Robert Newton Gardner, Jr., and v. D. J. McCarthy Superintendent, Raymond K. Procunier

In No. 74-1775, the Supreme Court vacated our earlier judgment affirming the refusal to grant a writ of habeas corpus and remanded the case for consideration in light of Gagnon v. Scarpelli, 411 U.S. 778 , 93 S.Ct. 1756 , 36 L.Ed.2d 656 (1973). Gardner v. McCarthy, 412 U.S. 916 , 93 S.Ct. 2737 , 37 L.Ed.2d 142 (1973).

Gardner’s parole was revoked in 1971, prior to the Supreme Court’s decision in Morrissey v. Brewer, 408 U.S. 471 , 92 S.Ct. 2593 , 33 L.Ed.2d 484 (1972), requiring parole revocation proceedings to satisfy certain due process criteria. These standards, however, were expressly made applicable only to future revocation hearings. Id. at 490 , 92 S.Ct. 2593 . Thus although Gardner had anticipated Morrissey by himself insisting upon the rights there announced, we affirmed the denial of his petition.

Subsequently, the Supreme Court in Gagnon v. Scarpelli, supra, extended the Morrissey requirements to include representation by counsel at parole and probation revocation proceedings. This, too, Gardner anticipated in 1971. In the aftermath of Scarpelli the Court vacated the judgments in a number of cases pending before it and remanded them for further consideration.…