Petitioners Brief — Moody v. Daggett

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Sunréte Court, U. &.

FiLE®

21 1976

IN THE | mien RODAK, JRCLERA

Supreme Court of the United States

OCTOBER TERM, 1975

No. 74-6632

MINOR MOODY,

Petitioner,

LOREN DAGGETT, Warden,

United States Penitentiary,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR PETITIONER

PHYLIS SKLOOT BAMBERGER

The Legal Aid Society

Federal Defender Services Unit

509 United States Court House

Foley Square

New York, New York 10007

(212) 732-2971

Court-appointed

Attorney for Petitioner

Washington, 0.C. e CLB PUBLISHERS’ « LAW PRINTING CO. » {202) 393-0625

INDEX

: Page

CQUEBEOUIN PRESENTED on. ccc ccc cece cence I

REGULATION INVOLVED ........... ccc ccc cccees 2

DT cLivieuteandcendendabeenseuteaces 3

DUBEGARY OF ABGGUBGENT 2... ccc ccc cc cece ccee 4

ARGUMENT

A PERSON WHO HAS BEEN CONVICTED OF

A NEW CRIME WHILE ON PAROLE HAS

LIBERTY INTERESTS AFFECTED BY THE

DISPOSITION OF THE PAROLE VIOLATION

WARRANT. THIS DISPOSITIONAL DECISION

MADE BY THE PAROLE BOARD MAY

CAUSE SUBSTANTIAL GRIEVOUS LOSS

AND THEREFORE SHOULD BE PRECEDED

BY A TIMELY MORRISSEY HEARING ........... 5

A. A parolee who has been convicted of a new

crime while on parole has liberty interests in

the length of his custody and the conditions

EE Sc iceondeueueunetie cade 8

1. The disposition of the warrant deter-

mines whether the original sentence will

continue to run and whether the parolee

shall receive credit for good time and for

the period on parole prior to the

GE‘ Secenedeweussueeeddeeedecedes 8

The pendency of the detainer affects

conditions of confinement ............... 1]

. B. The liberty interests in the length of custody

and conditions of confinement are protected

US ig a nr as oe 15

C. The liberty interest exists even if a parole

re ee 2 ne 16

(ii)

E. Petitioner is entitled to dismissal of the Page

warrant if he has been prejudiced by the

delay, or alternatively to a prompt parole

PISS eco ean are Sa i par ann eae 25

EY Sraws lean @ ane eb ak oh aw ee 08 oO 26

AUTHORITIES

Cases:

Adams v. United States, 432 F.2d 62 (Sth Cir.

tn Bitten te ade aa cu ka ak be ee Oe ad 8 ioe 21

Armstrong v. Manzo, 380 U.S. 545 (1965) ............. 22

Baxter v. Palmigiano, 96 Sup. Ct. 1151 (April 20,

a ea ee Be ae da a ne a as a 16

mae ©. Dapeem, GEE WH. SSS CISTI) ow ccc cece ccces 19

Braden v. 30th Judicial Circuit Court of Kentucky,

ee a oe Os ee ea bd 13,15

Canavari v. Richardson, 419 F.2d 1287 (9th Cir.

pee lo RS Sy et as aang ee ee 9

Cardaropoli v. Norton, 523 F.2d 990 (2d Cir. 1975)...... 16

Caton v. Smith, 486 F.2d 733 (7th Cir. 1973) ......... 20

Cleveland v. Ciccone, 517 F.2d 1082 (8th Cir.

DES Soccer hse asa rendeauend 6,7,10,21,22

Coe v. Armour Fertilizer Works, 237 U.S. 413

Ns ee ed eee wa 19,22

Colangelo v. United States Board of Parole, No.

74-251 (W.D. Ohio December 11, 1974), aff'd.

without opinion, 517 F.2d 1404 (6th Cir. 1975)...... 7

Cook v. United States Attorney General, 488 F.2d

667 (Sth Cir.), cert. denied, 419 U.S. 846

ee ea he aks i eee 7,13,19,21

Cooper v. Lockhart, 489 F.2d 308 (9th Cir. 1973) . 7,12,13,15

Fuentes v. Shevin, 407 U.S. 67 (1972) ............. 19,21

(iii)

Page

Gaddy v. Michael, 518 F.2d 669 (4th Cir. 1975),

petition for cert. filed August 5, 1975, Doc. No.

SE “Ge was dus eee eee ee eee oe ee 7,13,19,21

Gagnon v. Scarpelli, 411 U.S. 778 (1973) ....... 5 ,6,18,24,25

George v. Nelson, 399 U.S. 224 (1970) .............. 15

Goldsmith v. Board of Tax Appeals, 270 U.S. 117

DE 6% Gu eNd ean Ge eee bes 440600504008 48 16,20

Goss v. Lopez, 95 Sup. Ct. 729 (1975) ............. 19,21

Haines v. Kerner, 404 U.S. 519 (1972) ...........00.. 16

Hampton v. Mow Sun Wong, 44 U.S.L.W. 4737

Ss OL a EE cave cueeenacve sue teas us 16

Jones v. Johnston, Doc. No. 74-1424 (D.C. Cir.

Ee eee 6,7,10,12,17,21,24

Lawrence v. Blackwell, 298 F. Supp. 708 (N.D. Ga.

OD Sirctudi cau dima de mii eire nce: IS

Mathews v. Eldridge, 96 Sup. Ct. 893 (February 24,

o_O OT a ae an it ark S.C 24

Mattingly v. Ciccone, 503 F.2d 502 (8th Cir. 1974)....... 15

McEachern v. Henderson, 485 F.2d 694 (Sth Cir.

EE wie aed Webs aeed dite weeds 15

McKinney v. Taylor, 358 F.2d 689 (10th Cir. 1966)....... 9

Meachum v. Fano, 44 U.S.L.W. 5053 (Sup. Ct. June 25,

ME. sctandecesarestu cee oeeutnuseceeesss 12

Melson v. Sard, 402 F.2d 653 (D.C. Cir. 1968) .......... 9

Mock v. United States Board of Parole, 345 F.2d

ee ee 10

Montanye v. Haymes, 44 U.S.L.W. 5051 (Sup. Ct. June

ge A EEE Oh RD Reet Aa 2

Moore v. Smith, 412 F.2d 720 (7th Cir. 1969) .......... 21

Morrissey v. Brewer, 408 U.S. 471 (1972) . . 5,6,15,18,20,21,22

Nash v. Moseley, 433 F.2d 923 (10th Cir. 1970) .........

(iv)

Orr v. Saxbe, No. 74-341 (M.D. Pa. November 27, Page

1974), aff'd. without opinion, 517 F.2d 1399

(3d Cir. 1975), petition for cert. filed sub nom.

Reese v. Levy, October 10, 1975, Doc. No.

SR a IE aos Rene ENT AE 7,13,19,24

Peacock v. Hughes, 427 F.2d 359 (Sth Cir. 1970) ........ 9

Peyton v. Rowe, 391 U.S. 54 (1968) .............05. 15

Preiser v. Rodriguez, 411 U.S. 475 (1973) ............ 15

Preston v. Priggman, 496 F.2d 270 (6th Cir. 1974) ...... 20

Reese v. United States Board of Parole, 530 F.2d

231 (9th Cir. 1976), petition for cert. filed May :

3, 1976, Doc. No. 75-6703 ...........0 0005. 7,19,24

Shelton v. Meier, 485 F.2d 1117 (9th Cir. 1973) ........ 15

Small v. Britton, 500 F.2d 299 (10th Cir. 1974) ... . 4:7,19,21

Smith v. Hoey, 393 U.S. 374 (1969) .......-...0005e 15

Smith v. Rivers, 388 F.2d 567 (D.C. Cir. 1967) ....... 9,17

Speiser v. Randall, 357 U.S. 513 (1958) .............. 16

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 19

State Board of Regents v. Roth, 408 US. 562

I he ne a ore a eee 13,15,16,20

United States ex rel. Hahn v. Revis, 520 F.2d 632

(7th Cir. 1975), mandate recalled No. 75-1041,

ee RS rer eer 6,7,12,19,22,2

United States ex rel. Obler v. Kenton, 262 F.Supp.

i i Pace ea Cau y 6hee ee kes 17

United States ex rel. Vance v. Kenton, 252 F.Supp.

es SE 0 08 64 8 66S Ge ew heb NO ee ees 17

Willner v. Committee on Character, 373 US. 96

a ee er 16,20

Wingo v. Ciccone, 507 F.2d 354 (8th Cir. 1974) ........ 15

Wolff v. McDonnell, 418 U.S. 539 (1974) ...... 12,15,16,24

Zerbst v. Kidwell, 304 U.S. 359 (1938) ............. 9,21

(vy)

Page

Statutes and Regulations:

Parole Commission and Reorganization Act, P.L.

94-233, 94th Cong., 2d Sess.; 90 Stat. 219

EN, ae tes soe Cee eri ei et waaa 6

Pe ie Us OP, OD bd ss cc weed becc ees’ 25

Former 18 U.S.C. §4205 (1970), repealed, P.L.

94-233, 94th Cong., 2d Sess., §2,90 Stat.219 ...... 9

Former 18 U.S.C. §4207 (1970), repealed, P.L.

94-233, 94th Cong., 2d Sess., §2,90 Stat.219 ...... 21

ee Me I Sse ee ne a kt tee. 2 eee 9

a fet eS Ty) | 24

POUT De Gar ae, Bae CUNTSD oc ce cacccccececncs 9

a fe is fo Ts. ae anananan saree 23

Former 28 C.F.R. §2.53(a) (1975) ...........00. 9,17,22

Former 28 C.F.R. §2.53(b) (1975) ............... 8,9,10

Former 28 C.F.R. §2.53(cM1975) .................. 24

Former 28 C.F.R. 82.55 (1975) .... 0. ccc ee 22

Former 28 C.F.R. §2.55(c) (1975) ...........cccccee 23

Former 28 C.F.R. §2.56(b) (1975) ................. 16

28 C.F.R. §2.57, 41 Fed. Reg. 19340 (May 12,

i en Te eae REF 6

32 Fed. Reg. 15014 (1967) ................0000. 8,17

Other Authorities:

Bennett, The Last Full Ounce, 23 Fed. Prob. No. 2

SED 80 te cwansssdccendssekckaliieeccle: 12

Bureau of Prisons Policy Statement, No. 7200.11A

Ree ree ert eee 11,12

Bureau of Prisons Policy Statement, No. 7300.12D

ere a bee: 14

Bureau of Prisons Policy Statement, No. 7300.112

Pe er ern een 11,12,14

Bureau of Prisons Policy Statement, No. 7400.5D (July

ee re re ert! Een 12

( vi)

Bureau of Prisons Policy Statement, No. 7500.14A

A ie ae

Bureau of Prisons Policy Statement, No. 7500.20B

SE GN OD “iw e'd esha dneenwnes

Bureau of Prisons Policy Staternent, No. 7500.72

eS eee ae

Bureau of Prisons Policy Statement, No. 40100.18

i ne «ene eseh ates ede eae %

Goldfarb & Singer, Redressing Prisoners’ Grievances,

39 Geo. Wash. L. Rev. 175 (1970) ...........

Johnson, Federal Parole Procedures, 25 Admin. L.

i a. cvebuteeeceee eee tees

1970 United States Code Cong. and Admin. News

Me ns neeebeeees eee ee alhbeden bee’

Note, Detainers and the Correctional Process, 1966

WC EY © bce es eaddehueeseeeeess

Note, Parcle Revocation in the Federal System, 56

ee MOP UNO Seb ehdhesedeceneevees

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1975

No. 74-6632

MINOR MOODY,

Petitioner,

LOREN DAGGETT, Warden,

United States Penitentiary,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR PETITIONER

QUESTION PRESENTED

Whether a parolee who has been convicted of a new

crime committed while on parole is entitled to a timely

Morrissey hearing prior to a decision by the Parole

Board to let the warrant and detainer remain in effect.

REGULATION INVOLVED

40 Fed. Reg. 10583 (March 10, 1975)

Former Title 28 C.F.R.

§2.53 Warrant placed as a detainer and dispositional

interview.

(a) In those instances where the prisoner is serving

a new sentence in an institution, the warrant may be

placed there as a detainer. Such prisoner shall be

advised that he may communicate with the Board

relative to disposition of the warrant, and may request

that it be withdrawn or executed so his violator term

will run concurrently with the new sentence. Should

further information be deemed necessary, the Regional

Director may designate a hearing examiner panel to

conduct a dispositional interview at the institution

where the prisoner is confined. At such dispositional

interview the prisoner may be represented by counsel of

his own choice and may call witnesses in his own

behalf, provided he bears their expenses. He shall be

given timely notice of the dispositional interview and its

procedure.

(b) Following the dispositional review the Regidnal

Director may: /

(1) Let the detainer stand

(2) Withdraw the detainer and close the cae if

the expiration date has passed; -

(3) Withdraw the detainer and reinstate to

supervision; thus permitting the federal sentence

time to run uninterruptedly from the time of his

original release on parole or mandatory release.

(4) Execute warrant, thus permitting the sen-

tence to run from that point in time. If the warrant

is executed, a previously conducted dispositional

interview may be construed as a revocation hearing.

tional interview is not conducted, the Board shall

conduct annual reviews relative to the disposition of the

warrant. These decisions will be made by the Regional

Director. The Board shall request periodic reports from

institution officials for its consideration.

STATEMENT

On February 12, 1962, petitioner was sentenced by a

United States District Judge to a term of ten years in

prison. After serving four years and three months of

that sentence, petitioner was paroled (A.9).

Subsequently, petitioner was convicted of man-

slaughter and, on February 6, 1976, was sentenced to a

term of ten years’ imprisonment by the United States

District Court for the District of Arizona (A.3). While

petitioner was in custody on the intervening sentence,

the United States Board of Parole lodged a parole

violation detainer against him (A.9).

During 1972 petitioner asked the Board to execute

the detainer. By letter dated October 18, 1972, the

Board refused to do so, saying:

The Board has indicated it intends to take you

into custody as a federal parole violator at such

time as you are released from the sentence for

which you are now confined. (A.9).!

‘While the record here does not disclose any other

information about petitioner or the events which transpired, the

omissions are not determinative of the legal issue presented by

this case.

On January 22, 1976, apparently with the detainer

pending, petitioner filed an application for a writ of

habeas corpus, asserting that his parole revocation

hearing had not been granted in more than three years

and that he was unfairly denied a determination of the

charges. He sought dismissal of the warrant (A.10).

The district court dismissed the petition, stating that

a revocation hearing was not required until the warrant

was executed, and that the Board had no obligation to

execute the warrant because petitioner was in custody

on the intervening sentence (A.11), citing the Tenth

Circuit precedent, Smail v. Britton, S00 F.2d 299

(1974).

On May 7, 1975, the United States Court of Appeals

for the Tenth Circuit affirmed the dismissal on the

authority of Small v. Britton, supra.

SUMMARY OF ARGUMENT

A parolee who, by the commission of a new crime,

violates his parole, has liberty interests in the length of

the total period of his custody and in the conditions of

his confinement. These interests are contingent upon

the Parole Board’s decision whether to withdraw,

execute, or continue the parole vioiation warrant lodged

as a detainer with the custodial institution. If the Board

permits the detainer to stand, the parolee is deprived of

the concurrent running of his original term of custody

with his new intervening sentence. Moreover, it is likely

that he will never receive his earned good time credit

and credit for the period of his release on parole prior

to the violation. In addition, the presence of the

warrant lodged as a detainer affects his prison

classification status and institutional program, as well as

his eligibility for specific rehabilitative programs.

The parolee sustains a grievous loss of his liberty

interests if the Board permits the warrant to remain in

effect rather than choosing a more favorable disposi-

tion. Therefore, Morrissey v. Brewer, 408 U.S. 47]

(1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973),

require that the dispositional decision be made only

after a timely due process hearing, as prescribed by

Morrissey. The financial and administrative efforts of

providing such hearings are minimal.

Because the Board gave petitioner no hearing prior to

its decision to permit the detainer to stand, petitioner is

entitled to issuance of the writ of habeas corpus if the

delay caused prejudice, or in the alternative, an

immediate due process parole revocation hearing.

ARGUMENT

A PERSON WHO HAS BEEN CONVICTED

OF A NEW CRIME WHILE ON PAROLE

HAS LIBERTY INTERESTS AFFECTED BY

THE DISPOSITION OF THE PAROLE VIO-

LATION WARRANT. THIS DISPOSITIONAL

DECISION MADE BY THE PAROLE

BOARD MAY CAUSE SUBSTANTIAL

GRIEVOUS LOSS AND THEREFORE

SHOULD BE PRECEDED BY A TIMELY

MORRISSEY HEARING.

The Court has held that the liberty of a parolee is

protected by due process and may be terminated after a

violation only by “orderly process.” Gagnon y.

Scarpelli, 411 U.S. 778 (1973); Morrissey v. Brewer,

408 U.S. 471 (1972). The interest in liberty is at stake

whatever the nature of the violation which has resulted

in the revocation process. Accordingly, where, as here,

the violation is a conviction for a new crime rather than

a technical violation of parole, a timely hearing under

Morrissey v. Brewer, supra,” is nonetheless required.?

The Government asserts, however, that there are no

constitutional protections necessary once a violation has

been established, for the parolee is then subject to the

unfettered discretion of the Parole Board and has no

liberty interest at stake (Memorandum for Respondents

in response to petition for writ of certiorari, Doc. No.

2Since under the newly promulgated rules of the United

States Parole Commission, effective May 14, 1976 [28 C.F.R.

§2.57; 41 Fed.Reg. 19340 (May 12, 1976)], any order of the

United States Board of Parole entered prior to that date is valid

[28 C.F.R. §2.57; 41 Fed.Reg. 19340 (May 12, 1976)], this

case is not affected by the Parole Commission and Reorganiza-

tion Act, P.L. 94-233, 94th Cong., 2d Sess.; 90 Stat. 219 er seq.

(1976). The Parole Board’s decision in this case was dated

October 18, 1972, and, under the Government’s position, if the

order is valid petitioner is constitutionally entitled to no hearing.

3Indeed, the Seventh, Eighth, and District of Columbia

Circuits have concluded that a parolee convicted of a new crime

has a sufficient liberty interest to require the protection of a

timely Morrissey hearing. Jones v. Johnston, Doc. No. 74-1424

(D.C. Cir. March 23, 1976); United States ex rel. Hahn v. Revis,

520 F.2d 632 (7th Cir. 1975), mandate recalled, No. 74-1057

(August 27, 1975); Cleveland v. Ciccone, 517 F.2d 1082 (8th

Cir. 1975).

76-6632 at 9-10 and n.7).4 The Government also argues

that if a hearing is required to determine disposition the

procedure already provided by the Board is sufficient,

and a delayed revocation hearing is adequate.

‘This threshold posture taken by the Government is more

extreme than that of Small v. Britton, 500 F.2d 299 (10th Cir.

1974), the precedent upon which both the district court and the

court of appeals relied to deny the application for writ of habeas

corpus in this case. Small held that while a parolee was entitled

to the Morrissey hearing at the completion of his intervening

sentence, the Board was not required to give him that hearing

earlier. The court of appeals reasoned that the hearing was not

required until the warrant was executed by taking the parolee

into Federal custody on the parole warrant. The issue determined

by the courts of appeal has been the timeliness of the hearing,

not whether it will take place at all. Jones v. Johnston, supra,

slip op. at 33; Reese v. United States Board of Parole, 530 F.2d

231 (9th Cir. 1976), petition for cert. filed May 3, 1976, Doc.

No. 75-6703; United States ex rel. Hahn v. Revis, supra, 520

F.2d at 635-636, 638; Gaddy v. Michael, 519 F.2d 669, 671 (4th

Cir. 1975), petition for cert. filed August 5, 1975, Doc. No.

75-5215; Cleveland v. Ciccone, supra, 517 F.2d at 1086; Cooper

v. Lockhart, 489 F.2d 308, 309-310 (8th Cir. 1973); Cook v.

United States Attorney General, 488 F.2d 667 (Sth Cir.), cert.

denied, 419 U.S. 846 (1974).

>Six circuits have held that no hearing need be granted prior

to the end of the intervening sentence. Reese v. United States

Board of Parole, supra; Gaddy v. Michael, supra; Orr v. Saxbe,

No. 74-341 (M.D. Pa. November 27, 1974), aff'd. without

opinion, 517 F.2d 139° (3d Cir. 1975), petition for cert. filed

sub nom. Reese v. Levy, October 10, 1975, Doc. No. 75-5594;

Colangelo v. United States Board of Parole, No. 74-251 (W.D.

Ohio December 11, 1974), aff'd. without opinion, 517 F.2d

1404 (6th Cir. 1975); Small v. Britton, supra; Cook v. United

States Attorney General, supra.

A.A parolee who has been convicted of a new

crime while on parole has liberty interests in

the length of his custody and the conditions

of his confinement.

1. The disposition of the warrant determines whether

the original sentence will continue to run and

whether the parolee shall receive credit for good time

and for the period on parole prior to the violation.

Under former 28 C.F.R. §2.53(b) (1975), the rule

in effect when petitioner requested execution of his

detainer® the Board had available to it three methods of

dealing with the parole violation warrant. It could have

withdrawn the warrant and detainer, executed the

warrant, or, as it did here, permitted the warrant to

remain in effect, thereby leaving the detainer undis-

turbed.

Had the Board lifted the detainer and withdrawn its

warrant, petitioner would have been in the status he

had at the time of his release on parole. His original

sentence would have continued to run, and he would

Former 28. C.F.R. §2.53(b), 40 Fed. Reg. 10983 (March

10, 1975) states:

(b) Following the dispositional review the Regional

Director may:

(1) Let the detainer stand

(2) Withdraw the detainer and close the case if the

expiration date has passed;

(3) Withdraw the detainer and reinstate to supervi-

sion; thus permitting the federal sentence time to run

uninterruptedly from the time of his original release

on parole or mandatory release.

(4) Execute the warrant, thus permitting the

sentence to run from that point in time. If the warrant

is executed, a previously conducted dispositional

interview may be construed as a revocation hearing.

This rule was preceded by one [32 Fed. Reg. 15014 (October

31, 1967)] in which the dispositional possibilities were the same.

not have been deprived of good time credit’ or credit

for the period while on parole (street time). Former 28

C.F.R. §2.53(b)(3) (1975).

If the Board had executed the detainer, the time on

the original sentence would have commenced to run

from the moment of execution. Former 28 C.F.R.

§ §2.53(a); 2.53(b)(4) (1975).® Although petitioner

would have lost street time and good time,’ the original

sentence would have run concurrently with the

intervening sentence from the moment of the Board’s

decision. Former 28 C.F.R. §2.53(b)(4) (1975); Melson

vy. Sard, 402 F.2d 653, 654 (D.C. Cir. 1968); Smith v.

718 U.S.C. §4161 (1970) states, in relevant part:

Each prisoner convicted of an offense against the United

States and confined in a penal or correctional institution

for a definite term other than for life, whose record of

conduct shows that he has faithfully observed all the rules

and has not been subjected to punishment, shall be entitled

to a deduction from the term of his sentence beginning

with the day on which the sentence commences to run, as

follows:

Ten days for each month, if the sentence is ten years or

more.

8issuance of the parole violation warrant stops the sentence

from running from the date of the violation, and execution of

the warrant starts the time running again. Former 18 U.S.C.

§4205 (1970), repealed, P.L. 94-233, 94th Cong., 2d Sess., §2;

90 Stat. 219; former 28 C.F.R. §2.51 (1975); Zerbst v. Kidwell,

304 US. 359 (1938).

%Former 18 U.S.C. §4205 (1970); former 28 C.F.R. §2.51

(1975); Peacock v. Hughes, 427 F.2d 359 (Sth Cir. 1970);

Canavari v. Richardson, 419 F.2d 1287 (9th Cir. 1969);

McKinney v. Taylor, 358 F.2d 689 (10th Cir. 1966).

Rivers, 388 F.2d 567, 575 (D.C. Cir. 1967); Mock vy.

United States Board of Parole, 345 F.2d 737 (D.C. Cir.

1965).

The third disposition under the Board’s rules, the one

made here, was to permit the detainer to stand. Former

28 C.F.R. §2.53(b)(1) (1975). This disposition con-

tinued the cessation of the original sentence, and required

the parolee to serve his original sentence consecutively to

the intervening period of incarceration. It extended the

parolee’s maximum expiration date, since the

parolee receives no credit on his original sentence while

serving the intervening sentence. There is also the

substantial likelihood that at the end of the intervening

sentence he will lose credit for his parole release time

and his earned good time. See Jones v. Johnston, Doc.

No. 74-1424, slip op. n.16 at 16-17, 25 (D.C. Cir.

March 23, 1976); Cleveland v. Ciccone, 517 F.2d 1082,

1086 (8th Cir. 1975).

Thus, the Board’s determination to allow the detainer

to stand carried with it a serious deprivation of

petitioner's freedom, as had the administrative decisions

rendered in Morrissey and Scarpelli. By its decision, the

Board insured that the original term could not run

concurrently with the new sentence, and that petitioner

would probably lose credit for the good time he may have

earned by satisfactory prison behavior as well as credit

for the period he was on parole prior to the conduct

which constituted the violation. As a result of the

decision, petitioner faces an additional period of

custody of up to five years and three months after

completion of his present period of incarceration.

Consequently, petitioner has a substantial interest in the

timely disposition of the warrant.

2. The pendency of the detainer affects conditions of

confinement. !°

The detainer has an effect on the assignment of

classification and prison programming, both of which are,

by Bureau of Prisons regulations, protected interests. The

purpose of custody classification is “to assure the orderly

operation and security of the institution, community

protection, to provide a means for assigning quarters,

details and community activities’ [Bureau of Prisons

Policy Statement No. 7300.112 (April 8, 1976)], and for

development of an individual program plan and treat-

ment. Bureau of Prisons Policy Statement No. 7200.11A

(March 6, 1972). The standards for assigning classi-

fication set out by the Bureau are, infer alia, degree of

escape risk, history of violent behavior, length of

sentence, type of offense, prior record, threats against

Government officials, institutional adjustment, and the

demonstrated ability to function with limited or no

supervision. Bureau of Prisons Policy Statement No.

7300.112 45 (April 8, 1976).

Not only is the classification assignment and program

for each inmate made in accord with the standards

established by the Bureau of Prisons, but the Bureau’s

regulations also prohibit increase in restrictive custody

when the inmate is transferred from one institution to

another unless there are circumstances which warrant an

increase and the reasons for the increase are documented.

lOThis claim does not go to the validity of the initial lodging

of a detainer when a judgment is rendered. The act of lodging a

detainer is comparable to detaining a parolee after the

preliminary hearing deemed necessary by Morrissey.

Bureau of Prisons Policy Statement No. 7300.112 47

(April 8, 1976). Further, even if the transfer, with its

potential loss of classification status, is for disciplinary

reasons, the transfer may be made only after notice is

given and a hearing is held at which the inmate may call

witnesses and present evidence. Bureau of Prisons Policy

Statement No. 7400.5D 49(c); 9(d)(6) (July 7, 1975).

Thus, the Bureau’s regulations have created a liberty

interest in classification and programming determined

and modified by specific standards in accord with specific

procedures. Wolff v. McDonnell, 418 U.S. 539 (1974):

see Meachum v. Fano, 44 U.S.L.W. 5053, 5057 (Sup. Ct.

June 25, 1976): Montanve v. Haymes, 44 U.S.L.W. 5051

(Sup. Ct. June 25, 1976).

A detainer is one factor considered in the initial

classification. Bureau of Prisons Policy Statement No.

7200.11A §§5(D)(2)(b) at 4; 6(A) at 5 (March 6,

1974.'' The detainer is treated as an element separate

from the circumstances of the new crime [see id at

§5(D)(1)(a), (b)] and has an independent effect on

classification. An inmate is adversely affected by a

detainer because he is considered a higher escape risk [see

Note, Detainers and the Correctional Process, 1966 Wash.

U.L.Q. 417, 419; Bennett, The Last Full Ounce, 23 Fed.

"On the effects of detainers, see generally Jones v. Johnston,

supra, slip op. at 11-12, 22-23; United States ex rel. Hahn v.

Revis, supra, 520 F.2d at 637; Cooper v. Lockhart, supra, 489

F.2d at 313-315; S.Rep. No. 91-1356, 91st Cong., 2d Sess.

(November 23, 1970), reproduced at 1970 U.S. Code Cong. &

Admin. News 4864, 4866: Goldfarb & Singer, Redressing

Prisoners’ Grievances, 39 Geo. Wash. L. Rev. 175, 228-230

(1970); Note, Detainers and the Correctional Process, 1966 Wash.

U.L.Q. 417, 418-422.

Prob. No. 2 at 20-21 (1959); Lawrence v. Blackwell, 298

F. Supp. 708, 714 (N.D. Ga. 1969)], and because the

presence of the detainer indicates the likelihood of an

additional period of incarceration. Both are factors

considered in classification.!?

2The Government asserts that it is not the detainer which

produces these results, but decisions of the custodian. However,

the custodian’s actions are in response to the detainer (Cooper v.

Lockhart, supra, 489 F.2d at 313) and he acts as agent for the

jurisdiction issuing the detainer. See Braden v. 30th Judicial

Circuit Court of Kentucky, 410 U.S. 484, 498499 (1973). Cf.

State Board of Regents v. Roth, 408 U.S. 562, 573-574 (1972).

In Gaddy v. Michael, supra; Cook v. United States Attorney

General, supra; and Orr v. Saxbe, supra, the courts concluded

that it was not the detainer but the underlying facts of the new

crime and the fact of the parole violation which affected

classification. However, both the underlying facts and the

pendency of the detainer have effects on classification. Further,

the purpose of a parole revocation hearing is to reveal information

about the new crime as well as other mitigating facts.

The United States Bureau of Prisons itself has recognized the

deprivations caused by a detainer:

[U]ncertainty as to status can have an adverse effect on

our efforts to provide offenders with correctional services,

we should encourage detaining authorities to dispose of

pending untried charges against offenders in Federal

custody.

The casework staff at all institutions may cooperate

with and ive assistance to offenders in their efforts to

have detainers against them disposed of either by having

the charges dropped, by restoration of probation or parole

status, or by arrangement for concurrent service of the

state sentence.

The presence of a detainer oftentimes has a restricting

effect on efforts to involve the offender in correctional

(continued)

Furthermore, whenever a detainer is lodged, its serious-

ness, which is determined in part by the ultimate

sentence to be served on the violation, is considered in

classification and programming. Bureau of Prisons Policy

Statement No. 7300.112 44 (April 8, 1976): Bureau of

Prisons Policy Statement No. 7500.72 44 (May 8,

1972). The sentence which must be served by the

parolee for the parole violation is, of course, determined

by the Parole Board.

The detainer must also be considered in classification

reductions. Bureau of Prisons Policy Statement No.

7300.112 94 (April 8, 1976). It is highly relevant to

appraising the inmate’s ability to function with limited

supervision, a factor which must be considered in giving

minimum or community custody. Minimum custody

renders the inmate eligible for the least secure housing

facilities, honor camps, and farms, and work outside the

institution with reduced supervision. Bureau of Prisons

Policy Statement No. 7300.112 45(d) (April 8, 1976).

This type of custody is required for work/study release

[Bureau of Prisons Policy Statement No. 7500.20B

€4(c\2) (November 16, 1971)] which enables the

inmate to earn meritorious good time (id.. © 4(e) at 5).

The lowest level of custody — community custody -- is

necessary for release on furloughs. Bureau of Prisons

Policy Statement No. 7300.12D 4 5(c)(1)(b) (March 19.

1976).

(footnote continued from preceding page)

programs. For this reason, caseworkers at Federal institu-

tions are expected to assist offenders in their efforts to

have detain[ers] disposed of.

Bureau of Prisons Policy

Statement No. 7500.14A at 1°

(January 7, 1970).

15S

Since both minimum and community custody allow a

low degree of supervision, the detainer is virtually certain

to preclude such classification assignments.

These tangible results of the detainer in turn affect the

parolee’s own incentive for rehabilitation and participa-

tion in prison programs, since at some stage the detainer

will preclude further advancement. See Smith v. Hoev,

393 U.S. 374, 378-379 (1969).!°

B. The liberty interests in the length of custody

and conditions of confinement are protected

by due process.

Liberty includes freedom from bodily restraint. State

Board of Regents v. Roth, 408 U.S. 564, 572 (1972).

Thus, confinement resulting from the refusal to allow

the sentences to run concurrently may not be imposed

without due process (Morrissey v. Brewer, supra) even if

that period of restraint does not begin until a future date.

Peyton v. Rowe, 391 U.S. 54 (1968). Good time credit,

having been granted by statute and earned by the parolee,

may not be denied without an opportunity to be heard.

Wolff v. McDonnell, 418 U.S. 539, 558 (1974); Preiser v.

Rodriquez, 411 U.S. 475, 487-488 (1973). An inmate's

current classification and his institutional program,

\37> avoid the adverse results, state parole detainers and those

based on criminal charges may be challenged in Federal courts.

Braden v. 30th Judicial Circuit Court of Kentucky, supra, 410

U.S. 484; George v. Nelson, 399 U.S. 224 (1970); Cooper v.

Lockhart, supra. Some Federal courts have directed that Federal

prisons give no effect to unprocessed state detainers lodged

ygainst inmates of Federal institutions. Wingo v. Ciccone, 507

F.2d 354 (8th Cir. 1974); Mattingly v. Ciccone, 503 F.2d 502

(8th Cir. 1974); McEachern v. Henderson, 485 F.2d 694 (Sth

Cir. 1973); see also Shelton v. Meier, 485 F.2d 1117 (9th Cir.

1973). Similarly, unprocessed Federal detainers should not be

permitted to have their adverse effects.

having been established in accord with Bureau of Prisons

standards and protected by Bureau of Prisons procedures,

may not be made substantially more restrictive without

procedural due process. Wolff v. McDonnell, supra, 418

U.S. at 547, 571; Haines v. Kerner, 404 U.S. 519

(1972).'4 Nor may he be deprived of a more favorable

prison classification and the right to participate in

programs for which he is otherwise eligible without due

process. Cardaropoli v. Norton, 523 F.2d 990, 994-995

(2d Cir. 1975); see Hampton v. Mow Sun Wong, 44

U.S.L.W. 4737, 4741 (Sup. Ct., June 1, 1976); Board of

Regents v. Roth, supra, 408 U.S. at 572; Willner vy.

Committee on Character, 373 U.S. 96, 102-103 (1963):

Speiser v. Randall, 357 U.S. 513 (1958); Goldsmith vy.

Board of Tax Appeals, 270 U.S. 117 (1926).

C.The liberty interest exists even if a parole

violation is established.

Under the Board’s rules and procedures, the finding

of a violation does not preclude withdrawal or

execution of the warrant and detainer. The Board goes

beyond that to determine whether these favorable

dispositions are appropriate [former 28 C.F.R. §2.56(b)

(1975)]. Thus, under the rules, even if the violation is a

new conviction, the parolee has the right to ““communi-

\41n Baxter v. Palmigiano, 96 Sup.Ct. 1551, 1560 (April 20,

1976), the Court declined to rule on what due process was required

in prison disciplinary proceedings where the records did not reveal

the liberty which was lost by the inmate. However, here the effect

of the detainer can be demonstrated by examining the Bureau of

Prisons policies.

cate with the Board relative to disposition of the

warrant,” and to _ dispositions of withdrawal or

execution of the warrant. Former 28 C.F.R. §2.53(a)

(1975)]. This communication is assumed to entitle the

parolee to present mitigating evidence with respect to

the new crime or relevant to the parolee’s reputation

and conduct in the community. Jones vy. Johnston,

supra, slip op. at 17-18.

There can be no doubt that in Federal parole

proceedings the dispositional decision has traditionally

been determinative of liberty interests. See United

States ex rel. Obler v. Kenton, 262 F.Supp. 205, 208-9

(D. Conn. 1967); United States ex rel. Vance vy.

Kenton, 252 F.Supp. 344, 346 (D. Conn. 1966); Note,

Parole Revocation in the Federal System, 56 Geo. L. J.

705, 717-718 n.101, 731 (1968).'> Indeed, according

to Parole Board Chairman Maurice Sigler, even under

the challenged procedures, from a group of 30 parolees

convicted of new crimes and given dispositional reviews,

one-third received withdrawal or execution of the

warrant. Affidavit of Chairman Sigler quoted in Jones vy.

Johnston, supra, slip op. at 16-17 n.6; see also Smith vy.

Sin Smith v. Rivers, 388 F.2d 567, 575 (D.C. Cir. 1967), the

issue of what procedures were necessary for disposition of

pending Federal parole violation warrants was avoided because

the Board issued a new set of rules [32 Fed.Reg. 15014

(1967)], which ostensibly established a fair procedure for

disposing of detainers. The court of appeals said:

[W]e are not prepared to hold that failure to afford a

procedure whereby the violator may seek a favorable

disposition, or an outright refusal to consider proffered

evidence in mitigation, is immune from judicial overview.

388 F.2d at 576.

Rivers, supra, 388 F.2d at 576 n.18.

Reflecting the importance of the dispositional

decision to the parolee’s liberty interests, both

Morrissey v. Brewer, supra, 408 U.S. at 478-480,

483-484, 488, and Gagnon v. Scarpelli, supra, 411 U.S.

at 787, 790, hold that this discretionary aspect of the

revocation decision may be exercised only after a

prescribed due process hearing. The hearing will enable

the Board to have an accurate knowledge of the

parolee’s behavior (Morrissey v. Brewer, supra, 408 U.S.

at 484), and to consider whether the facts as

determined warrant revocation. The parolee “must have

an opportunity to be heard and to show... that

circumstances in mitigation suggest that the violation”

should not result in unfavorable dispositions (Morrissey

v. Brewer, supra, 408 U.S. at 488), and _ this

opportunity must be given although “tin most cases” the

parolee has been convicted of another crime or has

admitted the charges (Gagnon v. Scarpelli, supra, 411

of the hearing is important to the parolee’s liberty,

Gagnon provides -counsel even where the alleged

violation is admitted or is a matter of public record if

the reasons making revocation inappropriate are such

161n light of Gagnon, the Government is in error when it relies

on one sentence in Morrissey for the position that no hearing is

required when the violation is established. Moreover, that

language in Morrissey, 408 U.S. at 490, is that a violation may

be reasonable grounds for revoking parole under state standards.

However, under Federal standards the fact of a conviction alone

does not produce reasonable grounds for an unfavorable

disposition until the whole of the parolee’s record is reviewed.

See post at 20, n.18.

that the parolee needs assistance in their presentation

(411 U.S. at 790).!7

The broad discretion permitted the Board in making

its disposition only emphasizes that the discretion must

be exercised after a fair proceeding. Goss y. Lopez, 95

IMIn Gaddy v. Michael, supra; Small v. Britton, supra; Cook v.

United States Attorney General, supra; Reese v. United States

Board of Parole, supra; and Orr v. Saxbe, supra, the courts of

appeal concluded that the petitioners’ failure to show evidence in

mitigation either at the belated parole revocation hearing or at

the proceeding on the writ of habeas corpus indicated that they

were not prejudiced by the Board’s procedures. However, the

likelihood of success in each case is not relevant to the question

of what procedures should be generally used. If due process pro-

tects the liberty interest, each individual must be afforded an op-

portunity to make his own case. Fuentes v. Shevin, 407 U.S. 67, 87

(1972); Stanley v. Illinois, 405 U.S. 645, 654-655 (1972); Bell v.

Burson, 402 U.S. 535, 541 (1971); Coe v. Armour Fertilizer

Works, 237 US. 413, 424 (1915). Moreover, case by case

determination of whether an unreasonable delay in the parole

hearing resulted in prejudice requiring release is likely to increase

the number of requests for judicial determination of the issue by

petitions for writs of habeas corpus. See Jones v. Johnston,

supra, slip op. at 35. A timely parole hearing would avoid such a

result. )

In addition, here no parole hearing has ever been granted to

petitioner, and the Board’s position is that none need be given.

There is no indication in the record that petitioner was advised

that he could submit evidence on his own behalf or that he

would have been able to do so without assistance. Compare

United States ex rel. Hahn v. Revis, supra, 520 F.2d at 638,

where complicated mitigating facts were presented by counsel.

The denial of the pro se petition for writ of habeas corpus was

premised entirely on the holding that no parole hearing need be

given prior to the expiration of the intervening sentence.

Sup. Ct., 729, 737 (1975); Board of Regents v. Roth,

supra, 408 U.S. at 576 n.15; Morrissey v. Brewer, supra,

408 U.S. at 483; Willner v. Committee on Character,

supra, 373 U.S. at 103; Goldsmith v. Board of Tax

Appeals, supra, 270 U.S. at 123. Nor, indeed, is the

discretion so expansive as the Government’s argument

would have it. At least since December 1971, the Board

has stated that its policy is that “‘information to sustain

revocation shall consist of the fact of violation, plus

consideration of whether or not the parolee is a good

parole risk.”!8 See Preston v. Priggman, 496 F.2d 270,

274 (6th Cir. 1974): Caton v. Smith, 486 F.2d 733,

735 (7th Cir. 1973); Note, Parole Revocation in the

Federal System, supra, 56 Geo. L.J. at 717-718 n.101,

724.

The purpose of the due process proceeding required

here is to minimize unjust revocation so that the parolee

will not be detained longer than necessary. The hearing

will also help to prevent the in-prison consequences of a

detainer left pending without justification. The mere

pendency of a parole violation detainer is likely to be

used in the prison classification procedure not only as a

measure of increased escape risk, but also as an adverse

index of the parolee’s ability to function under reduced

supervision. However, a decision by the Parole Board to

withdraw or execute the warrant and detainer is a finding

that the parolee is a “good risk’’ and can comply with

United States Board of Parole Policy Paper on Parole

Revocation at 13 (December 1971), attached to Bureau of

Prisons Policy Statement No. 40100.18 (February 2, 1972).

conditions of reduced supervision. A favorable Parole

Board decision is thus likely to result in a more

advantageous prison classification assignment.

The hearing will enable the Board to exercise its

discretion more accurately, for the decision will be

premised on knowledge of the facts. Morrissey v. Brewer,

supra, 408 U.S. at 484. See Goss v. Lopez, supra, 95 Sup.

Ct. at 739; Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972);

Jones v. Johnston, supra, slip op. at 18-19, 43-44. The

hearing does not, however, interfere with the Board’s

discretionary power to render what it considers to be an

appropriate decision. Morrissey v. Brewer, supra, 408

U.S. at 483.!?

This distinction was overlooked in Gaddy v. Michael, supra,

430 F.2d at 678, where the court held there was no right to an

opportunity to present evidence in favor of a specific disposition.

Petitioner’s analysis does not affect the principle of Zerbst v.

Kidwell, supra, 304 U.S. 359; see, e.g., Nash v. Moseley, 433

F.2d 923 (10th Cir. 1970); Adams ». United States, 432 F.2d 62

(Sth Cir. 1970); Moore v. Smith, 412 F.2d 720 (7th Cir. 1969),

that service of an intervening Federal sentence does not

automatically continue the running of the original term of

imprisonment.

Further, the constitutional question is not answered by the

position in Small v. Britton, supra, and Cook v. United States

Attorney General, supra, that under the language of former 18

U.S.C. §4207 (1970) a hearing constitutes execution of the

warrant and that therefore a hearing could be denied to prevent

automatic sentence concurrency. If petitioner is constitutionally

entitled to a hearing, the statute must be reinterpreted. See Jones

v. Johnston, supra, slip op. n.40 at 33; Cleveland v. Ciccone,

supra, 517 F.2d at 1087.

D. A Morrissey hearing is required.

Since the disposition portion of the revocation

hearing may seriously abrogate a parolee’s liberty

interests, it should be conducted “at a meaningful time

and in a meaningful manner.” Armstrong v. Manzo, 380

U.S. 545, 552 (1965). Morrissey dictates both the

procedure (408 U.S. at 489) and the timing (408 U.S. at

488) of the hearing. Contrary to Morrissey, in this case

there was no hearing. The record shows that petitioner

wrote to the Board requesting execution of the warrant

and, in response, received only a letter saying that he

would be taken into custody at the end of his intervening

sentence.2? If under Board procedure a hearing were

granted at that time [former 28 C.F.R. §2.55 (1975)},

eight years after petitioner’s request,?! the hearing

0Under former 28 C.F.R. §2.53(a) and its predecessor, the

Board should have conducted a dispositional review of a parolee’s

case when he requested a decision. There is no indication that such

a record review (see United States ex rel. Hahn v. Revis, supra, 520

F.2d at 638) was made here. Moreover, a record review does not

comply with due process standards of Morrissey.

Under the rules, the Board also had the power to grant a discre-

tionary dispositional interview. However, it did not do so here.

What is more, a discretionary hearing does not comply with due

process. Coe v. Armour Fertilizer Works, supra, 237 U.S. at 424;

Cleveland v. Ciccone, supra, 517 F.2d at 1088-1089.

IThe record shows that petitioner’s request was made some

time during 1972; the decision was rendered on October 18,

1972. Since Morrissey requirements are not retroactive (Morrissey

v. Brewer, supra, 408 U.S. at 490), petitioner’s right to a hearing

must be deemed to have accrued at least within a reasonable

time after Morrissey.

would be too late to protect petitioner’s liberty. It

would not cure the harm caused by the denial of

participation in prison rehabilitative programs or the

deprivations of an improper prison classification. These

are irremediable after the intervening sentence has been

served.

Moreover, when the intervening sentence ends the

Board loses the intermediate option of revoking parole

but permitting some time of the two terms to run

concurrently, for the language of neither former 28

C.F.R. §2.53 (1975) nor former 28 C.F.R. §2.55(c)

(1975) authorized the Board to grant partially retro-

active concurrent sentences. Therefore, a hearing held at

the end of the intervening sentence cannot cure the

substantial losses produced by delay.

Postponement of the hearing is also destructive of

the petitioners ability to show that he _ merits

withdrawal of the warrant altogether so that good time

and street time credit are not forfeited. Mitigation

evidence the parolee might have gathered earlier

becomes stale and unpersuasive.”” The ineffectiveness

of such evidence is highlighted by changes in personal

relationships which necessarily result from the parolee’s

incarceration. Helpful evidence not previously obtained

may be forever lost by the delay. Witnesses may

become unavailable or uninterested many years later.

Furthermore, a delay in the hearing will render

ineffective the Morrissey requirement of disclosure to

~The record does not reveal whether petitioner was notified

about oi had any knowledge of his right to present written

evidence in mitigation to the Board. If he was not notified of his

opportunity to present such evidence, the Board’s actions

deprived him even of the minimal procedures granted.

the parolee pf the evidence against him,” for after the

lapse of time he may be unable to respond to errors,

inaccuracies, or incompleteness in the Board’s records.

Mathews vy. Eldridge, 96 Sup. Ct. 896, 908 (February 24,

1976). These problems, caused by the delay, leave

petitioner’s liberty interests unprotected.”

Under Morrissey, the hearing must not only be

timely, but the parolee must be present. Presence is

significant for the parolee may not be aware of matters

in which the examiner has an interest or about which

he wishes to make inquiry. Compare Mathews v. Eldridge,

supra, 96 Sup.Ct. at 907-908. Thus, a face-to-face

>The Board’s usual procedure is to make a record review of

all documents at its disposal [Parole Form H-6, H-3(a)] ; affidavit

of United States Board of Parole Chairman Maurice Sigler quoted

in Jones vy. Johnston, supra, slip op at 4, n.4; Gagnon ».

Scarpelli, supra, 411 U.S. at 784, n.8; Johnson, Federal Parole

Procedures, 25 Admin. L. Rev. 459, 487-489, 509-513 (1972).

*The Board has asserted that a delay in the hearing is

necessary so that information about the parolee’s prison conduct

can be obtained and perhaps influence a favorable disposition.

See Reese v. United States Board of Parole, supra; Orr v. Saxbe,

supra. However, the Board’s ability to consider the prison

behavior and record of the parolee was not impaired by provision

of a timely hearing. Under former 28 C.F.R. §2.53(c) (1975),

the Board had the institution record made available to it on an

annual basis and, even if an unfavorable decision was initially

made, the Board could reopen the case for further consideration

based on the prison record. Former 28 C.F.R. §2.28 (1975);

Jones v. Johnston, slip op. at 19, 25; see also Wolff v.

McDonnell, supra, 418 U.S. at 560-561. If the parolee desires to

have the Board postpone the hearing in order to consider his

prison record, he should be permitted this choice by his waiver

of a timely due process proceeding. However, his right to 2

hearing should not be denied him on this premise.

meeting is necessary so that the parolee can focus his

responses to the inquiries of the examiner. Moreover, the

evidence presented by the parolee relating to his conduct,

activities, and reputation, will inevitably raise questions

of credibility and demeanor. If the parolee cannot

produce specific factual information, either through his

own testimony or otherwise, to support his position, his

credibility is weakened. United States ex rel. Hahn y.

Revis, supra, 520 F.2d at 639.

The Morrissey hearing held early during the interven-

ing sentence should not cause financial or administrative

burdens which outweigh the due process requirements.

Gagnon v. Scarpelli, supra, 411 U.S. at 782 n.5. Indeed,

where, as here, the parolee is in a Federal institution,

there is minimal added burden. The Board or its

examiners regularly sit at each institution, and cases

such as petitioner’s can be added to the docket and

heard by the examiners present.

Moreover, the division of the Board into a minimum

of five regions (18 U.S.C. §4203(a)(2), 90 Stat. 220)

and the power to delegate authority to conduct

hearings to local Federal executive and judicial officers

(18 U.S.C. §4203(c)(3), 90 Stat. 220) offers the Board

sufficient flexibility to arrange such procedures as are

necessary.

E. Petitioner is entitled to dismissal of the

warrant if he has been prejudiced by the

delay, or alternatively to a prompt parole

hearing.

Petitioner was entitled to a parole revocation hearing

within a reasonable period after Morrissey or after his

request for disposition, whichever came later. Since no

parole revocation hearing has been granted, petitioner is

entitled to a hearing in the district court to determine

whether he was prejudiced by the denial of the parole

hearing. If he establishes prejudice, the writ of habeas

corpus should issue. Alternatively, he should be given a

prompt revocation hearing. Furthermore, to the extent

that the time which remains to be served on petitioner’s

intervening sentence is less than the time owed on his

original sentence, petitioner has been _ irretrievably

denied the opportunity to serve the two sentences

concurrently. Therefore, the Board should be directed

to give him credit for that portion of his term

regardless of the Board’s decision since he was denied a

fair opportunity to obtain his concurrency at the earlier

date.

CONCLUSION

For the above-stated reasons, the order and judgment

of the court below should be reversed.

Respectfully submitted,