Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


July 13, 1990.

DANIEL L. PARKER, Petitioner,
STATE OF KANSAS, Respondent.

The opinion of the court was delivered by

[247 Kan. 215]


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 revocation proceedings.

  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

[247 Kan. 216]

      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, assistant parole

[247 Kan. 217]

      services administrator, issued on the date of Parker's arrest is attached to the State's brief. This evidence ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.