Summary
In Wilburn we stated the same principle with reference to the contention that the Adult Authority had failed to provide the parolee with assistance of counsel at his parole revocation hearing.
Summary of this case from M'Clary v. Calif. Adult Auth., Cal. DeptOpinion
No. 71-1135.
March 2, 1972.
Evelle J. Younger, Atty. Gen., Albert W. Harris, Jr., Asst. Atty. Gen., Derald E. Granberg, Deputy Atty. Gen., San Francisco, Cal., for appellants.
Ackeret Colteaux, San Rafael, Cal., for appellee.
Appeal from the United States District Court for the Northern District of California.
Before MERRILL, KOELSCH, and BROWNING, Circuit Judges.
Petitioner, a California prisoner, applied for a writ of habeas corpus on the ground that he was denied due process by the failure of the California Adult Authority to provide him with assistance of counsel at his parole revocation hearing. The district court granted the writ 323 F. Supp. 585. The Warden appealed.
It is the position of this court that as a general rule assistance of counsel is not an essential element of due process in such a proceeding because "alternatives adequate in point of fairness may well exist in routine cases." The ultimate test in each case is "whether the procedures followed by the Adult Authority were reasonably and fairly designed to enable it to ascertain whether issues existed concerning the asserted violation and to make an informed decision upon such issues." Dennis v. California Adult Authority, 456 F.2d 1240 (9th Cir., 1972). See Ellhamer v. Wilson, 445 F.2d 856 (9th Cir. 1971), and cases cited there.
Measuring petitioner's pleading against this standard, we conclude that he failed to allege facts demonstrating that assistance of counsel was an essential element of due process in this case. The order granting the writ is therefore reversed.