By: Bob Williams

The United States Court of Appeals for the Tenth Circuit has invalidated Bureau of Prisons (BOP) community placement regulations as inconsistent with congressional intent. Florence (Colorado) Federal Correctional Institution Warden, Ron Wiley, appealed a 2006 habeas grant to federal prisoner Edward Wedelstedt for the invalidation of BOP regulations 28 C.F.R. §§ 570.20 and 570.21 as interpreted with 18 U.S.C. § 3621(b). The BOP was ordered by the District Court to consider Wedelstedt for Community Correctional Center (CCC) placement prior to the remaining ten percent of his sentence.

Wedelstedt received 13 months BOP incarceration after Texas convicted him in 2006 of the interstate transport of an obscene movie for sales and distribution and conspiracy to defraud the United States after paying an employee in cash. After the application of good-time credits his release date was set for May 9, 2007. He was notified that his transfer eligibility date for CCC placement was April 6, 2007, 33 days prior to his release which was ten percent of the balance of his sentence, in accordance with BOP procedure 28 C.F.R. §§ 570.20 and 570.21. Section 570.20(a) justified the regulation as a "categorical exercise of discretion for designating inmates...to community confinement ...

United States prisoner Randall Crisler appealed the revocation of his probation for violating it's conditions. The delayed revocation was ordered after his probation expired and his supervised release was ordered terminated by the appellate court.
Crisler was sentenced to three years of probation in New Mexico in 2003 for impersonating a government "officer or employee." A probation officer (PO) alleged that he breached one of his conditions on February 17, 2006, and sought judicial action. At a September 5, 2006, hearing the court did not revoke his probation but "held it in abeyance" for five months and added additional conditions. On February 27, 2007, a PO filed an amended petition for revocation reiterating previous violation and alleging additional violations on February 18, 2007. The petition, however, revealed that Crisler's probation had ended on February 17, 2007. At a subsequent hearing Crisler challenged the court's jurisdiction since his probation was over. The government argued that the September 5, 2006, hearing was still pending and the court still had jurisdiction. The court sentenced him to 90 days in prison and one year of supervised release. Crisler appealed.
On appeal, the United States Court of Appeals for the Tenth Circuit held that the ...

Illinois resident and retired Marine Timothy Finwall brought a 42 U.S.C. § 1983 action against the City of Chicago, two of its detectives and resident Mary Boswell for illegal, unethical and malicious prosecution. He was framed in 2001 for attempted child abduction but later acquitted. A jury awarded him just ...

California State prisoner Barry Hazle appealed his probation revocation for drug abuse violations that sent him to prison. His third revocation petition alleged violations occurring prior to his second. The court reversed the incarceration ruling.

Hazle pled guilty to methamphetamine possession in 2004. He received probation pursuant to the Substance Abuse and Crime Prevention Act of 2000 (Act). The Act was implemented to rehabilitate non violent drug offenders, curtail costly incarceration and save cell space for more serious offenders. It requires that unless a probationer or parolee poses a danger to others he is entitled reinstatement after a first drug based violation. After a second violation the offender is entitled to reinstatement if he is still amenable to treatment. On upon a third violation the court does have the discretion to intensify treatment or incarcerate the offender.

In November of 2004 a first revocation petition was filed. Hazle admitted the allegations. On May 20, 2005, a second petition was filed. Hazle denied those allegations. On May 27, 2005, a third petition was filed alleging violations occurring on May 19, 2005. The second and third petitions were consolidated and Hazle was sent to prison, despite his argument that the two should ...

California Mentally Disordered Offender (MDO) Roy Cobb, Jr., appealed a court order, imposed after his statutory release date, committing him to the state hospital. The order was affirmed because Cobb was put on notice prior to his release that his MDO status subjected him to treatment as a condition of parole.

Cobb was convicted of aggravated assault and was receiving treatment as a condition of parole at the Atascadero State Hospital in 2006. He was to be released on May 27, 2006. The prosecutor’s office petitioned to further commit him under Cal. Pen. Code § 2960, the Mentally Disordered Offender Act (Act), and a trial was set for April 24, 2006. Due to a series of extensions by the prosecution and the court, objected to by Cobb, the trial began on July 19, 2006, 25 days after his statutory release date. He was subsequently deemed "still" an MDO and committed for an additional year under the Act. Cobb appealed arguing that due process was, violated, the order was erroneous and that the court erred in not granting his motion to dismiss for timely hearing violation.

The Fourth District California Court of Appeal held that Cobb was aware of treatment requirement ...

Connecticut resident Christopher Russo appealed the dismissal of his 42 U.S.C. § 1983 action after being falsely arrested and imprisoned for over seven months. He was acquitted after police were forced to present exculpatory evidence. The ruling was partially vacated and the case remanded for a jury trial.

Russo was arrested and imprisoned for a Bridgeport Amoco Station robbery in 2002. Police doctored a photo of Russo for use in a photo line up by removing the body and enhancing his hair color. The attendant then positively identified Russo as the assailant. The station's video tape was hidden from prosecutors by a policeman. Russo repeatedly proclaimed his innocence and his requests to compare his tattoos with the perpetrator in the video were denied. 216 days later, upon demand by his attorney, a state attorney's office investigator acquired the tape and showed it to the prosecutor, who subsequently dropped all charges against Russo.

Russo brought a § 1983 action against the City and four policemen for false arrest and imprisonment. The district court granted summary judgment to the defendants, finding no constitutional violations, and also declined to entertain Russo’s state law claims. Russo appealed.

The U.S. Court of Appeals for the ...

California State resident Raul Ramirez sought production of documents pertaining to his unlawful arrest and prosecution of a crime he was subsequently acquitted. The documents were for use in his 42 U.S.C. § 1983 action and were ordered produced with a stipulated protective order.

Ramirez, a special education teacher, brought the action against Los Angeles County, it's
sheriff's department and detective Frank Bravo for false arrest, false imprisonment (ten
months) and emotional distress. This came after false information and testimony was used in
his arrest and prosecution for the kidnaping and attempted rape of a teenage girl. After
being acquitted, Ramirez's request for discovery documents pertaining to Bravo’s
departmental complaints and disciplinary actions since 1994 were denied as exempt work product. He motioned to compel the documents' production.

The U.S. District Court for the Central District of California held that Fed.R.Civ.P. 26(b)(5) requires that any withholding under such exemption be accompanied by a specific declaration describing the privacy interest being protected, how the production would be harmful, and why a protective order would be inappropriate. It was held that those procedures were not followed and further that the requested documents were relevant to Ramirez"s allegations and hence outweighed any legitimate ...

Pennsylvania state ex prisoner Hozay Royal appealed the 2004 dismissal of his 42 U.S.C. § 1983 action after being released six months past his mandatory release date. The dismissal was affirmed because the action was barred under Heck v. Humphrey, 512 US 477 (1994).

Royal's action came after Philadelphia County officials Robert Durison and Vivian Miller refused to recalculate his sentence to deduct his presentence confinement which caused six additional months of incarceration. Royal claimed due process violations and subjection to cruel and unusual punishment. The court granted summary judgment dismissal to the defendants and Royal appealed.

The U.S. Court of Appeals for the Third Circuit held that, under Heck v. Humphrey, 512 US 477 (1994), Royal's claim was barred to "avoid parallel litigation over the issues of probable cause and guilt," prevent "the creation of two conflicting resolutions arising out of the same or identical transaction," and to preclude "a convicted criminal defendant from making a...collateral attack on the conviction through the vehicle of a civil suit." The court held that a habeas corpus petition was the appropriate remedy. The court further held "[w]ere we to hold that...Pennsylvania did, in fact, incarcerate Royal beyond the statutory maximum, we would ...

by John S. Dannenberg

The California Court of Appeals has held that when a parole violator is denied a timely revocation hearing that comports with the due process protections set forth in Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. Cal. 2002) [“Valdivia”], the proper remedy is the prisoner’s release.
Vincent Marquez was arrested on July 22, 2005 for an alleged parole violation. Per Valdivia, he was supposed to receive a probable cause hearing within ten days and a revocation hearing within 35 days. Neither hearing was held within those time limits and Marquez petitioned for habeas corpus relief. Specifically, the probable cause hearing was held two days late and a purportedly defective revocation hearing was held one day late. The Santa Cruz County Superior Court granted the writ and ordered Marquez released.
On appeal, the California Dept. of Corrections and Rehabilitation (CDCR) complained that release was not the appropriate remedy for a late hearing, and that Marquez had failed to show he was prejudiced by the tardiness. The superior court took judicial notice of the Valdivia Remedial Plan, which expressly provides that a violator’s attorney shall be appointed by the sixth day of detention and shall be given a copy ...

by John E. Dannenberg

The California Court of Appeal, Second District, Division 6, affirmed a superior court’s ruling that had overturned Governor Arnold Schwarzenegger’s reversal of a favorable parole decision for a second-degree murderer. Applying an “especially close scrutiny” standard of review, the appellate court found there was no evidence supporting the Governor’s decision, and that the immutable fact of the nature of the murder could not be used to effect a permanent denial of parole.
Michael Montgomery pleaded guilty to second-degree murder in a 1985 killing that he had participated in, and was sentenced to 15 years to life. He had a history of alcohol-related incidents both before and during his incarceration, but had committed no other offenses. His last prison disciplinary infraction occurred in 1994.
Montgomery was found suitable for parole in 2005 at his eighth hearing, wherein the Board of Parole Hearings (BPH) noted his alcohol recovery programming. The San Luis Obispo County Sheriff and District Attorney vigorously recommended Montgomery’s release due to his previous cooperation, while the victim’s family opposed his parole. However, as is typical, the Governor (who chooses to review 100% of all parole grants but 0% of parole denials), reversed the BPH’s decision. ...