John D. Burton v. Dr. P. J. Ciccone, Dir., United States Med. Ctr. for Fed. Prisoners, Springfield, Missouri, 484 F.2d 1322 (8th Cir. 1973). · Go Syfert
Search
John D. Burton v. Dr. P. J. Ciccone, Dir., United States Med. Ctr. for Fed. Prisoners, Springfield, Missouri, 484 F.2d 1322 (8th Cir. 1973). Cases Citing This Book View Copy Cite
G Cite
cited 4× by 4 distinct cases, last quoted 1983 · …substantially comply with its own rules and regulations. at p. 1324 ✓
36 citation events (2 in the last 25 years) across 8 distinct courts.
Strongest positive: Mitchell v. United States Parole Commission (ca8, 2008-08-15)
Treatment trajectory · 1973 → 2026 · click a year to view as-of
1973 1999 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
discussed Cited as authority (rule) Mitchell v. United States Parole Commission
8th Cir. · 2008 · confidence medium
See Benny, 295 F.3d at 988-89 ; Luther, 635 F.2d at 616-17 ; Sacasas, 755 F.2d at 1535-36 ; cf. Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1181 (8th Cir.1990) (appropriate remedy for Commission’s failure to hold initial parole hearing is to require Commission to hold hearing at earliest possible date, not to order petitioner’s release); United States v. Miller, 599 F.2d 249, 251 (8th Cir.1979) (per cu-riam) (where inmate has not received timely initial parole hearing, proper course is to grant him hearing at earliest possible date); DeShields v. U.S. Parole Comm’n, 593 F.2d 354, 355…
discussed Cited as authority (rule) Arnold Mitchell v. United States Parole Commissio
8th Cir. · 2008 · confidence medium
See Benny, 295 F.3d at 988-89 ; Luther, 635 F.2d at 616-17 ; Sacasas, 755 F.2d at 1535-36 ; cf. Jones v. U.S. Bureau of Prisons, 903 F.2d 1178, 1181 (8th Cir. 1990) (appropriate remedy for Commission’s failure to hold initial parole hearing is to require Commission to hold hearing at earliest possible date, not to order petitioner’s release); United States v. Miller, 599 F.2d 249, 251 (8th Cir. 1979) (per curiam) (where inmate has not received timely initial parole hearing, proper course is to grant him hearing at earliest possible date); DeShields v. U.S. -5- Parole Comm’n, 593 F.2d 354…
discussed Cited as authority (rule) Bobby Ray Jones v. U.S. Bureau of Prisons, C.A. Turner, Warden, McFp U.S. Parole Commission
8th Cir. · 1990 · confidence medium
The most we can do is require the Parole Board to give the petitioner a fair hearing in accordance with its rules and regulations at the earliest possible date.” Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir.1973); see United States v. Miller, 599 F.2d 249, 251 (8th Cir.1979) (per curiam); DeShields v. United States Parole Comm’n, 593 F.2d 354 , 355 (8th Cir.1979) (dictum).
discussed Cited as authority (rule) Frank Briggs v. United States Parole Commission Marion Lacy, Warden
8th Cir. · 1984 · confidence medium
The Parole Commission contends that its parole decision may not be reversed unless it constitutes, “flagrant, unwarranted, or unauthorized action,” or a failure to substantially comply with commission rules and regulations citing, Kelsey v. Minnesota, 565 F.2d 503, 506 (8th Cir.1977), and Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir.1973).
cited Cited as authority (rule) Paul Elmer Melvin v. Joseph S. Petrovsky, Warden, United States Medical Center for Federal Prisoners, United States Parole Commission
8th Cir. · 1983 · confidence medium
Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir.1973).
discussed Cited as authority (rule) Corso v. Petrovsky
8th Cir. · 1983 · confidence medium
Appellant contends that as a result of the improper classification, he is denied the benefits of the lower security classification, which include furloughs, work assignments, and potential transfer to lower security institutions. 5 This court has often required the Bureau of Prisons to "substantially comply with its own rules and regulations." E.g., Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir.1973).
cited Cited as authority (rule) Corso v. Petrovsky
8th Cir. · 1983 · confidence medium
This court has often required the Bureau of Prisons to “substantially comply with its own rules and regulations.” E.g., Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir.1973).
discussed Cited as authority (rule) Dennis v. Solem
8th Cir. · 1982 · confidence medium
The equities of this situation might justify this course of action, but the law requires a different result. 8 The relief required in a case such as this was set out in Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).
cited Cited as authority (rule) Dennis v. Solem
8th Cir. · 1982 · confidence medium
The relief required in a case such as this was set out in Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).
discussed Cited as authority (rule) Marvin N. Albers v. George A. Ralston, Jr., Warden, United States Medical Center for Federal Prisoners, Joseph L. Burnett v. George A. Ralston, Jr., Warden, United States Medical Center for Federal Prisoners, William John Politte v. George A. Ralston, Jr., Warden, United States Medical Center for Federal Prisoners (2×)
8th Cir. · 1981 · confidence medium
In support of his recommendation, the magistrate cited Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir. 1973), stating that "when a regulation or Program Statement is adopted (by the Bureau of Prisons) it must be followed." 9 The Warden filed exceptions to the magistrate's recommendations, asserting that the Bureau of Prisons had consistently interpreted its policy to authorize the six-point credit only if the individual who surrendered was not under bond or other financial obligation.
discussed Cited as authority (rule) Albers v. Ralston (2×)
8th Cir. · 1981 · confidence medium
In support of his recommendation, the magistrate cited Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir. 1973), stating that “when a regulation or Program Statement is adopted [by the Bureau of Prisons] it must be followed.” The Warden filed exceptions to the magistrate’s recommendations, asserting that the Bureau of Prisons had consistently interpreted its policy to authorize the six-point credit only if the individual who surrendered was not under bond or other financial obligation.
cited Cited as authority (rule) United States v. Orland Eugene Miller
8th Cir. · 1979 · confidence medium
Cf. Calvin DeShields v. United States Parole Commission, 593 F.2d 354, 356 (8th Cir. 1979); Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).
cited Cited as authority (rule) Deshields v. United States Parole Commission
8th Cir. · 1979 · confidence medium
Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).
cited Cited as authority (rule) DeShields v. United States Parole Commission
8th Cir. · 1979 · confidence medium
Burton v. Ciccone, 484 F.2d 1322, 1323 (8th Cir. 1973).
discussed Cited "see" Ismail Mohammed v. John Sullivan
8th Cir. · 1989 · signal: see · confidence high
See Albers v. Ralston, 665 F.2d 812, 819 (8th Cir.1981) (Arnold, J., dissenting), citing Burton v. Ciccone, 484 F.2d 1322, 1324 (8th Cir.1973) (action to compel Bureau of Prisons to "substantially comply with its own rules and regulations").
cited Cited "see, e.g." Tasker v. Mohn
W. Va. · 1980 · signal: see also · confidence low
See also, Burton v. Ciccone, 484 F.2d 1322 (8th Cir. 1973), 67A C.J.S.
discussed Cited "see, e.g." Scott v. Kentucky Parole Board (2×)
SCOTUS · 1976 · signal: see also · confidence low
See also Burton v. Ciccone, 484 F. 2d 1322 (CA8 1973) (parole board must follow its own rules, but implicitly holding that due process does not apply).
Retrieving the full opinion text from the archive…
John D. BURTON, Petitioner-Appellant,
v.
Dr. P. J. CICCONE, Director, United States Medical Center for Federal Prisoners, Springfield, Missouri, Et Al., Respondents-Appellees
73-1385.
Court of Appeals for the Eighth Circuit.
Oct 4, 1973.
484 F.2d 1322
John D. Burton, pro se., Bert C. Hurn, U. S. Atty., and Frederick 0. Griffin, Jr., and Anthony P. Nu-gent, Jr., Asst. U. S. Attys., Kansas City, Mo., on brief, for appellee.
Heaney, Stephenson, Webster.
Cited by 29 opinions  |  Published
HEANEY, Circuit Judge.

The petitioner in this habeas corpus appeal is an inmate of the United States Medical Center for Federal Prisoners at Springfield, Missouri. On January 17, 1973, he filed a petition in the United States District Court for the Western District of Missouri, alleging that he was eligible for parole consideration during November of 1972, and that he had been deprived of a hearing in that month before the Parole Board. He[*1323] contended that the failure to grant him the parole hearing was based on the negligence of prison officials, and sought release from prison as a remedy. The government responded on March 2, 1973, conceding that he had not been given a hearing in November and alleging that the failure was due to an unintentional “clerical error.” It also stated that the petitioner, under a Warden’s Referral, was given a hearing before a Parole Board Examiner on January 26, 1973, and was denied a parole on the merits. The government asked that the petitioner’s application should be dismissed as moot. In his Traverse, filed on March 8, 1973, the petitioner claimed that his petition was not mooted by the January hearing. He also questioned the adequacy of the January hearing.

The petitioner’s application and other pleadings were referred by the District Court to a United States Magistrate in accordance with the applicable Local Rule of the Western District of Missouri. The magistrate, in a written memorandum, found there were no controverted facts in the pleadings and, without a hearing, recommended dismissal without prejudice of the petitioner’s application for a Writ of Habeas Corpus. The District Court approved the magistrate’s memorandum and recommendation, and ordered dismissal of the petition without prejudice.

The government concedes that the defendant was eligible for parole on December 2, 1972, and that he was thus entitled to a hearing before that date. It also concedes that he was not given a hearing because his institutional parole officer neglected to give the petitioner a proper application form, which failure resulted in the defendant not being included on the list of those who were given hearings in November of 1972. This “clerical error” was inexcusable, but neither the District Court nor this Court has the right to correct the mistake by ordering the petitioner released. The most we can do is require the Parole Board to give the petitioner a fair hearing in accordance with its rules and regulations at the earliest possible date. Here, the petitioner was given a hearing by the Parole Board on January 26, 1973.

The petitioner contends that the January hearing was an invalid one because it was held in response to a Warden’s Referral and not an inmate application. The petitioner argues that a warden may only refer an inmate to the Parole Board for an explanation of his right to apply for parole and not for a parole hearing. He also contends he was not given an adequate notice to prepare for the hearing. These arguments are inconsistent with his contention that he was entitled to an earlier hearing in November and are without merit. It appears to us that the hearing was properly held to correct the “clerical error.”

The petitioner finally contends that the January hearing was violative of the rules of the Parole Board in that the Board did not have before it all of the data required by the “Rules of the United States Board of Parole, 1971.” [1] The[*1324] government answers this contention with the statement that courts have no right to question the decisions of the Board. See, Brest v. Ciccone, 371 F.2d 981 (8th Cir. 1967).

We think the government misses the point. Even though Brest teaches that we cannot substitute our decision for that of the Parole Board, we think it clear that the Parole Board must substantially comply with its own rules and regulations in reaching its decisions. See, Scarpa v. United States Board of Parole, 477 F.2d 278, 284 (5th Cir. 1973) (Clark & Simpson, JJ., concurring) . On the basis of the record be'fore us, we are unable to tell whether the Parole Board followed its rules and regulations in conducting the petitioner’s hearing. [2] We, therefore, have no alternative but to remand this matter to the District Court with instructions to it to determine whether or not the January hearing was conducted in accordance with the Parole Board’s rules and regulations. If it finds that it*was, the decision of the Parole Board may stand. If it finds to the contrary, it must direct the Parole Board to give the petitioner a new hearing in accordance with its rules and regulations.

Remanded for action consistent with this opinion.

1

. “The following factors are considered by the Board in its decision making.

“A. Sentence Data
“ (1) Type of sentence
“ (2) Length of sentence
“(3) Recommendations of Judge, U. S. Attorney and other responsible officials
“B. Facts and Circxwnstances of the Offense
“(1) Mitigating and aggravating factors
“(2) Activities following arrest and prior to confinement, including adjustment on bond or probation, if any
“C. Prior Criminal Record
“ (1) Nature and pattern of offenses
“(2) Adjustment to previous probation, parole, and confinement
“(3) Detainers
“D. Changes in Motivation and Behavior
“(1) Changes in attitude toward self and others
“(2) Reasons underlying changes
“(3) Personal goals and description of personal strengths or resources available to maintain motivation for law-abiding behavior
“B. Personal and Social History
“(1) Family and marital
“(2) Intelligence and education
“(3) Employment and military experience
“(4) Leisure time
“(5) Religion
“(6) Physical and emotional health
[*1324] “F. Institutional Experience
“(1) Program, goals and accomplishments in areas:
“(a) Academic
“(b) Vocational education, training ox work assignments
“ (c) Recreation and leisure time use
“(d) Religion
“(e) Therapy
“ (2) General adjustment:
“(a) Inter-personal relationships with staff and inmates
“(b) Behavior, including misconduct
“(3) Physical and emotional health, and treatment
“G. Community Resources, Including Release Plans
“ (1) Residence; live alone, with family, or others
“(2) Employment, training, or academic education
“(3) Special needs and resources to meet them
“H. Use of Scientific Data and Tools
“(1) Psychological and psychiatric evaluations
“(2) Pertinent data from the uniform parole reporting system
“(3) Other statistical data
“ (4) Standardized tests
“I. Comments by Hearing Member or Examiner
“Evaluative comments supporting a recommendation, including his impressions gained from the hearing.”

United States Board of Parole, 1971, 14-17 (Emphasis included.).

The briefs of the parties do not consider what rules and regulations were applicable at the time of the January hearing. This matter can be resolved by the District Court on remand.

2

. Included in the record of the District Court are documents referred to as “classification data” which were received by the court from the prison authorities. These documents would appear to include much of the information that the petitioner contends is required to be considered by the Board in disposing of parole applications. However, there is no representation in the record that indeed this is the information that was before or considered by the Board, and it would be improper for us to draw such a conclusion.