The opinion of the court was delivered by: Bua, District Judge.
This cause came before the Court for hearing on July 29, 1982.
At that time petitioner, Peter Michael Hebel, requested this
Court to release him on a recognizance bond, pending a final
parole revocation hearing scheduled for August 16, 1982, (Tr.
8).*fn1 The Court granted petitioner the relief sought, at which
time the government asked the Court to provide written reasons
for its ruling. This order is issued pursuant to that request.
The facts presented at the July 29 hearing are as follows. Mr.
Hebel was arrested on April 12, 1982 on a parole violator
warrant, based in part on municipal charges of disorderly conduct
and assault and battery. A default judgment was entered on the
latter charge which, according to the parole commission's
regulations, meant that it was unnecessary to conduct a
preliminary hearing on the alleged parole violation,
28 C.F.R. § 2.49(f).*fn2 On April 21, Mr. Hebel's counsel
wrote to the parole commission to inform it that the default
judgment had been vacated.*fn3 Upon receiving this information,
the commission reconsidered its initial conclusion that no
preliminary hearing was required, and, on May 7, 1982, the
commission informed Mr. Hebel that such a hearing would be held.
After several continuances, the hearing was conducted on
June 1, 1982.*fn4 At that time, the probation officer found
probable cause for six out of the eight charges which formed
the basis for the parole violator warrant. Nonetheless, the
probation officer recommended that the petitioner be released
from confinement and restored to supervision in the general
population. Despite this recommendation, Mr. Hebel was designated
to the Metropolitan Correctional Center in Chicago, pending his
final revocation hearing which was scheduled for June 30, 1982.
On June 25, 1982, five days before the hearing was to take
place, Mr. Hebel informed the Commission that he wished to be
represented by court-appointed counsel.*fn5 Counsel was appointed;
however, on the date of the hearing, counsel failed to appear
because of a conflict. Mr. Hebel was at that time informed that
he could either wait two months until another hearing could be
scheduled or sign a waiver of counsel
form. Petitioner declined to sign the waiver, and the hearing was
The rule of law governing the release of an alleged parole
violator pending a final parole revocation hearing is set forth
in Luther v. Molina, 627 F.2d 71 (7th Cir. 1980) as follows:
"There are two situations in which a parolee detained
during revocation proceedings might properly be
granted habeas corpus relief, including bail. The
first is when the petition alleges and the Court
finds that the incarceration itself does not comport
with constitutional or statutory
requirements. . . The second situation . . . is when
some other aspect of the revocation procedure is
attacked as unconstitutional or contrary to statute
627 F.2d at 76. In analyzing the first situation, the Court
listed as one example "an allegation that the preliminary hearing
was not conducted quickly enough to adhere to constitutional or
statutory requirements." Id. In this case, although this Court
concludes that the relevant statute was not violated by delay in
holding the preliminary hearing, the delay in holding the final
revocation hearing does constitute a statutory violation and
provides the basis for this Court's decision.*fn6
The relevant statute is 18 U.S.C. § 4214(a)(1)(B) which
provides that an alleged parole violator is entitled to a final
revocation hearing within 60 days of the initial probable cause
determination. In this case, petitioner's probable cause hearing
was held on June 1, 1982. He has now been informed that he will
receive a final hearing on August 16, 1982. This is a clear
violation of the statute and, when combined with the other facts
of petitioner's case, justifies petitioner's release on bail.
In the Molina case, the Seventh Circuit identified certain
findings which must be made before bail may be awarded by a
district court in a case like this. As a threshold matter, it
must be shown that the parolee has requested release from the
Parole Commission and has been denied. Id. at 77. Mr. Hebel's
petition to this Court indicates that he made such a request,
through his counsel, on July 23, 1982 (Petition for Writ of
Habeas Corpus at 2-3). Additionally, it must be found that the
requirements of 18 U.S.C. § 4214(a)(1)(A)(i-iv) are met. Id. This
Court finds that they are.
First, in light of the fact that it has now been almost four
months since petitioner was initially arrested, the Court is
virtually compelled to find that continuation of the revocation
proceedings is not warranted. 18 U.S.C. § 4214(a)(1)(A)(i). This
finding is especially appropriate in light of the fact that much
of the delay has occurred through no fault of the petitioner.
Although it is true that the initial delay in setting a date for
the preliminary hearing and the subsequent continuance of that
hearing are in part attributable to petitioner's actions, see
n. 4, p. 2, supra; cf. Molina, 627 F.2d at 75, n. 3, the extension
of the date for the final hearing was completely beyond the
petitioner's control, and, indeed, caused him considerable
frustration and dismay, (Tr. 7). This Court cannot permit a man,
not yet found to have in fact violated his parole, to be required
to spend almost two additional months in prison because his
court-appointed counsel announced, on the initially scheduled day
of the hearing, that he would be unable to attend because of a
conflict. Also, it is relevant at this point to reiterate the
fact that, at the probable cause hearing, the hearing officer
recommended that petitioner be released from confinement while
awaiting his final hearing, p. 2, supra. In light of these facts,
this Court finds that the delay in holding petitioner's final
hearing is unwarranted.
Third, this Court finds that "the parolee is not likely to fail
to appear for further proceedings." 18 U.S.C. § 4214(A)(1)(A)
(iii). Mr. Hebel is recently married. Although he has lost his
newly purchased house to the mortgage company since his
imprisonment, he has indicated that he would be able to move in
with his mother in Milwaukee where his wife is presently living,
(Tr. 13). Additionally, Mr. Hebel is presently employed as a car
salesman in Milwaukee, and has been so employed for two years.
His employer is Mr. Tom Wiel, a former U.S. Attorney who has
given Mr. Hebel a strong recommendation and has promised to help
him comply with the conditions of parole. These indications of
stability and support make it highly unlikely that Mr. Hebel will
fail to appear for further proceedings.
Finally, this Court finds that petitioner "does not constitute
a danger to himself or others." 18 U.S.C. § 4214(a)(1)(A)(iv).
The facts relevant to the preceding statutory sections are
equally relevant to this finding.
In sum, although the Court is fully cognizant of the fact that
district courts are to be extremely reluctant to order release on
bail to parolees detained during revocation proceedings, Molina,
627 F.2d at 75-76, this case presents the sort of unique
situation which makes such a release fully appropriate. The time
requirements of 18 U.S.C. § 4214(a)(1)(B) have not been ...