The opinion of the court was delivered by
This is an original habeas corpus action. Daniel L. Parker
filed a petition for a writ of habeas corpus on December 22,
1989, seeking release from confinement. Subsequent to filing the
petition, Parker was reparoled and released from confinement,
whereupon the State filed a motion for dismissal on the basis of
mootness. Parker contends the issue is not moot because he was
denied due process by an illegal parole revocation hearing and is
therefore entitled to his original parole terms. We ordered the
parties to file briefs.
The facts from which this action stems are quite complicated.
On November 4, 1988, Parker was paroled from the Kansas State
Industrial Reformatory. While on parole, Parker was arrested and
charged with the commission of two felonies; he was released on
bond July 19, 1989. On the same day, Parker's parole officer
issued an arrest and detain order for him and submitted a parole
violation report to the assistant parole services administrator
based on the new felony charges. Parker was arrested on the order
and confined to the Sedgwick County Jail on August 7, 1989. In
September 1989, he was convicted of felony criminal damage to
property and misdemeanor battery in the new case and incarcerated
on October 9, 1989, for a controlling term of one to two years.
On December 13, 1989, Parker was granted probation in the new
case but remained incarcerated under the arrest and detain order.
Based upon his felony conviction in September 1989, Parker's
parole officer issued a second arrest and detain order on
December 15, 1989, and the Secretary of Corrections issued a
warrant on December 21, 1989, charging him with parole
violations. Finally, on February 5, 1990, a parole revocation
hearing was held at which the parole board revoked Parker's
parole and ordered reparole pursuant to an approved plan. On
March 8, 1990, Parker was released from confinement on parole.
Parker contends the issue raised by his habeas corpus petition
is not moot because significant restraints on his liberty
followed the denial of due process in the course of his parole
Parker argues he was denied due process by the unjustifiable
delay in his parole revocation hearing. In Morrissey v. Brewer,
408 U.S. 471, 33 L.Ed.2d 484, 92 S.Ct. 2593 (1972), the
United States Supreme Court held that parolee liberty is valuable
and within the protection of the Fourteenth Amendment, thereby
requiring some procedural guarantees prior to revocation. 408
U.S. at 482. The Court ruled that a revocation hearing must be
held within a reasonable time after the parolee is taken into
custody and found that a two-month delay was not unreasonable.
408 U.S. at 488.
Habeas corpus relief is available, however, where the
petitioner establishes that the delay in holding a revocation
hearing is unreasonable and prejudicial. Sutherland v. McCall,
709 F.2d 730, 732 (D.C. Cir. 1983); Carlton v. Keohane,
691 F.2d 992, 993 (11th Cir. 1982); Goodman v. Keohane, 663 F.2d 1044,
1046 (11th Cir. 1981), reh. denied 668 F.2d 536 (11th
Cir. 1982). Thus, a 33-month delay between the arrest and
revocation hearing of a parolee was not a constitutional
violation where the parolee failed to show prejudice, because he
was under custody on other criminal sentences during the delay
period. Sutherland v. McCall, 709 F.2d at 732-33.
In the present case, Parker was arrested and taken into custody
on August 7, 1989. His revocation hearing was not held until
seven months later on February 5, 1990. From October 1989 to
December 1989, however, Parker was incarcerated on the basis of
his second felony case; thus, he was not prejudiced by delay
during this time period. Therefore, we calculate that Parker was
held in custody without a parole revocation hearing for a total
of three and one-half months. We do not find such delay
unreasonable or prejudicial in this case.
The only remedy for an unconstitutional delay in a parole
revocation hearing is to quash the parole violation warrant and
dismiss the parole violation charges. 59 Am.Jur.2d, Pardon and
Parole § 111. Thus, even if this court determined that a three
and one-half month delay was unreasonable under the
circumstances, Parker has already achieved his remedy, i.e., he
has been reparoled.
Parker also argues he was denied due process by the parole
officer's failure to submit a parole violation report to the
Secretary of Corrections, or his designee, within five days of
the issuance of an arrest and detain order pursuant to K.S.A.
75-5217(b). A copy of the parole officer's report to Larry Peter,
services administrator, issued on the date of Parker's arrest is
attached to the State's brief. This evidence ...