 57-58. ulations inmates. subject finds to be a therefore al- Plaintiff never discussed mandatory and or- violator of release leged any institutional violation with mandatory ders his revoked. release personnel. 59-60. Tr. Exhibit years residency at In his twelve repri- The Board Parole did consider Lorton, never been has disciplined other before took its ac matter so alternаtives manded revoking plaintiff’s mandatory tion re thereof serious a notation placed The other alternatives considered lease. records. Tr. 70. (1) reinstating plaintiff to were: man appeared Plaintiff datory closing the case release and thus July of Parole on Revoking 1968; (2) out as of mandatory was continued case which time his reparoling plain *7 permit plaintiff to to obtain coun- seek acceptable plan; immediately tiff to an pro- The Parole Board sel. Exhibit 11. Revoking (3) mandatory and re- release agencies plaintiff vided list paroling plaintiff period of from after Ex- him. again ap- be able assist through three to months the Work six Plaintiff hibit Tr. 17. Program; (4) continu Release Further pеared the Board on November before ing to afford case without decision continued, again 1968, and case was plaintiff opportunity to secure another plaintiff having not obtained counsel. 28. counsel. Exhibit “(a) of Parole Whether the Board did not exercise 25. Board these modify- possibility considered options following for the reasons. Bak- and conditions of terms mandatory provided parole, 1. re- in 24 [Reinstatement er’s D.C.Code it had the action Baker been sentenced lease] instead of . Mr. § years. Statutory terminating a term of 4-13
did take in upon (his reinstituting provisions provide of his remainder sentence, mandatory) original (b) remain If the Board release would supervision alternatives, under for the what balance did consider years portion re- its decision to unserved reasons were for days. Baker ject minus 180 Mr. indicated them.” holding hearing might prior mandatory that he release a revocation to his proper comply be procedures. with that statute. considered a violation would option would To Exhibit 28. have exercised this willful Baker for a have rewarded Mr. Additionally,
violation law. Conclusions of Law unwilling to advise Mr. Baker was why four-year ex- period it should elapsed Board of reason 1. The par- option and refused ercise between the issuance and execution of hearing ticipate intended to in the the able, particularly violator warrant was reason light equitable in his decision case. reach an of the facts (a) been advised Mr. Baker had D.C. Board mandatory through Superintendent of his time of release of the Dis responsibilities placed su- under Jail, trict of Columbia communicated pervision plaintiff’s the unex- the balance of fact of absconder status pired including appropriate had indicated term. He authorities, authority Investigation; time the Board was without the Federal Bureau place supervision (b) him under had authorities address report nor plaintiff, that spond re- attempt he would and did to locate supervision. plaintiff through plain the address of (c) plaintiff sister; tiff’s left this area repa- and immediate [Revocation day Lorton, of his release from róle], previously Mr. indi- Baker Coast, went to the West and did not re rejection cated his of the Board’s au- brought arrest; turn until back after his thority and had absconded from su- (d) the warrant executed short gleaned pervision. nothing There was ly plaintiff's after arrest in California appearance from Mr. Baker’s before charge. on another Molinaro v. New re- Board indicate that Cf. Jersey, 24 L. S.Ct. reparoled voked and spond re- him he would (1970); Mitchell, Ed.2d 586 Dawkins supervision. affirmatively to U.S.App.D.C. 213, F.2d 646 reparole through [Revocation Work above, As stated in #2 Release]. para- nothing findings, presented Court’s see there was graphs 2-5, state re- conditions of indicate that Mr. Baker plaintiff lease which spеcifically in- not abscond from work release prior formed of supervision to his a second time. [A further' continuance to afford 3. Plaintiff’s efforts to obtain coun- opportunity another to se- sel in connection with the period cure Over a counsel.] the Board of Parole not thwarted months, spite having any way. or obstructed in advised was without authority appoint terms, Appeals’ means to the Court of spite for him and in the fact that does Order not direct this Court to do *8 the Board had advised Mr. Baker of other than make is- its fourth agencies might sue, regarding to which turn an the to alternatives revo- counsel, effort to secure Baker cation Mr. the considered Board its and gave rejecting no indication further con- reasons for them. The Court findings. of tinuance case would in has made However, the result securing Also, may implicit upon Appeals’ counsel. ad- the Court of (the vice of counsel that this Office of the Order Court draw U.S. a conclusion Attorney), findings. that, Accordingly, the Board in from believed those the light period of had Court of time that concludes that a ration- there was elapsed having Baker ob- al Mr. basis the decision of the Parole delay plaintiff’s tained attorney, an to an additional Board revoke conditional
423
end,
decided to reconsider the
our court
adopt one
release,
than
rather
Pending reconsidera-
matter en banc.
options.
other
granted
Suрreme
certio-
tion
Court
20, 1971
Dated: October
Gagnon
Scarpelli, 408
U.S.
rari
v.
F. CORCORAN
HOWARD
331
L.Ed.2d
92
33
S.Ct.
Judge
States
right
United
involving
of an indi-
(1972),
gent
appointed counsel at a
Judge,
BAZELON,
and
Chief
Before
probation.
In view
on the revocation of
TAMM,
McGOWAN,
LEV-
WRIGHT,
development
en banc order
of this
MacKINNON,
ROBINSON,
ENTHAL,
left with
the case was
vacated and
Judges.
WILKEY, Circuit
ROBB and
await the
of the court to
this division
Scarpelli,
our
outcome
FOR REHEARING
ON SUGGESTION
being
withholding the
maintained
BANC
EN
Following the deci-
mandate in Baker.
Scarpelli,
sion of
1973,
PER CURIAM.
L.
36
S.Ct.
sug-
appellant’s
On consideration
appellee
Ed.2d
for the
656 counsel
expe-
rehearing
gestion
en banc
response
appellant, in
and for
consideration, it is
dited
request
memoran-
our
submitted
that the
Court en banc
disposing
Ordered
case.
da
assist us in
granted
suggestion
and the
is
aforesaid
by the
be reheard
above cases shall
I.
sitting en banc.
Scarpelli
held
the Court
di-
District Court
The
Clerk
right
Amendment
Sixth
assist-
certi-
opinion and
return
rected to
ance of
counsel did
attach to a hear-
judgment as
copy
fied
Court’s
probation
or parole,
on revocation
his office
promptly
business
as the
deprivation
liberty
but that
since
permits.
process
result due
of law would
require in
some instances that
REHEARING
OPINION ON
appoint
represent
of Parole
Judge,
FAHY,
indigent
Senior Circuit
hearing.
Before
The
ROBINSON, Circuit
heavily
WRIGHT
relied
recent decision
Judges.
Morrissey
Brewer,
v.
408 U.S.
(1972),
S.Ct.
Lorton Code § days Ten later a warrant issued declar-
ing him in
of his conditional
violation
III.
custody on
He
in
release.
was taken
May 7, 1968,
and six
There is no
this
clear solution to
case in
posture.
later,
the
this
months
pellee
A
December
certain
in the
weakness
hearing.
рosition,
indirectly
however,
Board held a revocation
Board’s
strengthens
request
His
for
counsel was
The
Baker.
weak-
Board,1
by the
his
denied
which revoked
ness is that it cannot
said
be
with confi-
During
litigation
parole.
ensuing
represent-
dence that if
the
Baker had been
completed
challenging
counsel,at
ed
hearing
action Baker
this
the
the Board’s
finding
unexpired
his
service of
original
term of
that he had violated his
made, or,
sentence.2
would
made,
have been
if
persuad-
the Board would not have been
again
ed to
liberty
restore him
II.
parole, pursuant to the broad discretion-
powers
suggests
ary
Neither
Board nor Baker
available to the Board. 24
require
Board D.C.Code
that it
is feasible
Nеither of
§
possibilities
these
subsequent proceedings
to determine
under the
now
standards
is obviated
Scarpelli
not Baker was enti-
in the District
decision,
tled to
in
counsel at the
of Decem-
considered
our Baker
open
for we there
ber
connection the
have held
this
until now
points
record,
question, including
Board
ing
out that the
includ-
counsel
what ef-
regard might
fect our
in
of the District Court
decision
Baker,
upon
gone
all
left undisturbed
this court
has
supra,
absence of
should lead the court now hold
counsel.
In its careful
analysis
part
that Baker
of the
entitled to
vital
system
any
and,
justice,
counsel
in the
since
he is no
administration
event
longer
custody,
practical
in the
directly
no
is
relief
interests
both
individuаl
community
available to him. Baker
affected and the
contends that
place
where the
we should hold on the
Board seeks a
for
basis
offender,
Scarpelli
past
record that
under
he was enti-
free
con-
anti-social
duct,
encourages
tled to
counsel. He further contends
that, having
process
action other
than
been denied due
revocation.
by being deprived
liberty
states,
law
The
required assistance,
.is,
anything,
“Revocation
.
revocation of his
should be set
commonly treated as a failure of su-
emphasizes
aside. This relief he
is fea-
pervision.
presumably it
While
sible,
deprived,
presently
due
inappropriate
agent
field
nev-
voting rights
revocation,
revoke,
er to
the whole thrust of the
prior
place
occupies
system justice,
final
Board of Parole
to its
refusal
in our
appoint
provided
requires
preliminary
Baker with
both a
and a final hear-
agencies
ing
a list of
have assisted
in connection
either
obtaining
probation
parole.
781-782,
him in
counsel. Baker
un-
represent
able, however,
preliminary hearing
obtain counsel
S.Ct.
is con-
him, notwithstanding
than four
the more
cerned with whether or
there is
need
go
possible
month
allowed for
continuance
after
forward with
purpose.
preliminary
alleged
violation. No
hear-
Baker,
at all was afforded
but we have
2. That
not render the case moot
did
inquire
need to
into the effect of
ab-
Gagnon
Sсarpelli, supra,
clear from
sence,
dispose
we
of his case on
basis
U.S. at
ty in is to be section 2106 used, clearly perhaps when a de- never legal principle particu-
fined calls a PER CURIAM. action, lar course no such definitive of ap This is matter before the Court on principle points solution to a different pellant’s petition rehearing. Counsel adopt. that we Baker’s сase than parties for the have submitted memora Moreover, this course avoids the consti- foregoing, nda On of the consideration question tutional right whether denial appointed for Baker at counsel by judg- Ordered Court that hearing deprived the revocation him February ment of this entered Court equal protection by of the laws rea- be, hereby is, and the same vacat- provision son 24 D.C.Code § ed, and it is provision a Under by Further prisoner ordered a Court that who has retaken been judgment by appealed of the District Board of Parole issued be, given from appear hereby is, opportunity and the be vacated shall an and this Board, case remanded to thereof or the District a member consistently designated opin- Court so by with the an executive the Board. may represented ion of this filed herein date At by be finding appellant question of violation counsel.6 There is serious parole, pa- and the revocation of the conference reason of may indigent role, right representation be set aside and records right respect consistently with thereto be denied made so to can a like indicate. provides: U.S.App.D.C. at Section at 318 F.2d process require or other That due counsel court though appellate jurisdiction may hearings, affirm, modify, some vacate, any judgment, necessarily all, or set aside reverse view some decree, judges Hyser lawfully brought the en or order of court of our court banc review, may dissenting opinion Concurring before it for decision. remand entry Fahy, J, Wright, J, appropri- cause and direct concurred of such judgment, decree, U.S.App.D.C. order, require ate at F.2d 260. And proceedings may dissenting Bazelon, J, such further see the be had views C. just Edgerton, indigent under the circumstances. J that an is entitled to problem counsel, else a serious process light right 6. Since due Baker’s claim of arises of our decisions representation permitting kept him has retained counsel alive hearing. authority U.S.App.D.C. we have at a decide as we do in justice, being interest of 318 F.2d at held within possible non-retroactivity confines of the' a new constitutional decision.