Indeed, vacatur of a sentence imposed after a final hearing is not an available remedy for errors made during a preliminary hearing when the alleged constitutional violation has no relation to the defendant's subsequent imprisonment.See Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979) (per curiam); United States v. Companion, 545 F.2d 308, 313 (2d Cir. 1976).
At that point, โthe denial of [Petitioner's] preliminary hearing right no longer has any relation to his incarceration,โ and โ[t]o order [his] release from custody at this time would be to grant an extreme remedy for a deprivation from which [he] is no longer suffering.โ See Collins v Turner, 599 F.2d 657, 658 (5th Cir 1979) (finding provision of a final revocation hearing effectively remedied any constitutional defect from failing to conduct a preliminary hearing). In other words, the BPP's failure to provide Petitioner with a preliminary hearing bears no relation to his present incarceration, which is the result of the revocation hearing that took place two weeks after Petitioner was notified of his alleged violations.
As such, whether Petitioner was afforded a preliminary hearing is irrelevant to his current confinement. See Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979). Biggers's first ground must be dismissed as moot. 2. Failure to Reopen the Revocation Hearing.
In Collins v Turner, the Fifth Circuit held that when a petitioner is given an evidentiary hearing prior to the final revocation of his parole, the preliminary hearing isn't necessary. 599 F.2d 657, 658 (5th Cir 1979). Looked at a different way, the preliminary hearing of itself has no relation to his incarceration.
Mr. McBride's due process rights were not violated because he did not receive a preliminary hearing prior to his parole revocation hearing; his complaints regarding a preliminary hearing were rendered moot by his final hearing. Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979). Furthermore, Mr. McBride's right to due process was not violated because he was found in violation of a parole condition "not set out in the Certificate of Parole."
Petitioner's complaints regarding a preliminary hearing are rendered moot by his final hearing. See Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979) (indicating the lack of a preliminary hearing after a final hearing "no longer has any relation to his incarceration."). 2.
Moreover, the failure to provide a preliminary hearing will not provide a basis for habeas relief if the parolee was afforded, as Browder was, a Constitutionally adequate evidentiary hearing with counsel present before the revocation of his parole became final. Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979). Browder has made no showing of prejudice or of substantial injurious effect stemming from the State's alleged conduct.
Even if Gerke is arguing that the provisions of Section 21 give rise to state-created rights protected by the Fourteenth Amendment's Due Process clause, habeas relief is not appropriate unless the State's actions had a "substantial and injurious effect or influence" in determining the outcome of the revocation proceeding. See Fry v. Pliler, 551 U.S. 112, 121-22 (2007); Brecht v. Abrahamson, 507 U.S.619, 631 (1993); see also Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979) (denying habeas relief on claim that state failed to conduct a preliminary revocation hearing because the state "did afford [the petitioner] a full evidentiary hearing, with counsel present, before the revocation of his probation became final"). Gerke has made no such showing.
Furthermore, even if the Court were to review the claim on the merits, the argument does not support a claim for habeas relief. Any claim regarding the "lack of a preliminary hearing is meritless since a final revocation hearing was held." Loisel v. King, 2011 WL 2414615, *6 n. 2 (S.D. Miss. Jan. 11, 2011)(citing Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979)(denying habeas relief for failure to conduct preliminary probation revocation hearing when final revocation hearing had been conducted)). Accordingly, habeas relief on this issue should be denied.
Hence, Davis's incarceration flowed from his valid revocation hearing rather than any failure to hold a preliminary hearing. See United States v. Companion, 545 F.2d 308, 312-313 (2d Cir.1976) (failure to hold a preliminary hearing was not prejudicial error where the defendant had been found to be in violation of probation following a revocation hearing); see also Barton v. Malley, 626 F.2d 151, 159 (10th Cir. 1980) (denying habeas relief for failure to conduct preliminary parole revocation hearing when final revocation hearing had been conducted); Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979)(same, probation revocation). As a final matter, Rule 11(a) of the Rules Governing ยง 2254 Cases provides that a district court must issue or deny a certificate of appealability when it enters "a final order adverse to the applicant.