Opposition Brief — Patuxent Institution Board of Review v. Hancock

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— ———— LO _ I iin ~ e e - - ee

No. 92-1933

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner

Vv.

CLARENCE J. HANCOCK,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

RESPONDENT’S BRIEF IN OPPOSITION

Joseph B. Tetrault

Emily M. Rody

Stuart R. Cohen*

Legal Aid Bureau, Inc.

500 E. Lexington Street

Baltimore, Maryland 21202

(410) 539-5340

Attorneys for Respondent

*Counsel of record

QUESTION PRESENTED

Petitioner has conceded and the Court of Appeals of Maryland

has found that Clarence J. Hancock was paroled by the Patuxent

Institution Board of Review on August 8, 1990. Immediately upon

paroling Mr. Hancock, Patuxent began the process of revoking his

parole based on events that occurred long before the grant of

parole. The Board of Review revoked Mr. Hancock’s parole based

on a claim that he had "failed to comply with the instructions and

directives of his therapist [and] he has thwarted the purpose and

mission of the [Patuxent] Institution." This case thus presents

the following question:

Can Maryland lawfully revoke Mr. Hancock’s parole without

prior notice to him prohibiting the conduct which was the basis for

the alleged violation?

TABLE OF CONTENTS

QUESTION PRESENTED . . «© «© «© © «© «© «© © © © «© «@ oe © © © © oo ok

TABLE OF AUTHORITIES . . «© © © © © © © © © © © © © © © © © he ohhh

STATEMENT OF THE CASE. . «© « «© «© © © © © © © © © © © © © © © oo ol

REASONS WHY THE

PETITION SHOULD BE DENIED

Neither The Decision

Below Nor The Record

Raises The First Question

Presented In The Petition

As Mr. Hancock Was Paroled,

Not Merely Promised

wt) es a a a

The Second Question Presented

In The Petition Does Not

Warrant Review By This Court

Because It Is Beyond Dispute

That A Parolee Is Entitled To

Notice Of The Conditions Of

Parole Prior To Revocation

For Allegedly Violating A

Derenm Geeeeeme 464 «see th eth hh hl hl hUc hc ll. SU

CienGs «6 6 64 466 & 6s % 610 © oe 6 6S Ulu hlUhhlUr he? eh hUhlC Um

APPENDIX. « © «© © © © © © © © © © © © © © © © © © 0 el wl ew ABEs l

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TABLE OF AUTHORITIES

CASES

Arciniega v. Freeman, 404 U.S. 4 (1971) .~. . «© «© «© «© «© © «© «© © ell

Benboe v. State, 738 P.2d 356 (Alaska App. 1987) .... . 212,13

Bovie v. City of Columbia, 378 U.S. 347 (1964). ...... .8,13

Bryant v. State, 848 F.2d 492 (4th Cir. 1988). . . .« « « « « «6,7

Connally v. General Construction Co.,

269 UsBe 385 (1926) 7 . *. . * 7 o . . . 7 . . . 7 . . . + i Pe

Douglas _v. Buder, 412 U.S. 430 (1973) .~ « « « « « « « «© « « 08,11

Forsyth v. City of Hammond, 166 U.S. 506 (1897) ....... .15

Gluckstern v. Sutton, 319 Md. 634, 574 A.2d 898,

cert. denied sub nom. Henneberry v. Sutton,

498 UeBO< 950 (1990) . . . . . 7 . o 7 . . . o o + . o eo * en

Grayson vy. Harris, 267 U.S. 352 (1925) . . «© «© © e © © © © @ © of

Patuxent v. Hancock,

329 Md. 556, 620 A.2d 917 (1993). . « « « «© «© © © © o© © opassin

Houston Oil Co. v. Goodrich, 245 U.S. 440 (1918) . ...... 4

Ingrassia v. Purkett, 985 F.2d 987 (8th Cir. 1993) ...... .7

Inmates of Orient Correctional Institute v. Ohio State

Adult Parole Authority, 929 F.2d 233 (6th Cir. 1991)... . .7

yvago Ve Van Curen, 454 0.8. 14 (1981). o . e e * = ° . - o4,5,6,8

Johnson v. Pennsylvania Board of Probation and Parole,

110 Pa. Comma. 42, 532 A.@d@ 50 (1987) . «ce «eee eevee §

Lanzetta v. New Jersey, 306 U.S. 451 (1939) . . . «. «© «© « « « 214

Morrissey v. Brewer, 408 U.S. 471 (1972) . . . 2... ©5,7,9

Mullane v. Central Hanover Bank & Trust Co.,

339 see 306 (1950). .* . * . . o 7. . — . . ~ . * * * o ° 14

Murray v. Swenson,

is a eS ee ae ee

Southern Power Co. v. North Carolina Public Service Co.,

263 0.8. 508 (i926) . «= e ee eeveseeeeee ee @

State v. Mace, 154 Vt. 430, 578 A.2d 104 (1990)... .

Swan v. State, 200 Md. 420, 90 A.2d 690 (1952) ... .

Winters v. Solem, 444 N.W.2d 722 (S.D. 1989). .... .

United States v. Dane, 570 F.2d 840 (9th Cir. 1977),

cert. denied, 436 U.S. 959 (1978) . . « « « « «

United States v. Johnston, 268 U.S. 220 (1925) ... .

United States v. Williams, U.S. P

aia &. CO. i733 (i992) ». «© «© 2 2

STATUTES

Md. Ann. Code, Art. 31B (1957, 1990 Repl. Vol.).

Md. Ann. Code, Art. 41, §4-501 et seq.

(1957, 1990 Repl. Vol. & 1992 Cum. Supp.)

RULE

Supreme Court Rule 15.

TREATISE

Cohen, Neil P. & Gobert, James J.,

The Law of Probation and Parole,

(1983 & 1992 Cum. Supp.)

» 4p @

-4,5,6,7

-1l

No. 92-1933

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

PATUXENT INSTITUTION BOARD OF REVIEW,

Petitioner

Vv.

CLARENCE J. HANCOCK,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Clarence J. Hancock, by his attorneys and pursuant

to Supreme Court Rule 15, respectfully requests that this Court

deny the Petition for Writ of Certiorari which seeks to review the

judgment of the Court of Appeals of Maryland. The opinion below,

Patuxent v. Hancock, is reported at 329 Md. 556, 620 A.2d 917.

STATEMENT OF THE CASE

Clarence J. Hancock was convicted of murder and other offenses

by the Circuit Court for Prince George’s County, Maryland. He was

sentenced in 1976 to a term of life imprisonment followed by a

consecutive determinate term of years. Id. at 562, 620 A.2d at

920. There is no dispute that he has been a model prisoner. Since

his incarceration he has neither broken any law nor been charged

with violating any prison disciplinary rule. Id. at 589, 620 A.2d

at 933. He was admitted to the Patuxent Institution in 1977 and

his progress in rehabilitation resulted in work-release status,

school-release, and both accompanied and unaccompanied leaves. Id.

at 562-63, 620 A.2d at 920. He attended college, worked as a copy

machine repairer, and remarried. Petitioner here, the Patuxent

Institution Board of Review, voted to recommend Mr. Hancock for

parole in 1987, but the Governor of Maryland denied the request.

Id., 620 A.2d at 920-21.

On July 24, 1990, the Circuit Court for Baltimore City,

Maryland, granted Mr. Hancock’s petition for a writ of habeas

corpus and ordered his release on parole, Petition for Writ of

Certiorari, Appendix ({"App.") at 129a-134a, unless "[Mr. Hancock]

has committed a new offense or if he has violated a major

disciplinary rule of the [Patuxent] Institution." Id. at 132a.

The basis for the Circuit Court’s decision was the opinion of the

Court of Appeals of Maryland in Gluckstern v. Sutton, 319 Md. 634,

574 A.2d 898, cert. denied sub nom. Henneberry v. Sutton, 498 U.S.

950 (1990).

No appeal was taken from the Circuit Court for Baltimore

City’s ruling. Rather, the Board of Review paroled Mr. Hancock.

As soon as Mr. Hancock had signed the Order of Parole, App. at

122a-124a, Patuxent Institution served him with a parole revocation

warrant and notice of a preliminary hearing. Patuxent immediately

found probable cause to believe that Mr. Hancock had violated the

terms and conditions of parole. 329 Md. at 567, 620 A.2d at 922.

Patuxent kept Mr. Hancock in prison pending a formal parole

revocation hearing. The Board officially revoked Mr. Hancock’s

parole, stating as its rationale “that Mr. Hancock has failed to

comply with the instructions and directives of his therapist [and]

he has thwarted the purpose and mission of the [Patuxent] Insti-

tution." App. at 120a. The terms and conditions listed in Mr.

Hancock’s parole order, id. at 123a-128a, did not require Mr.

Hancock to attend therapy.

Mr. Hancock appealed the parole revocation decision to the

Circuit Court for Howard County, Maryland, which affirmed the Board

of Review. Id. at 113a-115a. The Court of Special Appeals of

Maryland, however, reversed the Circuit Court for Howard County.

Id. at 97a. The Court of Appeals of Maryland granted certiorari

and affirmed the decision of the intermediate appellate court with

some modification. The Court of Appeals found that due process had

been denied Mr. Hancock by revoking parole based on noncriminal

behavior without first putting Mr. Hancock on notice that such

behavior would in fact be a parole violation. 329 Md. at 582, 620

A.2d at 930. The Court of Appeals stated: "So far as this record

reveals, the respondent was first notified of the conditions of his

parole at the same time that he was informed that he violated one

of them." Id. at 589, 620 A.2d at 933. The Court of Appeals also

found, h«se. on state law, that the Board of Review was estopped

from asserting that Mr. Hancock was now ineligible for parole by

its failure to appeal the decision of the Circuit Court for

Baltimore City. Id. at 587-88, 591, 620 A.2d at 932-33, 934-35.

While three judges dissented, they did so on state law grounds.

Id. at 592-99, 620 A.2d at 935-38.

Chief Justice Rehnquist, sitting as Circuit Judge for the

United States Court of Appeals for the Fourth Circuit, denied the

Board’s application for a stay of the mandate of the Court of

Appeals of Maryland. App. at la.

REASONS WHY THE PETITION SHOULD BE DENIED

l. Neither the decision below nor the record raises the first

question presented in the Petition as Mr. Hancock was paroled, not

merely promised parole in the future.

The first question presented by Patuxent raises an alleged

conflict between the decision below and Jago v. Van Curen, 454 U.S.

14 (1981). The question presumes, however, that Mr. Hancock was

never accorded the rights and privileges of a parolee because he

was not immediately released from prison. The Court of Appeals of

Maryland has found the facts to be otherwise. Mr. Hancock’s parole

was effective August 8, 1990. 329 Md. at 565, 586, 620 A.2d at

921, 932. Indeed, Petitioner has previously admitted that it

paroled Mr. Hancock. Id. at 591, 620 A.2d at 934. The United

States Supreme Court does not exercise jurisdiction simply to

review state court findings of fact. See Grayson v. Harris, 267

U.S. 352, 358 (1925). See also Southern Power Co. v. North

Carolina Public Service Co., 263 U.S. 508, 509 (1924); Houston Oil

Co. v. Goodrich, 245 U.S. 440, 441 (1918). Since it is conceded by

the Board of Review and confirmed by the Court of Appeals that Mr.

Hancock was paroled pursuant to Md. Ann. Code, Art. 31B, on August

8, 1990, Jago is inapposite and Morrissey v. Brewer, 408 U.S. 471

(1972), governs the process due Mr. Hancock.

In Jago, the prisoner was notified by the Ohio Adult Parole

Authority that he would be granted parole “on or after" a future

date. 454 U.S. at 14. Prior to release, the Authority determined

that the prisoner had lied on his parole application. Id. at 15.

The question before this Court wes whether the Authority's decision

to rescind its previous promise to grant parole required the due

process protections of a parole revocation proceeding. Under Ohio

law, the Authority’s right to rescind a parole order before its

effective date was well settled. Id. at 22-23 (Blackmun, J.,

concurring in the result). This Court found that due process

protections do not extend to “mutually explicit understandings"

xetween prisoners and prison officials. Id. at 18-19.

The contrast between Jago and the decision below cannot be

more clear. The Board of Review did not grant parole effective at

a later date but instead paroled Mr. Hancock effective August 8,

1990, the day he received and signed the Order of Parole. Under

Maryland law, parole is effected once the parolee signs the Order

of Parole acknowledging the terms and conditions of release. 329

Md. at 575, 620 A.2d at 926. See also Murray v. Swenson, 196 Md.

222, 229, 76 A.2d 150, 153 (1950) (prisoner may accept or reject

conditions of parole). Unlike in Jago, Mr. Hancock committed no

fraud to obtain parole. 329 Md. at 581, 620 A.2d at 929. Under

the Patuxent statute, Md. Ann. Code, Art. 31B (1957, 1990 Repl.

Vol.), Mr. Hancock’s Order of Parole created a protected liberty

interest in retaining parole which could not be abrogated by

Patuxent without due process of law. What occurred below under

Maryland law was a parole revocation hearing, plain and simple. It

was a parole revocation hearing without the constitutionally

required notice to the parolee of the terms and conditions of

parole. The Board’s actions following the grant of parole on

August 8, 1990, were not the administrative rescission of a

decision to recommend parole at a future date as in Jago, but

rather a violation of Mr. Hancock’s right to be apprised of the

conditions of his existing parole so that he could maintain his

liberty.

Nor is the decision below in conflict with the other opinions

cited by Petitioner.

The Board’s citation of Bryant v. State, 848 F.2d 492 (4th

Cir. 1988), for the contention that the Patuxent Institution

statute creates no protected liberty interest in retaining parole

status, Petition for Writ of Certiorari at 24, is disingenuous. It

was the predecessor of the Maryland Parole Commission statute, Md.

Ann. Code, Art. 41, §4-501 et seg. (1957, 1990 Repl. Vol. & 1992

Cum. Supp.), not the Patuxent Institution statute, Art. 31B, that

was the subject of interpretation by the United States Court of

Appeals for the Fourth Circuit. This is evidenced by the opinion

of tne United States District Court for the District of Maryland,

a copy of which is appended hereto. That decision, the subject of

the appeal in Bryant, clearly involves the Parole Commission

statute, not the Patuxent Institution statute. See Apx. at 7-8.

The Board of Review is well aware that the Maryland Parole

Commission is separate and distinct from the Patuxent Institution

Board of Review under Maryland law. Mr. Hancock’s parole was

granted pursuant to Art. 31B, §l11l, not Art. 41, §4-506. The

paroling authorities are completely independent of each other.

Furthermore, Bryant concerns the expectancy of parole, not an

actual parole and the constitutional protections surrounding parole

revocation required by Morrissey, supra.

Petitioner fares no better with the other authorities cited in

support of its allegation of a conflict between the decision below

and the decisions of other courts, as those opinions do not address

the claims of a parolee such as Mr. Hancock, who is entitled to the

protections required by Morrissey, supra.

In Ingrassia v. Purkett, 985 F.2d 987 (8th Cir. 1993), the

prisoner’s wife was allegedly advised by the chairperson of the

Missouri Board of Pardon and Parole that the Board "intended to

parole Ingrassia in May of 1983, upon his continued good conduct

and participation in. . . training." Id. at 988. The Eighth

Circuit found that neither these statements nor the prisoner’s

participation in training ripened the mere expectancy of parole

into a constitutionally protected liberty interest. Id.

In Inmates of Orient Correctional Institute v. Ohio State

Adult Parole Authority, 929 F.2d 233 (6th Cir. 1991), prisoners who

received “on or after” parole dates subject to the approval of an

acceptable out-of-prison placement plan, id. at 234, challenged the

rescission of their “on or after" dates after placement became

difficult. Relying on Jago, supra, the Sixth Circuit found that

Ohio law created no protected liberty interest in the expectancy of

parole.

In Winters v. Solem, 444 N.W.2d 722 (S.D. 1989), the

unexecuted grant of parole was expressly made conditional on a

subsequent event. In Johnson v. Pennsylvania Board of Probation

and Parole, 110 Pa. Commw. 42, 532 A.2d 50 (1987), the prisoner

never attained the status of a parolee under Pennsylvania law.

To summarize, because Mr. Hancock was paroled pursuant to

Maryland law, the decision below is not in conflict with the

decisions of this Court, the federal courts of appeal, or decisions

of other state courts, and the first question presented in the

Petition is not properly before the Court.

2. The second question presented in the Petition does not warrant

review by this Court because it is beyond dispute that a parolee is

entitled to notice of the conditions of parole prior to revocation

for allegedly violating a parole condition.

Comceding, as it must, that Mr. Hancock had a protected

liberty interest in retaining his parole status created by Maryland

law, the Board of Review claims authority to revoke parole without

informing the parolee of what he or she must do to comply with the

terms and conditions of parole. Petition for Writ of Certiorari at

25-32. Petitioner asserts that this Court has never decided this

issue. Id. at 25, 27. But see Douglas v. Buder, 412 U.S. 430, 432

(1973) (per curiam) (due process requires that probationer receive

fair warning that certain types of conduct may lead to revocation)

(relying upon Bouie v. City of Columbia, 378 U.S. 347 (1964)).

The holding of the Court of Appeals of Maryland is consistent

with precedent and unexceptionable:

Because the conduct on the basis of

which the revocation was premised

was not criminal -- the petitioner

has conceded that the respondent has

not violated any state or federal

law or municipal ordinance -- and

did not constitute an institutional

infraction, i.e., it was not the

institutional equivalent of criminal

conduct, we hold that the

respondent’s parole was improperly

revoked, he not’ having’ been

notified, in advance, of the

condition allegedly violated. Both

common sense and due process demands

this result.

329 Md. at 589, 620 A.2d at 933.

The Court of Appeals found the following facts in support of

its holding:

[T]he respondent’s parole agreement

did not contain any condition that

he attend therapy, nor was the

respondent made aware that his

progress or, more accurately, Dr.

Farrell’s perception of his

progress, in therapy was an actual

condition of parole which, if vio-

lated, would result in loss of

liberty.

Id. at 589-90, 620 A.2d at 933-34.

As stated in Morrissey v. Brewer, 408 U.S. 471, 482 (1972),

“[t]he parolee has relied on at least an implicit promise that

parole will be revoked only if he fails to live up to the parole

conditions." This Court’s statement clearly means that the parolee

is entitled to know the parole conditions prior to any attempt at

revocation for noncriminal conduct, which is all the decision below

holds.

The Board of Review asserts that this Court should grant

certiorari to determine whether “the Constitution is so rigid that

in order to revoke the parole of an individual who currently

presents a risk to society, prison officials must have anticipated

and imposed specific parole conditions for all conduct that

manifests this dangerousness." Petition for Writ of Certiorari at

31-32. Again, the factual premise upon which Petitioner attempts

to construct this purported dilemma is lacking in the record. No

fact-finder, neither the Board of Review nor the Maryland courts,

has ever found that Mr. Hancock was a "danger" or "risk" to

society. See, e.g., App. at ll6a-12la (no finding by Board of

danger to society). There is no objective and concrete evidence of

conduct on the part of Mr. Hancock since the beginning of his

incarceration that could possibly be construed as either a parole

violation or as manifesting a menace to himself or others. Mr.

Hancock received accompanied leaves to the community in 1984. 329

Md. at 562, 620 A.2d at 920. In 1985, he progressed to work-

release and school-release status. Id. at 562-63, 620 A.2d at 920.

In 1986, Mr. Hancock received permission to leave the prison

without being accompanied by prison authorities. Id. at 563, 620

A.2d at 920. In its letter to the Governor of Maryland of February

5, 1988, recommending Mr. Hancock for parole, Patuxent stated that

Mr. Hancock was not a danger to society. Mr. Hancock is in fact

now working and contributing to his community. Without evidence of

= 10 -

a parole violation or any fact-finding of dangerousness, Patuxent’s

attempt at parole revocation cannot stand. See Douglas v. Buder,

supra, 412 U.S. at 432 (finding of probation violation so devoid of

evidentiary support as to be invalid under Due Process Clause);

Arciniega v. Freeman, 404 U.S. 4 (1971) (per curiam) (no satis-

factory evidence of parole violation in record).

"As a matter of both constitutional law and common sense,

probationers and parolees can reasonably be expected to follow only

those probation conditions of which they are aware." Cohen, Neil

P. & Gobert, James J., The Law of Probation and Parole, §5.04, at

193 (1983 & 1992 Cum. Supp.) (citing United States v. Dane, 570

F.2d 840 (9th Cir. 1977), cert. denied, 436 U.S. 959 (1978)).

Patuxent’s reliance upon this treatise to support its contention

that lower courts need guidance in the area of the law encompassed

by the second question presented, Petition for Writ of Certiorari

at 27, is misleading. The authors of the treatise, at the section

cited in the Petition, are discussing ambiguous or vague conditions

of parole or probation, not the constitutionally required notice of

those conditions which must be given to the parolee or probationer.

While the Court of Special Appeals of Maryland, in an alternative

holding, found the condition allegedly violated by Mr. Hancock

“vague, uncertain, and indefinite,” App. at 109a, the Court of

Appeals oI Maryland expressly declined to reach this issue because

it held that no notice of the condition was given to Mr. Hancock.

See 329 Md. at 590 n.18, 620 A.2d at 934. Because the Court of

Appeals of Maryland expressly declined to pass upon the vagueness

-lle-

of the parole condition allegedly violated, that issue is not now

before the Court. If the question was not passed upon below,

certiorari should not be granted on the issue. See United States

v. Williams, U.S. , , 112 S. Ct. 1735, 1738 (1992).

Contrary to the Board’s assertion, the lower courts are in no need

of guidance on the issue of whether a parolee should be informed in

advance of what he or she must do to stay on parole.

Nor is there any conflict between the decision below and those

of other courts on the issue raised by the second question in the

Petition. Patuxent cites Benboe v. State, 738 P.2d 356 (Alaska

App. 1987), and State v. Mace, 154 Vt. 430, 578 A.2d 104 (1990), as

conflicting authorities on this point. Petition for Writ of

Certiorari at 28. These decisions, however, neither conflict with

each other nor with the decision below. In Mace, the defendant’s

probation agreement, which the defendant signed prior to the

occurrence of the conduct giving rise to the citation for probation

violation, explicitly required that he “attend, participate, and

complete" a specified therapeutic regimen. 154 vt. at 432, 578

A.2d at 105. The terms and conditions of Mr. Hancock’s parole,

App. at 123a-128a, contain no requirement that he attend therapy.

In Mace, the basis for the violation occurred after the defendant

had been apprised of the condition allegedly violated. 154 Vt. at

432, 578 A.2d at 105. In the instant case, the facts as found by

the Maryland courts are otherwise. Mr. Hancock was not “notified,

in advance, of the condition allegedly violated." 329 Md. at 589,

620 A.2d at 933. In Benboe, the condition allegedly violated was

- 12 «

found not to be an actual condition of probation. 738 P.2d at 360.

In the alternative, the court found that the defendant had not

violated the condition. Id. at 362. In short, Benboe is not in

conflict with Mace, and Mace is not in conflict with the decision

below.

The Board of Review asserts that “[t]jhe facts surrounding

respondent’s incarceration and parole in this case demonstrate that

he was on fair notice that his failure to fully participate in

therapy could lead to the revocation of his parole." Petition for

Writ of Certiorari at 28-29. The Maryland courts, however, have

found the facts to be otherwise. See 329 Md. at 589, 620 A.2d at

933 ("So far as this record reveals, the respondent was first

notified of the conditions of his parole at the same time he was

informed that he violated one of them."). This Court does not

grant certiorari "to review evidence and discuss specific facts."

United States v. Johnston, 268 U.S. 220, 227 (1925).

"It is an essential component of due process that individuals

be given fair warning of those acts that may lead to a loss of

liberty." United States v. Dane, 570 F.2d 840, 843 (9th Cir.

1977), cert. denied, 436 U.S. 959 (1978) (citing Bouie v. City of

Columbia, 378 U.S. 347 (1964); Connally v. General Construction

Co., 269 U.S. 385 (1926)). "“[W]here the proscribed acts are not

criminal, due process mandates that the petitioner cannot be

subjected to a forfeiture of his liberty for those acts unless he

is given prior fair warning.” Dane, 570 F.2d at 844. That is the

holding of the Court of Appeals of Maryland. This holding is

- 13 <

unremarkable. It is based primarily on a construction of Maryland

law and arises out of a singular set of circumstances whereby the

Board of Review paroled Mr. Hancock pursuant to an order of the

Circuit Court for Baltimore City rather than appealing that court’s

decision. The Board is now attempting to “excuse its own

omission," 329 Md. at 585, 620 A.2d at 931, to follow Maryland’s

rules of appellate practice.

Maryland has long followed this principle:

A parolee is not expected or

required at once to achieve

perfection. If his conduct is that

of the ordinary well-behaved person,

with no more lapses than all people

have, with no serious offenses

charged against him, and with no

indication that he intends in the

future to pursue the course which

led to his original conviction, the

courts and probation officers should

not seek for unusual and irrelevant

grounds upon which to deprive him of

his freedom.

Swan v. State, 200 Md. 420, 430, 90 A.2d 690, 695 (1952). When the

Patuxent Institution Board of Review departed from this principle,

its actions were reversed by the Maryland courts.

The holding of the Court of Appeals of Maryland is plainly

correct. "All are entitled to be informed of what the State

commands or forbids." Lanzetta v. New Jersey, 306 U.S. 451, 453

(1939). “[{W]jhen notice is a person’s due, process which is a mere

gesture is not due process." Mullane v. Central Hanover Bank &

Trust Co., 339 U.S. 306, 315 (1950).

As the factual scenario that gave rise to the decision below

is highly unlikely to recur in Maryland or elsewhere, and as there

- 14 <-

is no conflict with decisions of the federal courts or state courts

of last resort, there is no need for the exercise of this Court’s

discretionary jurisdiction. See Forsyth v. City of H ond, 166

U.S. 506, 514-15 (1897).

CONCLUSION

For these reasons, Respondent prays that this Court deny the

Petition for Writ of Certiorari and grant to the Respondent such

other and further relief as the nature of his cause may require.

an PSV ae '

Joseph B. Tetrault

-

VELL Ll oty,

Stuart R. Cohen*

Attorneys for Respondent

Legal Aid Bureau, Inc.

500 East Lexington Street

Baltimore, Maryland 21202

Telephone: (410) 539-5340

*Counsel of Record

» 1§ -

APPENDIX

A copy of the opinion of the United States District Court for

the District of Maryland in Bryant v. State of Maryland, Civil No.

M-86-2568 (Oct. 3, 1986) (unreported), is appended to the

Respondent’s Brief in Opposition to demonstrate that’ the

Petitioner’s reliance upon Bryant v. State, 848 F.2d 492 (4th Cir.

1988), to argue that a conflict exists between the decision below

and a decision of the United States Court of Appeals for the Fourth

Circuit, Petition for Writ of Certiorari at 24, is misleading.

Both the District Court and the Fourth Circuit construed the

Maryland Parole Commission statute, not the Patuxent Institution

statute. Respondent was paroled pursuant to the Patuxent

Institution statute, Md. Ann. Code, Art. 31B (1957, 1990 Repl.

Vol.).

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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

BILLIE AUSTIN BRYANT :

Vv. : CIVIL ACTION NO. M-86-2568

STATE OF MARYLAND :

MEMORANDUM AND ORDER

Billie Austin Bryant, petitioner, acting pro ge, seeks

federal habeas corpus relief in relation to his imprisonment

as a result of his conviction of bank robbery in the Circuit

Court for Prince George's County on April 14, 1969 for which

he received a 20-year sentence. Petitioner asserts four

grounds for review: 1) the indictment upon which he was

convicted was amended the day of trial; 2) he was denied

an appeal from an unfavorable decision in a post-conviction

proceeding and was denied a request for an attorney to perfect

such appeal; 3) he was denied counsel and an evidentiary

hearing in a second post-conviction proceeding after which

he was denied an appeal or counsel to perfect such appeal;

and 4) he was denied a parole hearing on his Maryland sentence.

It appearing that the petitioner has exhausted his

state remedies the court will examine whether petitioner's

claims merit issuing service.

I. The Amended Indictment

Petitioner alleges that his due process rights under

the Fifth and Fourteenth Amendments were violated when the

prosecutor was allowed to amend the indictment on the day

of trial to change the name of the person robbed in the

bank from Jack Hay, the manager, to Betty Mosely, the clerk,

and to change the dollar amount involved from $3,500 to

$1,000 (Transcript of Proceedings, Attached to Complaint,

at 3-6).

The sufficiency of an indictment is generally not subject

to challenge in habeas corpus proceedings unless a defect

in the indictment would strip the trial court of jurisdiction.

Woolsey v. Best, 299 U.S. 1 (1936). An indictment misleading

the defendant as to the charge, however, might be grounds

for habeas corpus relief. Snead v. Smyth, 273 F.2d 838,

840-41 (4th Cir. 1959); see also Hayes v, Peyton, 364 F.2d

303 (4th Cir.), cert. denied, 385 U.S. 981 (1966). An indictment

is sufficient if it contains elements of the offense charged,

fairly informs the defendant of the charge against which

he must defend, and enables him to plead judgment as a bar

to future prosecutions for the same offense. Hamling v. United

States, 418 U.S. 87, 117-18 (1974); United States yv, Previti,

644 F.2d 318 (4th Cir. 1981). The Fourth Circuit has likewise

held that a superseding indictment on the eve of trial did not

deprive the defendant of a fair trial where defendant was given

fair notice of the charge. Wnited States v. Diamond, 561

F.2d 557 (4th Cir. 1977). ws

In the transcript submitted by petitioner, it appears

that his attorney admitted that he had been told a month

before trial that Betty Mosely was the person robbed. If

there was any error in allowing the amendment, which the

court believes there was not, it was not of the type which

would strip the trial court of its jurisdiction to hear

the case nor of sufficient gravity to deny due process to

the petitioner.

Ground I of the Petition will be dismissed,

II. Right to Counsel for Appeal of a Post-Conviction Hearing

Petitioner alleges that he was denied effective assistance

of counsel in violation of the Sixth and Fourteenth Amendments

when he was not appointed an attorney to perfect appeals

to the Court of Special Appeals after two post-conviction

hearings.

Based upon due process and equal protection rights,

convicted indigents are entitled to be represented by counsel

on their first appeal. Ross vy. Moffitt, 417 U.S. 600, 611

(1974); Douglas v. California, 372 U.S. 353, 357 (1963).

This right does not extend to the process of seeking

additional, discretionary appeals. Rogs, 417 U.S. at 615.

Once, through the assistance of counsel, a record is established

on the appeal as of right, sufficient record is available

— APX. 4 ean

for the higher court to review and consider whether or not

to hear the discretionary appeal. [qd.

Md. Ann. Code art. 27, § 645A states, in pertinent

part:

"(a) Right to institute proceeding to set aside

- Any person convicted of

a crime and either incarcerated under sentence

of death or imprisonment or on parole or probation,

including any person confined or on parole or

probation as a result of a proceeding before the

District Court who claims that the sentence or

judgment was imposed in violation of the Constitution

of the United States or the Constitution or laws

of this State, or that the court was without juris-

diction to impose the sentence, or that the sentence

exceeds the maximum authorized by law, or that

the sentence is otherwise subject to collateral

attack upon any ground of alleged error which

would otherwise be available under a writ of habeas

corpus, writ of coram nobis, or other common-law

Or statutory remedy, may institute a proceeding

under this subtitle in the circuit court for the

county or the Criminal Court of Baltimore to set

aside or correct the sentence, provided the alleged

error has not been previousiy and finally litigated

Or waived in the proceedings resulting in the

conviction, or in any other proceeding that the

petitioner has taken to secure relief from his

conviction.

The statute establishes a right to appeal certain issues

not waived or previously and finally litigated to the circuit

court in the appropriate jurisdiction. Assuming, arguendo,

that the issues involved in petitioner's two post-conviction

hearings were not previously and finally litigated, the

proceedings in the circuit court would constitute petitioner's

"first appeal of right." Under Ross _v. Moffitt, petitioner

is not entitled to assistance of an attorney to perfect

a discretionary appeal therefrom. 417 U.S. 615.

APX. 5

Ground II of the petition will be dismissed.

Petitioner claims that he was not appointed counsel

at his second post-conviction proceeding. The record submitted,

however, indicates otherwise. The Qpinion and Order of

Court labeled Group Exhibit "B" states: "The State's Attorney

withdrew his motion, and counsel then proceeded to argue

the merits of the petition.” (Group Exhibit B at 1). Also,

copies were sent by the court to the Office of the Public

Defender. (Ig. at 4).

An evidentiary hearing is required on a first petition

under Maryland's Uniform Post Conviction Procedure Act,

but not on a subsequent petition. Rule 4-406(a), Md. Rules

of Procedure. The issue decided in petitioner's second

post-conviction proceeding was "does the setting aside of

a sentence which a consecutive sentence is to succeed have

the effect of causing the consecutive sentence to run from

the date of its imposition?" (Group Exhibit B at 2). There

was no need to present factual evidence. Moreover, the

Opinion reflects that there was a hearing, during which

counsel argued the merits of the petition. Petitioner could

have put on any evidence at that time.

Ground III of the petition will be dismissed.

IV. Parole Letter

Petitioner claims he was denied due process and equal

protection by the failure of the Attorney General to respond

to his letter requesting a parole hearing.

Petitioner did not raise this issue in either a post-

conviction proceeding or in a complaint to the Inmate Grievance

Commission. However, claims not directly or indirectly

challenging the validity of the conviction are not cognizable

under Maryland post-conviction proceedings. Knox v. Director.

Patuxent Institution, 1 Md. App. 678, 680 (1967). Claims

such as petitioner's would be governed by the Inmate Grievance

Commission, except that petitioner is not a "person confined

to an institution within the Division of Correction, or

otherwise in the custody of the Commission of Correction,

or confined to the Patuxent Institution." Md. Ann. Code

art. 41, § 204F(d). It would seem, therefore, that petitioner

has no state remedy to exhaust.

Mere existence of a parole system does not give an

inmate sufficient parole expectation to require the state

to accord him a level of due process protection similar

to that for parole revocation proceedings. Greenholtz v. Inmates

of Nebraska Penal and Correctional Complex, 442 U.S. 1, 8-10

(1979); Wetzel v. Edwards, 635 F.2d 283 (4th Cir. 1980).

The extent, if any, of a prisoner's legitimate expectation

of parole depends on the structure of the state statute.

Greenholtz, 442 U.S. at 11-12. In Greenholtz, the Supreme

Court accepted the argument that a Nebraska statute, which

provided that the parole board "shall" order the prisoner's

APX. 7

release unless certain conditions are established, provided

some expectation of parole release. [d. at 12. The Maryland

statute has no such provision. The matters to be considered

at a parole hearing in Maryland are as follows:

"Each hearing examiner and Commission member

determining if an inmate is suitable for release

on parole shall consider:

(1) The circumstances surrounding the crime;

(2) The physical, mental, and moral qualification

of the inmate eligible for parole;

(3) The progress of the inmate during his con-

finement;

(4) Whether or not there is reasonable probability

that the inmate, if released on parole, will remain

at liberty without violating the law; and

(5) Whether or not release on parole of the

inmate is compatible with the welfare of society."

Md. Ann. Code art. 41, § 112 (1976).

Section 112 does not contain language comparable to

the mandatory language of the Nebraska statute sufficient

to give an inmate a legitimate expectation of release.

Therefore, petitioner has no right to be afforded due process

protection.

Petitioner has stated no facts in Ground IV to support

any equal protection argument either. Ground IV, therefore,

will be dismissed.

Accordingly, it is this 2 es day of October, 1986,

by the United States District Court for the District of

Maryland, ORDERED:

1) That leave to proceed jp forma pauperis is

hereby GRANTED.

2) That petitioner's complaint is hereby DISMISSED,

pursuant to 28 U.S.C. § 1915(d), as frivolous.

3) That the Clerk mail a copy of this Memorandum

and Order to the petitioner, Billie Austin Bryant, #93746-131,

P. O. Box 1000, Marion, Illinois 62959, and to the United

States Attorney for the District of Maryland.

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;

Viner 02 | ~

ane ) James R. MiNér, Jr. |

/ nited States District Judge \

Certificate of Service

I HEREBY CERTIFY that on this (otf aay of August, 1993, three

copies of the foregoing Respondent’s Brief in Opposition were

mailed, postage prepaid, to Andrew H. Baida and Carmen M. Shepard,

Assistant Attorneys General and counsel for Petitioner, 200 St.

Paul Place, 20th Floor, Baltimore, aca 21202.

TI ff

aad hz

Stuart R. Cohen

dam/8779