Schnackenberg and Kiley, Circuit Judges, and Grubb, District Judge.
These appeals are from orders denying post-conviction relief on petition for issuance of writ of habeas corpus and on motion under § 2255, Title 28 U.S.C.A., respectively.
Petitioner, an inmate of a United States correctional institution, was convicted on his plea of guilty to a violation of § 2312, Title 18 U.S.C.A., in the United States District Court for the Southern District of California on January 16, 1961. He waived right to counsel and was not represented by counsel in this underlying criminal proceeding. That court imposed a sentence of commitment of three years, suspended execution of this sentence, and placed petitioner on probation for a term of four years. Relief from this conviction by motion under § 2255 was denied by order dated March 30, 1964.
In February 1961, probation jurisdiction over petitioner was transferred to and accepted by the United States District Court for the Southern District of Illinois. In November 1962, a probation revocation hearing on charges of leaving the district and of gambling resulted in "reinstatement" of probation. Petitioner was not represented by counsel in this proceeding.
After petitioner's conviction of a charge of passing bad checks in Arkansas, on which he received a five-year suspended sentence, he was returned to federal custody, and the probation revocation proceedings challenged here were held on September 18, 1963.
The judgment and commitment order issued on the probation revocation hearing recites that petitioner appeared in court in person and without counsel; that he was advised of his constitutional right to counsel; that, on being asked whether he desired counsel assigned to him, he replied that he did not; and that the court found that petitioner knowingly and intelligently waived the right to counsel.
The transcript of this hearing does not reflect that petitioner was advised of the right to counsel, that he waived appointment of counsel, or that he requested counsel. At the hearing, the court initially imposed a sentence of commitment of four years and then corrected the term to three years in accordance with the requirements of § 3653, Title 18 U.S.C.A. This statute authorizes the court to require a probationer to serve the sentence originally imposed or any lesser sentence unless imposition of sentence was initially suspended. The transcript further reveals that petitioner did not deny or otherwise challenge the accusation concerning the violation of probation but called attention to his conduct in not participating in a jail break in Arkansas although he had an opportunity to escape.
The court which revoked probation and required petitioner to serve the sentence originally imposed denied an earlier application on motion under § 2255 on the ground that the judgment of conviction showed that he had waived appointment of counsel. The renewed motion under § 2255, presently on appeal, was denied by the Court without comment on the issue of denial of counsel.
The request for issuance of the writ of habeas corpus was grounded, inter alia, on an allegation of harassment in the prosecution of post-conviction remedies by petitioner's transfer to various correctional institutions. This petition was denied on the ground that petitioner had an adequate remedy under § 2255 of Title 28 U.S.C.A.
The basic issue presented by these consolidated appeals is concerned with the right to representation by counsel on proceedings for revocation of probation. For purposes of this decision, the Court assumes but does not decide that petitioner was not apprised of any right to counsel and did not specifically waive any right to appointment of counsel in the probation revocation proceedings.
An offender's rights under the Federal Probation Act have been construed in Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266 (1932), and in Escoe v. Zerbst, 295 U.S. 490, 55 S. Ct. 818, 79 L. Ed. 1566 (1935). The Act is intended to provide a period of grace in order to aid the rehabilitation of a penitent offender. Probation is conferred as a privilege and cannot be demanded as a matter of right. The offender stands convicted and faces punishment. The source of his rights under the Federal Probation Act lies in the legislative mandate, not in the Constitution of the United States.
Congress has declared that a probationer accused of violating his probation "shall be taken before the court for the district having jurisdiction over him." Section 3653, Title 18 U.S.C.A. Although no trial in any strict or formal sense is required, the legislative directive that the accused probationer shall be taken before a court means that --
"* * * there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe ...