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FITZGERALD v. SIGLER

March 13, 1974

Edward J. FITZGERALD et al., Petitioners,
v.
Maurice J. SIGLER et al., Respondents


Corcoran, District Judge.


The opinion of the court was delivered by: CORCORAN

CORCORAN, District Judge.

I

 This action is before the Court on petitioners' amended petitions for writs of habeas corpus and mandamus. Jurisdiction is premised upon 28 U.S.C. §§ 2241 and 1361, respectively.

 Each petitioner is an inmate at the District of Columbia Correctional Complex at Lorton, Virginia; each is incarcerated there pursuant to a sentence imposed by a judge of this Court; and each has lodged against him a detainer from the United States Board of Parole based upon an unexecuted parole violator warrant.

 The respondents are the members of the United States Board of Parole (the Board), the Parole Executive of the Board (Johnston), the Director of District of Columbia Department of Corrections (Jackson), and the Superintendent (warden) of the Lorton Correctional Complex (Strickland).

 Petitioners seek a declaration that they have been denied their rights to a speedy parole revocation hearing in contravention of the due process clause of the Fifth Amendment to the Federal Constitution and the recent Supreme Court pronouncements of Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). Further petitioners move this Court to issue an order quashing their parole violator warrants and discharging them from future custody pursuant to such warrants, or, alternatively, ordering the respondent Board to hold speedy parole revocation hearings.

 The failure to grant them a speedy parole revocation hearing, according to the petitioners, affects them adversely in two important respects:

 (1) In the case of each petitioner the sentencing judge in this Court ordered the sentence imposed by him to run concurrently with any other sentence being served by the petitioner. The petitioners allege that by deferring action on the parole violation warrant and thus deferring the running of the original unexpired sentence until completion of the intervening sentence imposed by this Court, the Board is causing the unexpired sentence to run consecutively to the intervening sentence imposed by a judge of this Court, thus frustrating the clear intention of that sentencing judge; and

 (2) the petitioners assert that because the detainers have been placed against them the District of Columbia prison officials arbitrarily deny them access to certain rehabilitative programs, in violation of the requirements of due process and equal protection.

 Pursuant to Fed. R. Civ. P. 23, the petitioners seek to have their suit declared a class action on behalf of two classes: (1) all prison inmates who have unexecuted parole violator warrants issued by the respondent Board of Parole and pending against them; and (2) all inmates at Lorton who have detainers lodged against them, and who are therefore subject to a so-called Policy 5000 of the District of Columbia Department of Corrections, which, in petitioners' view, arbitrarily denies them the opportunity to participate in rehabilitative programs. *fn1"

 II

 We look first at the status of each petitioner.

 A. Fitzgerald

 Petitioner Fitzgerald is presently serving a sentence entered August 31, 1972, of from 3 to 12 years for a robbery conviction in the United States District Court for the District of Columbia. This sentence was stated to "run concurrently with any other sentence that you might be exposed to."

 Previously, in November, 1963, Fitzgerald had been convicted of bank robbery in the United States District Court for the Middle District of Pennsylvania. In that case he was sentenced to a term of 10 years, but was released after serving 7 years and 1 month on mandatory good-time release pursuant to 18 U.S.C. § 4164, as if paroled. On July 27, 1970, the respondent Board issued a parole violator warrant alleging that Fitzgerald had failed to report for supervision.

 After his arrest on the charge which led to his 1972 robbery conviction in this Court, the warrant was lodged as a detainer against him and was updated to include the allegation of committing an offense while on parole. Since the 1972 conviction and sentencing in this Court, the detainer has remained lodged against Fitzgerald. There was a dispositional review *fn2" of his case, following which the Board decided to allow the detainer to stand without further action. Fitzgerald was notified that action would be taken on the detainer at the time he is taken into custody as a federal violator when released from his present incarceration.

 B. Kelley

 Petitioner Kelley is presently serving a sentence of from 3 to 15 years imposed by the United States District Court for the District of Columbia on August 8, 1972, after conviction for armed robbery. The sentencing judge directed that the sentence was to run concurrently with any other sentence then being served.

 Kelley had previously been convicted on January 21, 1963, of armed robbery of a post office in the United States District Court for the Eastern District of Missouri, and sentenced to a term of 25 years. After serving eight years of that sentence, Kelly was released on parole on June 3, 1971.

 On June 23, 1972, Kelley was convicted in the Superior Court of the District of Columbia of attempted robbery and sentenced to a term of 1 to 3 years.

 On July 7, 1972, a parole violator warrant was lodged against Kelley as a detainer by the Board. It was based upon the conviction of attempted robbery in Superior Court and the pending armed robbery charge in this Court, supra. Since August, 1972, the detainer, now based on the two convictions in this and the Superior Court has remained lodged against Kelley at Lorton. Following dispositional review *fn3" of the case, the Board decided to allow the detainer to stand and, as in the case of Fitzgerald, notified Kelley that action would be taken on the detainer at the time he is taken into custody as a federal violator when released from his present incarceration.

 C. Byrd

 Petitioner Byrd is presently serving a sentence of from 4 to 20 years imposed for an armed robbery conviction entered July 6, 1972, in the United States District Court for the District of Columbia. This sentence was to ...


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