James L. Heezen, Appellant, v. L. E. Daggett, Warden, Federal Correctional Institution, Appellee, 442 F.2d 1002 (8th Cir. 1971)

This is an appeal from the denial of James L. Heezen's petition for a writ of habeas corpus under 28 U.S.C. § 2255. We affirm.

Heezen was convicted in United States District Court for the District of South Dakota of interstate transportation of a stolen vehicle and sentenced to a four year term. He commenced service of his sentence on July 6, 1966 and was admitted to parole on May 29, 1968.

In March of 1970 Heezen was taken into custody in Sioux Falls, South Dakota under a warrant charging violation of the terms of his parole.¹  He then signed a Department of Justice form requesting "a local revocation hearing near the place of my alleged violation in order that, at my own expense, I may arrange for the services of an attorney and/or the appearance of voluntary witnesses to present testimony in my behalf bearing upon one or more of the parole or mandatory-release violations charged. I deny that I violated any of the conditions of my release, and also deny that I have been convicted of a law violation while under supervision." Heezen's petition for writ of habeas corpus fails to disclose whether or not he did retain counsel in Sioux Falls, South Dakota and alleges that he was sent to the Federal Correctional Institution at Sandstone, Minnesota on May 16, 1970.² 

Heezen's brief filed with his petition acknowledges that a parole revocation hearing was held at the Sandstone, Minnesota Federal Correctional Institution on August 3, 1970, four and one-half months after he was taken into custody and prior to the filing of his petition for a writ of habeas corpus. He makes no allegations that the hearing was unfair or that it was not conducted properly except to allege that he was denied the assistance of counsel.

Heezen claims that he was entitled to a local revocation hearing prior to his return to the Sandstone Federal Correctional Institution under 18 U.S.C. § 4207;³  that he was entitled to counsel at his revocation hearing;⁴  and that the denial of a local revocation hearing and the denial of counsel constitute a deprivation of due process of law.

Under the Parole Board Directive set forth in footnote 3, Heezen was entitled to a local revocation hearing once he requested it, "in order to facilitate retention of counsel or the production of witnesses." Heezen alleges he was kept in Sioux Falls, South Dakota for a period of almost two months, but the record is unclear as to whether or not he actually did retain counsel and why no local revocation hearing was granted.

Assuming, however, that Heezen should have been given a local revocation hearing with or without counsel, the delay in granting the parole revocation hearing would not render the hearing a nullity. The granting of the hearing on August 3, 1970 (prior to the time this petition for habeas corpus was filed) ended the delay and made custody thereafter lawful. Cotner v. United States, 409 F.2d 853, 857 (10th Cir. 1969); Weaver v. Markley, 332 F.2d 34, 36 (7th Cir. 1964); United States ex rel. Buono v. Kenton, 287 F.2d 534, 536 (2nd Cir.), cert. denied, 368 U.S. 846, 82 S. Ct. 75, 7 L. Ed. 2d 44 (1961).

Petitioner complains of his lack of appointed counsel at the requested local revocation hearing and at the hearing which was actually held on August 3, 1970. However, in neither case was it necessary that he be furnished court appointed counsel.

The general rule is well established that due process does not require appointment of counsel at parole revocation hearings for indigent federal parolees.⁵  In Hyser v. Reed, 115 U.S. App.D.C. 254, 318 F.2d 225, 238 (En Banc), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S. Ct. 447, 11 L. Ed. 2d 316 (1963), Judge (now Chief Justice) Burger said:

"We hold due process does not require that indigent parolees be provided with appointed counsel when they appear before the Parole Board in revocation proceedings."

The Fourth Circuit adopted this rule in a slightly modified form in Jones v. Rivers, 338 F.2d 862, 874 (4th Cir. 1964) where it said:

"So long as that judgment is fairly and honestly exercised, a judgment which is subject to judicial review, we think there is no place for re- quired counsel representation in the matter of parole revocation."

See also Boddie v. Weakley, 356 F.2d 242, 243 (4th Cir. 1966).

For the reasons set forth above, the judgment of the trial court is affirmed.