We turn now to a consideration of the remedial action requested by the petitioners.
Each petitioner seeks one of three remedies; namely:
(1) An order quashing the detainer. Such an order, of course, would effectively preclude any imposition by the Board of petitioners' original, unexpired sentences.
(2) An order requiring the Board to hold a speedy parole revocation hearing meeting the standards prescribed by Morrissey v. Brewer, supra. If that course is followed, "the parole board has a wide choice of dispositional alternatives," Shelton v. United States Board of Parole, 128 U.S. App. D.C. 311, 319, 388 F.2d 567, 575 (1967). It may, as Shelton delineates: (a) withdraw the detainer, thus wiping out any allegation of parole violation; or (b) revoke parole, thereby causing the unexpired portion of the original sentence to run concurrently with the intervening sentence; or (c) continue the detainer, thus withholding revocation until the intervening sentence has been completed. This latter alternative usually results in the serving of consecutive sentences: i.e., the intervening sentence is followed by service of the unexpired sentence. Id.8
(3) An order requiring the Board to run concurrently the intervening and unexpired sentences, thus complying with, it is asserted, the instructions of the sentencing judges who in fact imposed such sentences.
The Board's authority to issue warrants and lodge detainers is wholly statutory. See 18 U.S.C. § 4205 (1970). To implement its authority, the Board has promulgated certain regulations. 28 C.F.R. § 2.40 (1973). It is well settled that the Board is vested with discretionary power. Zerbst v. Kidwell, 304 U.S. 359, 58 S. Ct. 872, 82 L. Ed. 1399 (1938); Shelton v. United States Board of Parole, supra. That discretion, however, is not "immune from judicial overview." Id. Cf. Hyser v. Reed, 115 U.S. App. D.C. 254, 269, 318 F.2d 225, 240 (1963).
We look first to the claim embodied in the third alternative, supra, that the Board of Parole has usurped the power of the sentencing judge by preventing the intervening and unexpired sentences from running concurrently. However, the case law will not support such an assertion and under the doctrine of stare decisis we are constrained to hold to the contrary. Tippitt v. Wood, 78 U.S. App. D.C. 332, 140 F.2d 689 (1944); Hammerer v. Huff, 71 App. D.C. 246, 110 F.2d 113 (1939). See also Cox v. Feldkamp, 438 F.2d 1, 3 (5th Cir. 1971); Edwards v. United States, 422 F.2d 856, 858 (6th Cir. 1970); Moore v. Smith, 412 F.2d 720, 724 (7th Cir. 1969); Mock v. U.S. Board of Parole, 120 U.S. App. D.C. 248, 250, 345 F.2d 737, 739 (1965) (Fahy, J.).
Cf. Zerbst v. Kidwell, supra ; Noll v. Board of Parole for the District of Columbia, 89 U.S. App. D.C. 206, 191 F.2d 653 (1951) (Bazelon, J.).
In Tippitt, as in the instant case, the petitioner had committed a criminal offense while on parole from a previous conviction. For the new offense, the district court imposed a sentence that required the intervening sentence and the unexpired portion of the original sentence to run concurrently with each other. The appellate court in Tippitt, however, ruled the sentence invalid and held that the sentencing judge had no power to make the intervening sentence run concurrently with the original, unexpired sentence or, moreover, to tell the Board how it must act in light of the intervening sentence. 78 U.S. App. D.C. at 335, 140 F.2d at 692.
In Hammerer, on similar facts, the court held that the "trial judge in imposing the second sentence had no power to cause it and the unexpired portion of the first sentence to run concurrently." 71 App. D.C. at 249, 110 F.2d at 116.
And in Cox v. Feldkamp, supra, 438 F.2d at 3, the court held:
The Parole Board has the administrative power to decide whether or not to allow a sentence for an offense committed while on parole to run concurrent with time to be served on parole violation. The power of the Board is exclusive. (Citation omitted.)
Accordingly, the Court denies relief under petitioners' third request, supra.
The first alternative, however, has more merit. For it is now beyond peradventure that, consistent with due process, a parolee must be accorded a final hearing within a reasonable time after he has been taken into custody to determine whether he has, in fact, violated his parole conditions and whether his parole should be revoked. Morrissey v. Brewer, supra ; Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Shelton v. United States Board of Parole, supra, 128 U.S. App. D.C. at 318, 388 F.2d at 574.
The opinion in Morrissey was handed down June 29, 1972. Each petitioner herein received his intervening sentence for a criminal conviction arising out of criminal conduct while on parole status, in either July or August 1972. To date none of these petitioners has been tendered a final parole revocation hearing as required by Morrissey. When the Court in Morrissey suggested that a two month delay between the hearing date and the date the parolee is taken into custody might be reasonable, 408 U.S. at 488, 92 S. Ct. at 2604, it left little room for doubt that a delay of over one and one-half years, as in this case, would be unjustified, and it follows that "it is now too late for (respondents) to cure (their) error by affording (petitioners) a revocation hearing." Sutherland v. District of Columbia Board of Parole, supra, 366 F. Supp. at 272.
The respondents would distinguish the instant case from Morrissey by limiting the latter solely to its own facts, which did not deal with a parolee in custody by reason of a criminal conviction. However, that the Court was mindful of such a parolee is indicated by a remark made in the course of delineating the limits of the due process hearing: "Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime." 408 U.S. at 490, 92 S. Ct. at 2605. To this Court the plain import of that language is that the mandate of a prompt, final revocation hearing is not obviated, but only that the content of such a hearing might be altered, by the fact of a conviction while on parole. For instance, the first-stage preliminary hearing required by Morrissey would surely be met by the fact of the intervening conviction and sentence. But according to Morrissey, there would have to be a second-stage final hearing in all cases and within a reasonable time to satisfy due process.
In view of the above, then, it seems clear that the Board no longer has any discretion as to whether to grant a prompt parole revocation hearing. Such discretion as is lodged in the Board is related to what disposition to make in each case after and as a result of the hearing. But there must be a final hearing.
As noted above the facts of this case indicate that the Board did not tender such hearings to these petitioners within a reasonable time after they were taken into custody. The detainers and warrants must be quashed.
Petitioners also seek to have their suit certified as a class action under Fed. R. Civ. P. 23 and Local Rule 1-13(b). They claim relief for two alleged classes, namely, (1) all prison inmates who have unexecuted parole violator warrants issued by the United States Board of Parole pending against them; and (2) all persons subject to Policy 5000.
The Court is of the opinion that class relief in the fact situation here presented is inappropriate and must be denied. As to the first proposed class, it is too broad to be considered in a habeas context which invariably requires consideration of facts unique to the individual seeking the writ and consequently deprives that individual of standing as a representative of a proposed class. We need only point out for example, in the instant case, that the relief granted to the individual petitioners, conditioned as it is upon their significant contacts with this forum and other individual considerations, see Part III supra, cannot be made available to all prison inmates against whom parole violator warrants have been lodged, if for no other reason than that this Court cannot extend its territorial habeas jurisdiction to reach all such persons. Further, as an example of the inappropriateness of class treatment in the context of the particular case, absent a holding that Morrissey is to be applied retroactively -- a question this Court is not called upon to, and does not, decide -- those prisoners as to whom a detainer was lodged prior to Morrissey are clearly not in the same class as these petitioners whose detainers were updated after Morrissey.
As to the second proposed class, i.e., those inmates subject to the provisions of Policy 5000, see note 1 supra. The question has been mooted.
Accordingly, it is this 13th day of March, 1974,
Ordered that the unexecuted parole violator warrant lodged against the petitioner Fitzgerald by reason of his conviction in this Court in Criminal Case No. 71-1044 be, and the same is hereby, quashed; and it is
Further ordered that the unexecuted parole violator warrant lodged against petitioner Kelley by reason of his conviction in Superior Court Criminal Case No. 16534-72A and his conviction in this Court in Criminal Case No. 72-1102 be, and the same is hereby, quashed; and it is
Further ordered that the unexecuted parole violator warrant lodged against petitioner Byrd by reason of his conviction in this Court in Criminal Case No. 72-34 be, and the same is hereby, quashed; and it is
Further ordered that the respondent Strickland shall withdraw from the petitioners' files the detainers lodged against them as a result of the foregoing unexecuted parole violator warrants; and it is
Further ordered that the amended petition for a writ of habeas corpus be, and the same is hereby, dismissed as to respondent Jackson, and the order to show cause be, and the same is hereby, discharged as to him; and it is
Further ordered that the motion to certify this action as a class action pursuant to Fed. R. Civ. P. 23 be, and the same is hereby, denied.