United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
United States Court of Appeals, Tenth Circuit
2d 1232
This is an appeal from a denial by the United States District Court for the
District of Colorado of an application for a three-judge court and for an
injunction against enforcement of the Colorado statutes governing parole and
revocation of parole.
Appellant has alleged, and appellees have not denied, that he was not afforded
representation of counsel at the State hearing on parole revocation, and that he
has not been given credit for the period of his sentence served while he was on
parole.
The refusal of the single trial judge to invoke the three-judge statute was made
on the basis of its determination that petitioner had failed to allege a substantial
constitutional question. The trial judge must make such an examination of the
complaint and petition. California Water Service Co. v. Redding, 304 U.S. 252,
58 S.Ct. 865, 82 L.Ed. 1323; Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78
L.Ed. 152; Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d
194. Also under these decisions if there is so presented no substantial
constitutional question, the single judge must refuse to request that a threejudge court be convened. The trial judge here also denied all relief sought by
petitioner. We have serious reservations whether the remedy here sought is
available at all to the petitioner since this would appear to be a typical case in
which relief should first be sought by habeas corpus. Our consideration of this
appeal does not decide that issue, but in view of the disposition made by the
trial court, and the fact that no objection is raised to the remedy, we will
consider the case as the trial court did. On appeal the only consideration is
whether the trial judge was correct in his conclusion of law that no substantial
constitutional question was presented.
The proper court to which appeals may be taken from final orders of single
judges refusing to request that a three-judge court be convened and also
determinations by three-judge courts to dissolve, has been considered by the
Supreme Court recently in several aspects. These include the decisions in
Mengelkoch v. Industrial Welfare Comm'n, 393 U.S. 83, 89 S.Ct. 60, 21
L.Ed.2d 215; Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20
L.Ed.2d 636; Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18
L.Ed.2d 865; and Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713,
82 S.Ct. 1294, 8 L.Ed.2d 794. See also, Petuskey v. Rampton, 431 F.2d 378
(Tenth Circuit, September 2, 1970). We hold that the appeal to this court is
proper under these cited cases.
7
'* * * The due process clause of the fourteenth amendment does not generate
rights to confrontation, nor to cross-examination or compulsory process (at
parole revocation hearings). * * * We also hold that due process does not
comprehend the dual rights to witnesses under oath and evidence in conditional
release hearings.'
Thus the issues raised by appellant have been decided by this and other courts
and there remains no substantial question. The trial court so decided and, we
hold, correctly so.
10
Weathers v. Willingham, 356 F.2d 421 (10th Cir.1966), we held that the
statutory refusal to count time spent on parole when sentence is resumed does
not violate due process. This is in accord with the general authority on the
point.
11
12
We find that appellant's constitutional arguments are, as the District Court held,
insubstantial.
13
Affirmed.
Judge Hickey, now deceased, heard the arguments in this case but did not
participate in this decision