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AGRESTI v. PARKER

June 21, 1968

Francis Anthony AGRESTI, Petitioner,
v.
Jacob J. PARKER, Warden, United States Penitentiary, Lewisburg, Pennsylvania, Respondent



The opinion of the court was delivered by: FOLLMER

 Francis Anthony Agresti, an inmate at the United States Penitentiary, Lewisburg, filed in this court a petition for a writ of habeas corpus on November 1, 1967. On November 3, 1967, the court issued a Rule on the warden of the said penitentiary to show cause why the writ should not be granted. A response and traverse were filed and a hearing was held before the court, at which petitioner was present and testified. In addition, both sides have submitted additional briefs.

 At the hearing counsel for petitioner presented, in substance, the narrow issue of whether the parole hearing held on September 13, 1967, was sufficiently timely to afford petitioner due process of law.

 Petitioner was confined in the Lewisburg Penitentiary on a five year sentence beginning March 2, 1962. After serving a part of that sentence, he was granted a mandatory release for statutory and earned good time on August 2, 1965. The release conditions were that petitioner was to remain under the jurisdiction of the United States Board of Parole, as if on parole, until the expiration of his maximum term of sentence, less one hundred and eighty days, or until September 2, 1966. Petitioner's maximum term of sentence would have expired on March 2, 1967.

 The violator's warrant, which was introduced into evidence, shows that petitioner was thereafter arrested in Maryland by the Maryland authorities on or about March 31, 1966, and charged with being an accessory to an armed robbery that occurred on March 27, 1966. The warrant application shows that the United States Board of Parole had listed two reasons for revoking petitioner's release. They were: (1) he was then charged with armed robbery in the State of Maryland, and (2) petitioner had associated with known felons.

 The warrant was lodged against petitioner while he was under the supervision of the Maryland authorities and was used as a detainer. The record also shows that petitioner was constantly under arrest by the Maryland authorities from March 31, 1966, until August 16, 1967, when he placed bond with the Maryland authorities and was released to the federal authorities. At that time the mandatory release warrant of the United States Board of Parole was executed by the arrest of petitioner. The following day he was afforded a preliminary interview by Probation Officer Kidder. After consulting with his attorney, he checked the block on the Board of Parole form indicating he had been convicted of the crime and did not wish a local revocation hearing. He was then transferred from Baltimore City Jail to the United States Penitentiary, Lewisburg, Pennsylvania, where he remains a prisoner. After his arrival at the penitentiary, on September 13, 1967, petitioner was afforded a revocation hearing. At that time he executed an Attorney-Witness Election Form stating that he wished to waive representation by counsel and the testimony of witnesses.

 Subsequent to his arrest, the petitioner was indicted on several charges in Maryland, two of which were being an accessory to an armed robbery and armed robbery. At trial, he was found guilty. Later on appeal, the judgment of conviction was reversed without remand.

 At the hearing before this court, Mr. Shore of the United States Board of Parole testified that in petitioner's case the Board of Parole had a right to hold a hearing immediately upon his arrest by the State of Maryland authorities, but the Board elected not to do so and instead used the violator's warrant as a detainer. He stated further that the Board elected to rely on the fact that they believed that petitioner would be found guilty of the charges pending against him in Maryland and that the parole would then be automatically revoked. Obviously, for that reason, the Board did not grant a reasonably prompt hearing close to the place of the parole violation on the second ground for revoking petitioner's parole, associating with known felons.

 Petitioner does not contend that the violation warrant was not timely issued.

 Petitioner correctly states the question presented to the court as follows:

 
When a probationer is arrested after release and the United States Probation Office cites him for a violation of his release agreement, and in such citation charges him with violating the law as well as violating the terms of his release (not necessarily a violation of the law), and the United States Probation Office refuses to grant a hearing on the non-law violation and instead waits for a determination of the law violation, and some seventeen months later the probationer is found not guilty of the law violation, may the United States Probation Office then contend it was not required to grant a reasonably prompt hearing on the alleged violation of the terms of the probation agreement?

 According to Mr. Shore's testimony, the Board of Parole had a right to hold a hearing immediately upon petitioner's arrest by the State of Maryland authorities, but the Board elected not to do so and instead used the violator's warrant as a detainer. Had the verdict of guilty in petitioner's case in the Maryland courts been sustained on appeal, the revocation of parole would have been automatic. In this case the Parole Board simply guessed wrong. Apparently the Board felt that the conviction would certainly be sustained and they refused a prompt hearing. The government argued that even though the Board did not grant a prompt hearing it should still be upheld in the revocation of the parole because the facts elicited at petitioner's trial in Maryland show that he was really guilty of a crime, but through inadvertent pleading by the State of Maryland, he was not convicted. This argument is not convincing.

 In a concurring opinion, Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 249 (1963), it is stated:

 
B. If the parolee denies the violation and has not been validly convicted of a crime which constitutes the violation, he must be given a suitable hearing to ...

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