The opinion of the court was delivered by: FOLLMER
Lloyd Miles Washington is presently a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, and has made application, in forma pauperis, for a writ of habeas corpus.
The issue raised in his original petition will be discussed first. While on parole under a Federal sentence he was arrested, tried and convicted in the State court on a charge of armed robbery and sentence was suspended, whereupon the United States Board of Parole revoked his parole and recommitted him as a parole violator under such Federal sentence. He seeks to attack the State conviction. His contention is that his arrest and the search and seizure in connection therewith by State officers were unlawful and that, therefore, the revocation of the parole by the United States Board of Parole was unlawful.
While violation of parole is not limited to the commission of a crime and conviction therefor,
even assuming that the revocation in the instant case was predicated solely upon the conviction in the State court, the validity of such conviction could not be questioned in this habeas corpus proceeding. His attempted attack on the State sentence is in effect a contention of insufficiency of the evidence to sustain the conviction. This would not in any event have been the subject of a habeas corpus proceeding in this Court.
He is not presently serving the State sentence and whatever remedies he might have in reference to such State sentence must be by application to the State courts.
Prior to the hearing, petitioner filed a supplement to his petition raising the basic contention that he was entitled to representation by counsel at his parole violation hearing and that he was denied that right by the Parole Board. At the hearing he contended that he did not know he had such right and that he was not so advised by the Board.
The matter of the right to be represented by counsel at Parole Board revocation hearings was brought into focus in Fleming v. Tate, 1946, 81 U.S.App.D.C. 205, 156 F.2d 848, 849. That case held that under the old District of Columbia parole statute (24 D.C.Code, § 206) the language 'he 'shall be given an opportunity to appear before the said Board" meant that a parole violator had the right to be represented by counsel in his appearance before the Board. This holding was subsequently, to wit, July 17, 1947, codified in the District of Columbia Code, 61 Stat. 379, 24 D.C.Code § 206, in pertinent part as follows: sk10'Sec. 6. When a prisoner has been retaken upon a warrant issued by the Board of Parole, he shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board. At such hearing he may be represented by counsel. * * *'
The pertinent Federal statute, 18 U.S.C. § 4207, June 25, 1948, provides, in part, as follows:
'A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.
'The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.'
In Moore v. Reid, 1957, 100 U.S.App.D.C. 373, 246 F.2d 654, the Court of Appeals for the District of Columbia expanded its opinion in Fleming by holding that the prisoner does not waive this statutory privilege to appear with counsel and to present testimony when he is not advised that he has it.
It will be noted that the Federal statute quoted above was enacted approximately one year after the above cited codification of the District of Columbia Code.
The provisions of the old District of Columbia Code and the old Federal statute with relation to revocation hearings were substantially the same from 1932 until the Fleming case in 1946. Then with relation to the District of Columbia statute there followed the codification of its Code in 1947, and then the Moore case. The codification of the District of Columbia Code in 1947 and the amendment to the Federal statute in 1948 were in pari materia with the exception that the District of Columbia statute had this additional phrase, 'at such hearing he may be represented by counsel.' Over a period in excess of fifty years
the operation of the parole procedure under the two statutes developed marked disparities,
of which the matter of 'personal representation' is one. It is inconceivable to believe that this difference is merely accidental or unintentional.
The distinction between the District of Columbia statute involved in Fleming and the Federal statute was recognized in Hiatt v. Compagna, 5 Cir., 1949, 178 F.2d 42, 46, affirmed by an equally divided Court in 340 U.S. 880, 71 S. Ct. 192, 95 L. Ed. 639 as follows:
'* * * Congress, in revising the parole law, Revised Title 18, Sec. 4207, changed the wording to read: 'A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before the Board, a member thereof or an examiner designated by the Board.' This change cuts deeply into the idea that the appearance is to be a trial. An examiner may conduct it now, and it would seem that the taking of the testimony of the prisoner, and perhaps his witnesses, is alone contemplated. * * *'
The court in Fleming, supra, said: 'The question is one of statutory construction. No constitutional right is involved, ...