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09/01/65 Charles H. Phillips, v. United States Board of

September 1, 1965




Danaher, Wright and McGowan, Circuit Judges.




Appellant, an inmate at the federal penitentiary at Leavenworth, Kansas, filed a complaint in the District Court against appellees, members of the United States Board of Parole, seeking his release from detention. He alleged, essentially, that appellees had revoked his conditional release from a previous sentence without affording him a local revocation hearing of the kind contemplated by this court in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225 (1963). He contended also that appellees improperly failed to allow him credit against his original sentence for the time he was released. The District Court granted appellees' motion for summary judgment as to both grounds of appellant's complaint. We affirm its judgment in respect of the second ground, but we believe it ought not to have disposed of his primary claim simply on the basis of the pleadings and affidavits. I

Appellant was convicted in the Eastern District of Missouri for violating the federal narcotics laws on January 13, 1956, and sentenced to a term of ten years imprisonment. In early 1962, with 1,442 days remaining to be served on the full term, he was conditionally released to the Northern District of Illinois, the district of his domicile. More than a year and a half later, on September 15, 1963, he was arrested in Nevada on a charge of violating the narcotics laws. A warrant charging him with violating his conditional release issued shortly thereafter, and he was taken into custody under this warrant on December 20, 1963. By the terms of the Board's order revoking his conditional release, appellant's service of his original ten-year sentence recommenced on this latter date and will be completed 1,442 days later on November 30, 1967. Appellant contended in the District Court, and contends here, that he is entitled to have his sentence expire on January 12, 1966, ten years from the date on which his service of it commenced.

Sections 4205 and 4207 of Title 18 of the U.S.Code explicitly permit the Board to require a parolee whose parole is revoked to serve the entire unexpired portion of his original sentence. The constitutionality of this practice has been consistently upheld by the courts of appeals, including this one. See, e.g., Story v. Rives, 68 App.D.C. 325, 97 F.2d 182, cert. denied, 305 U.S. 595, 59 S. Ct. 71, 83 L. Ed. 377 (1938); Hodge v. Markley, 339 F.2d 973 (7th Cir. 1965); Van Horn v. Maguire, 328 F.2d 585 (5th Cir. 1964); see also Bates v. Rivers, 116 U.S.App.D.C. 306, 323 F.2d 311 (1963) (parole under District of Columbia statute). Appellant here was a mandatory releasee, as was the appellant in Story, but the applicable statute provides now, as it did then, that one so released "shall . . . be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced . . .." 18 U.S.C. ยง 4164. Appellant, therefore, could lawfully be required to serve the remaining 1,442 days of his sentence, without credit for the time he was released. Story v. Rives (supra). II

In support of the District Court's entry of summary judgment on the first portion of appellant's complaint, appellees advance two arguments. First, they point out that appellant's claim that he was denied a local revocation hearing prior to his return to prison was unsupported by extra-pleading proof. Appellees' contention that appellant was given an opportunity to request such a hearing but refused to do so, on the other hand, was supported by the affidavit of Lee A. Rubens, a United States Probation Officer, who averred that he had interviewed appellant four days following his arrest on the Board's warrant and had tendered him Parole Form 59A, which contained an offer of a local hearing. Appellant, according to Rubens, refused to sign the form. Appellant's failure to substantiate the allegations in his complaint with documentary or other evidence in effect left Rubens' affidavit uncontradicted for purposes of their motion for summary judgment, appellees now contend, and thus the District Court could properly conclude that there was "no genuine issue as to any material fact and that [appellees were] . . . entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c).

Alternatively, appellees argue that any defect in their treatment of appellant was cured on June 2, 1964, some three months after the filing of his complaint, by a new "offer" of a local hearing at which appellant could be represented by counsel and call witnesses on his behalf. This offer is said to be evidenced by the affidavit, filed in support of appellee's motion, of James K. Boen, a Parole Officer at the Leavenworth penitentiary. Under any view of the events prior to that date, appellees argue, appellant's complaint was rendered moot by his failure to accept Officer Boen's concededly belated offer of the very relief he sought in this suit.

In the circumstances of this case, neither of these grounds was sufficient, in our view, to warrant granting appellees' motion. Although nominally a civil case, appellant's suit possesses many of the characteristics of a collateral attack on a criminal conviction. Appellant has been in the custody of the federal prison system from the inception of this litigation and has, thus, been operating under the handicaps such detention necessarily imposes upon a litigant, both in terms of ability to secure the advice of counsel and of opportunities to track down the evidence necessary to support his case. He has, moreover, been without the advice or assistance of counsel since his interview by Officer Rubens. *fn1 Finally, appellant has lacked the opportunity of appearing for himself in person, and, as a consequence, both the District Court and this court have been deprived of another means of discovering the bases of his complaints and assaying the credibility of his representations. In these circumstances, we think it would be unfair, both to appellant and to appellees, to apply the requirements of Rule 56 with strict literalness. Appellant has neither the facilities nor has he had the opportunity to provide the documentary evidence that would have been necessary, by ordinary standards, to defeat appellees' motion for summary judgment., Appellant alleged in his complaint that:

At a conference with a parole officer held in the Courthouse after his arrest, plaintiff denied any violation, and requested that a hearing be held in Chicago and that he be informed of the charge and have his counsel present at the hearing as provided by statute. Plaintiff filled out the form required for this purpose . . ..

Appellees answered that appellant had indeed been offered a chance to request a hearing, but had refused either to elect or to waive a hearing. Appellant reiterated his version of the interview in a "traverse" of appellees' response, and claimed in addition that he had made his request in the presence of two other federal prisoners, one of whom was also incarcerated in Leavenworth. He asked the court to "order depositions submitted by these persons," who presumably could provide documentary support for his allegations. So far as the record reveals, no action was ever taken on this request. Appellees' motion for summary judgment was accompanied by the affidavits of Lee A. Rubens and of David Strong, apparently one of the two prisoners appellant claimed had been present when he requested a local revocation hearing. Rubens stated that he had interviewed appellant on December 24, 1963, and that:

During this interview I offered a Form 59A to Charles H. Phillips in order that he could choose any alternative on this Form and sign this Form so that I could submit it to the Parole Executive. This individual refused to sign the Form and refused to make any choice with reference to any alternatives on the Form.

Strong, however, declared that he had observed appellant complete a Form 59A furnished him by Rubens at a meeting on October 21, 1963.

When the District Court ruled on appellees' motion, it had before it appellant's verified complaint, based on the "best of his knowledge and belief," alleging that he had signed a request for a local hearing; appellees' unverified denial; Rubens' affidavit; and Strong's affidavit. These papers reflected two different versions of the December 24 interview, and Strong's affidavit suggested that there may have been an earlier meeting between Rubens and appellant. *fn2 In light of appellant's situation, caution was indicated in the granting of appellees' motion simply on the basis of these papers. Although the literal requirements of Rule 56(e) may not have been complied with we ...

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