BARRETT, Circuit Judge.
Jim Dean Barton (Barton) appeals the dismissal with prejudice of his petition for writ of habeas corpus. Barton is presently incarcerated in the New Mexico State Penitentiary. Exhaustion of available state remedies is not at issue.
Barton was originally convicted of armed robbery by a New Mexico state court in November, 1965. Prior to sentencing, he escaped from the San Juan County, New Mexico, jail. After his recapture, Barton was sentenced to confinement in the state penitentiary for a period of not less than ten years nor more than fifty years on the armed robbery conviction. Barton's trial on the jail escape charge resulted in a verdict of guilty, and the imposition of a one to five year sentence.
In March, 1970, Barton was paroled, institutionally, from the armed robbery sentence. He then began serving the escape sentence. Parole from the escape sentence, and release to the community, was granted effective January 4, 1971. Barton was released to the community on January 17, 1971.
Sometime in November, 1971, Barton was asked to speak about conditions at the New Mexico State Penitentiary by a prison reform group known as Citizens Concerned About Corrections. Barton attended the meeting, held on November 10, 1971, at the University of New Mexico Law School in Albuquerque, after obtaining permission to leave Santa Fe County from his parole officer.
The speech caused various repercussions—foremost of which, according to Barton,
Following this revocation, Barton remained in the penitentiary until March, 1973, when he was reparoled. In February, 1974, Barton dropped out of classes at the College of Santa Fe, resigned from his employment and left the State of New Mexico. In April, 1974, Pennsylvania authorities detained Barton for extradition to New Mexico on the basis of a "Warrant for Paroled Prisoner". After lengthy extradition proceedings, he was returned to the New Mexico State Penitentiary as a parole violator on February 22, 1975. In March, 1975, a preliminary hearing was held on Barton's second parole revocation. The charges were failure to (1) obtain written permission before changing addresses or employment; (2) advise his parole officer of leaving employment; and, (3) submit monthly reports. Parole was revoked on March 26, 1974. He has been incarcerated continuously since that date. Barton has become eligible for parole, but has either been denied it or waived consideration of parole.
Barton filed his petition for habeas corpus relief in the District Court on December 23, 1976. He was represented by court appointed counsel and granted an evidentiary hearing. Central to his claims was the belief that the exercise of his First Amendment rights in criticizing the correctional system in New Mexico resulted in retaliation which ultimately led to his reincarceration. Specifically, Barton maintained that he was denied equal protection and due process of law (1) when the State of New Mexico selectively enforced its laws against him in retaliation for the exercise of his First Amendment right; (2) in the imposition and revocation of his parole; (3) in his extradition from Pennsylvania on a sentence which had already expired; and, (4) by the manner in which New Mexico computed his sentences. After a somewhat lengthy hearing, in which numerous witnesses were examined, the Magistrate assigned to the case filed proposed findings of fact and conclusions of law specifically treating each issue and generally concluding that:
In response to Barton's objections to the proposed findings and conclusions, the District Court conducted a de novo review as required by 28 U.S.C.A. § 636(b)(1). The Court adopted the findings and conclusions of the Magistrate, and dismissed the action with prejudice.
On appeal, Barton raises the same issues as those presented before the Magistrate and in the District Court: (1) impermissible selective enforcement by officials of the State of New Mexico; (2) due process of
Selective Enforcement Claims
Barton asserts that he was denied equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution, when officials of the State of New Mexico selectively enforced its laws against him. According to Barton,
Nearly a century ago, the Supreme Court recognized that the administration of justice "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances" violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Yick Wo v. Hopkins, 118 U.S. 356, 373-374, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886); Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446 (1962). Cf. Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976), Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954) (proscribing similar action on the part of the United States Government). To allow the revocation of a previously granted parole status on the basis of arbitrary or irrational factors would alter the parole systems's purpose of helping individuals reintegrate into society as constructive members of the community, to one fostering personal abuse of governmental power. See United States v. Torquato, 602 F.2d 564, 568 (3d Cir. 1979), cert. denied, 444 U.S. 941, 100 S.Ct. 295, 62 L.Ed.2d 307. The nature of the parole and probation system, however, requires that these limitations be applied only where necessary and where intrusion upon those officials' wide discretion is absolutely necessary. Federalism considerations demand this, where courts of the United States are called upon to determine delicate questions involving state decision making.
The "parole-revocation determination actually requires two decisions: whether the parolee in fact acted in violation of one or more conditions of his parole and whether the parolee should be recommitted either for his or society's benefits." Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 9, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979). "The first step in a revocation decision thus involves a wholly retrospective factual question." Morrissey v. Brewer, 408 U.S. 471, 479, 92 S.Ct. 2593, 2599, 33 L.Ed.2d 484
In order to support a claim of selective enforcement based on discriminatory revocation of parole, the petitioner must establish that (1) while others similarly situated have not generally been subjected to revocation proceedings because of the type of conduct forming the basis of the charges, he has been singled out for prosecution, and (2) the selection of the petitioner for revocation has been based on intentional, purposeful discrimination stemming from impermissible considerations such as race, religion, or the desire to prevent the exercise of other constitutionally secured rights. United States v. Torquato, supra; United States v. Kahl, 583 F.2d 1351 (5th Cir. 1978); United States v. Douglass, 579 F.2d 545 (9th Cir. 1978); United States v. Johnson, 577 F.2d 1304 (5th Cir. 1978); United States v. Arais, 575 F.2d 253 (9th Cir. 1978), cert. denied, 439 U.S. 868, 99 S.Ct. 196, 58 L.Ed.2d 179 (1978); United States v. Berrios, 501 F.2d 1207 (2d Cir. 1974); United States v. Berrigan, 482 F.2d 171 (3d Cir. 1973); United States v. Falk, 479 F.2d 616 (7th Cir. 1973) (en banc). The burden of proving such discrimination by a preponderance of the evidence falls clearly on the complaining party. United States v. Torquato, supra, at 569; United States v. Johnson, supra, at 1308. See also: Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
The "conscious exercise of some selectivity is not in itself a federal constitutional violation." Oyler v. Boles, supra; Cook v. City of Price, 566 F.2d 699 (10th Cir. 1977). Selective enforcement is not improper where the Government seeks to prosecute flagrant violations. Id. at 701. "Aggressively displaying one's antipathy to the . . . system or daring the Government to enforce it does not create immunity from, or a defense to, prosecution." United States v. Heilman, 614 F.2d 1133 (7th Cir. 1980), quoting, United States v. Stout, 601 F.2d 325, 328 (7th Cir. 1979), cert. denied, 444 U.S. 979, 100 S.Ct. 481, 62 L.Ed.2d 406; United States v. Catlett, 584 F.2d 864 (8th Cir. 1978); United States v. Johnson, supra.
Our review of the evidence adduced at the evidentiary hearing leads us to agree with the District Court that Barton failed to meet his burden of establishing that the revocation stemmed from intentional and purposeful discrimination. The Magistrate's findings and conclusions on this issue, as adopted by the District Court following a de novo review, state:
In accordance with rules 52(a) and 81(a)(2), Fed.Rules Civ. Proc., 28 U.S.C.A., we cannot set aside the District Court's findings of fact unless they are clearly erroneous. Serviss v. Moseley, 430 F.2d 1287 (10th Cir. 1970); United States ex rel. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977), cert. denied, Henne v. Fike, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 776 (1978). In order to conclude that these findings are clearly erroneous we must be "left with the definite and firm conviction that a mistake has been committed." Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123, 89 S.Ct. 1562, 1576, 23 L.Ed.2d 129 (1969), quoting, United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). In making this determination, we may look to both the direct and circumstantial evidence presented. Pate v. Wainwright, 607 F.2d 669 (5th Cir. 1979). Our function, however, is not to weigh conflicting evidence or to pass on the credibility of witnesses. Brown v. Crouse, 425 F.2d 305 (10th Cir. 1970).
One of the conditions of Barton's 1971 parole was: "1. You are required to have written permission of your parole officer before you may: (a) leave the State of New Mexico or the county to which you have been paroled. . . ." [R., Vol. VII]. As stated by the Supreme Court in Morrissey v. Brewer, supra, 408 U.S. at 477-478, 92 S.Ct. at 2598-2599,
The evidence is undisputed that in March, 1971, Barton violated two conditions of his parole—one, he left Santa Fe County without the permission of his parole officer, and, two, he associated with a known felon. Although a "Preliminary Violation Report" was submitted to the Director of Adult Probation and Parole, revocation at that time was not recommended. That recommendation was concurred in by the Director of Adult Probation and Parole. [R., Vol. III, p. 147]. In mid-November, 1971, Barton's parole officer began receiving "information from various collateral sources that Mr. Barton was frequenting certain liquor establishments, which was a violation of parole; also, that he was leaving the county without permission, which . . . would also amount to a violation of parole." [R., Vol. III, p. 158, 109]. As a result, parole supervision was intensified. [R., Vol. III, p. 158]. On the morning of the accident which ultimately led to the first revocation of parole, Barton's parole officer specifically discussed allegations made surrounding Barton's departure from the county without prior permission. Barton denied engaging in such actions. His parole officer, however, reminded him that he must have prior permission under the terms of his parole before leaving the county [R., Vol. III, p. 170]; and that failure to obtain such permission would result in revocation. [R., Vol. III, p. 177; R., Vol. VI, pp. 116-117]. That evening Barton was involved in the
The non-pretextual nature of Barton's parole revocation is apparent from the record. Although New Mexico parole officers are accorded wide discretion in dealing with parolees, "it was the understanding of each parole officer that each condition, in itself, could result in revocation should there be a violation, and each could stand on its own merits for purposes of the violation and revocation." [R., Vol. II, p. 113]. It was generally agreed that leaving the county without permission did not result in revocation [R., Vol. II, pp. 24, 114]. However, this was conditioned on a finding of "no previous violations that the officer was aware of, and . . . [a decision] . . . that the man could still be dealt with under parole supervision." [R., Vol. II, p. 114].
Barton's parole officer recommended revocation following the accident because "he [Barton] had already gotten a break before, when he left the county without permission and associated with Michael Martinez; and also the fact that that very morning he did leave the county without permission, and that very day he [was] involved in an auto accident outside the county." [R., Vol. III, p. 175]. Barton's parole officer expressed doubt that parole could be validly revoked as a result of public speeches given by a parolee [R., Vol. III, p. 154], and that, in any event, Barton's speech did not enter into his decision to recommend revocation of parole in 1972. [R., Vol. III, p. 178]. In his words, he "would have recommended a revocation of parole, even if there hadn't been these speeches." [R., Vol. III, p. 178]. A member of the Parole Board in 1972 agreed, and testified that Barton's parole was not revoked as a result of any public statements. [R., Vol. III, pp. 133-134]. Other supportive evidence was presented, e. g., R., Vol. IV, pp. 98-100.
Under these circumstances, we hold that the District Court did not err in finding that Barton's 1972 revocation was valid. While the evidence was conflicting, the entire record supports the District Court's determination on this issue.
Similarly, we hold that our review of the entire record supports the District Court's view that Barton's exercise of his First Amendment rights did not result in harassment during his second parole, in proceedings held in Pennsylvania, or in other ways.
Due Process in the Imposition and Revocation of Parole
Barton asserts that he was denied due process of law in the imposition and revocation of his parole by (a) the failure of the State to keep him properly informed of his parole conditions; (b) the revocation of his parole for violations of conditions no longer in effect; (c) denial of counsel at his parole revocation hearing; and, (d) denial of reasonable access to information prior to his revocation hearings, and other due process rights, identified in Morrissey v. Brewer, supra, and its progeny.
We first address Barton's contentions surrounding the conditions of his parole—that the failure to keep him informed as to changes in parole conditions denied him adequate notice of what conduct was required to maintain his status as a parolee. The argument is unconvincing.
The contentions surrounding this issue go only to Barton's second revocation of parole. That revocation was based on his failure to (1) obtain written permission before changing addresses or employment; (2) advise his parole officer of leaving employment; and, (3) submit monthly reports. These conditions of parole were imposed by Barton's original certificate of parole executed and acknowledged by him in March, 1973. [R., Vol. IV, pp. 15-16; 101-103; Certificate of Parole dated March 21, 1973, R., Vol. VIII].
The remaining contentions—denial of counsel, pre-revocation discovery, and other due process rights—will be treated jointly.
Barton's first parole revocation occurred in April, 1972, prior to the Supreme Court's decision in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Gagnon, supra, held that, in some circumstances, due process requires that an indigent parolee be appointed counsel at revocation proceedings. Barton requested appointment of counsel at his 1972 parole revocation hearing. Such representation was denied. He now claims that the failure to appoint counsel deprived him of due process of law under the Gagnon decision. This reliance is misplaced, inasmuch as Gagnon, supra, has not been applied retroactively. Wolff v. McDonnell, 418 U.S. 539, 574, 94 S.Ct. 2963, 2983, 41 L.Ed.2d 935 (1974).
At Barton's second revocation proceeding, which occurred in 1975, he was denied appointed counsel at both the preliminary and final stages. Gagnon clearly applies to these proceedings. In Gagnon, the Court stated:
In our view, however, this is not the type of case in which fundamental fairness demands appointment of counsel. The parole violations were admitted, and Barton was "capable of speaking effectively for himself." Id. at 791, 93 S.Ct. at p. 1764. Under such circumstances, we will not disturb the Parole Board's exercise of its discretion.
Barton next argues that he was deprived due process of law by New Mexico's failure to disclose the contents of his parole file prior to each revocation hearing. In Morrissey, supra, the Supreme Court held that the minimum requirements of due process require "disclosure to the parolee of evidence against him". Morrissey v. Brewer, supra, 408 U.S. at p. 489, 92 S.Ct. at p. 2604. We have reviewed the documents in question, as well as the evidence and arguments presented in the District Court, in specific relation to this issue. Our view accords with that of the District Court. The failure to disclose the parole file did not give rise to constitutional error.
Barton's final due process challenge centers around his right to a preliminary revocation hearing under Morrissey v. Brewer, supra. Morrissey, supra, normally requires that parolees be afforded reasonably prompt preliminary hearings following arrest in order to determine "whether there is probable cause or reasonable ground to believe that the arrested parolee has committed acts that would constitute a violation of parole conditions." Id. at 485, 92 S.Ct. at 2602.
On April 5, 1974, Barton's parole officer submitted a violation report alleging that Barton had violated three conditions of his parole by failing to obtain permission before changing his residence or employment, failing to advise his parole officer of leaving employment, and failing to report regularly. Acting on a warrant, Pennsylvania authorities detained Barton. He challenged extradition proceedings and was not returned to New Mexico until February 22, 1975. On March 4, 1975 a preliminary hearing on the revocation charges was held. Parole was revoked on March 26, 1975. Barton has been given credit towards his armed robbery sentence (No. 20406) for the period June 15, 1974 to February 22, 1975 (the extradition delay). [R., Vol. I, pp. 201, 210, 259].
In Chilembwe v. Wyrick, 574 F.2d 985 (8th Cir. 1978) (per curiam) similar claims were raised under almost identical facts. Chilembwe was arrested in Nevada for extradition to Missouri on a probation violation in October, 1974. He was not accorded a preliminary hearing at or near the time of his arrest. After lengthy extradition proceedings, Chilembwe was returned to Missouri in March, 1975. Probation was revoked on June 6, 1975, and a sentence of imprisonment executed. Responding to the contention that "he was denied due process of law because he did not receive a preliminary revocation hearing as required by . . Gagnon v. Scarpelli, 411 U.S. 778 [93 S.Ct. 1756, 36 L.Ed.2d 656] . . . (1973)," the Court stated:
We believe that the same rationale applies here. The violations which formed the basis of the second revocation of parole are susceptible to the same inference as Chilembwe's arrest outside Missouri.
Assuming, arguendo, that a preliminary hearing on Barton's revocation was required under the due process of law clause, release is nevertheless inappropriate. The record does not indicate that Barton was accorded a preliminary revocation hearing at or near the place of his arrest. As a remedy for such violation, Barton suggests release and termination of sentence.
Barton's present incarceration stems from a decision made after a final revocation hearing, adequate in all respects. Any denial of his right to a preliminary revocation hearing no longer bears on his incarceration. The extreme remedy of release is not justified under the facts of this case. Cf. United States v. Companion, 545 F.2d 308, 313 (2d Cir. 1976) (probationers).
We agree with Barton that the extradition proceedings held in Pennsylvania
We have considered Barton's assertions as to the manner in which his sentences have been computed. We agree with the District Court's ruling on these issues. See N.M.S.A. 40A-29-9 (1953 comp., recodified, N.M.S.A. 31-18-19 (1978 comp.); [R., Vol. I, p. 261].