Opinion
No. 3:00-CV-1265-R
February 4, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the District Court. The findings and recommendation of the Magistrate Judge follow:
PROCEDURAL BACKGROUND
Petitioner brings this habeas corpus petition pursuant to 28 U.S.C. § 2254. On October 5, 1984, Petitioner was convicted in the 282nd District Court of Dallas County, Texas, of aggravated assault and attempted sexual assault. Petitioner was sentenced to twenty years imprisonment for each conviction, to be served concurrently.
On October 1, 1997, Petitioner was released onto mandatory supervision. On February 26, 1999, Petitioners's mandatory supervision was revoked. Petitioner filed three state applications for habeas corpus challenging the revocation. On September 8, 1999, the Texas Court of Criminal Appeals denied Petitioner's first writ application without written order on the findings of the trial court. Ex parte Salazar, Application No. 42,660-01, at cover. On May 17, 2000, the Texas Court of Criminal Appeals denied Petitioner's second writ application without written order. Ex parte Salazar, Application No. 42,660-02, at cover. Finally, on August 30, 2000, the Texas Court of Criminal Appeals denied Petitioner's third writ application without written order on the findings of the trial court. Ex parte Salazar, Application No. 42,660-03, at cover. On June 12, 2000, Petitioner filed this petition for writ of habeas corpus. Petitioner argues: (1) he was denied the right to a preliminary hearing; (2) he was denied the right to counsel at his revocation hearing; and (3) he was denied the right to confront his parole officer.
DISCUSSION
1. Standard of Review
The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA), 28 U.S.C. § 2254 provide:
(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C. § 2254 (d). Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 380-84 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United states Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 307.
This amendment applies to all federal habeas corpus petitions which are adjudicated on the merits in state court after April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2049 (1997). The petition in this case is subject to review under the AEDPA. Additionally, under 28 U.S.C. § 2254 (d), a presumption of correctness must be accorded findings of fact made by a state habeas court if supported by the record. Armstead v. Scott, 37 F.3d 202, 206 (5th Cir. 1994) (citation omitted).
2. Parole Revocation Hearing
Texas inmates have no constitutionally protected right to parole because the relevant Texas statutes do not create a protected expectation of release. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). The loss of liberty necessitated in parole revocation, however, requires that parolees be accorded due process during revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Thus, parolees have a conditional liberty interest protected by the Fourteenth Amendment of the Constitution entitling them to the following minimum due process requirements: (1) written notice of the claimed violations of parole; (2) disclosure of the evidence against the parolee; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body such as a parole board; and (6) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey, 408 U.S. at 489.
In this case, Petitioner argues his parole revocation was constitutionally defective because: (1) he was denied a preliminary hearing; (2) he was denied the right to counsel; and (3) he was denied the right to confront his parole officer.
2. Preliminary Hearing
Petitioner argues his constitutional rights were violated when he was denied a preliminary revocation hearing. A parolee, however, is not denied due process where the state provides him a full evidentiary hearing before the revocation of his parole or mandatory release becomes final. See 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); Barton v. Malley, 626 F.2d 151, 159 (10th Cir. 1980) (same, parole revocation); Bryant v. Cockrell, No. 4:01-CV-0020-A, 2001 U.S. Dist. WL 1516833 (ND. Tex. Nov. 27, 2001). In this case, Petitioner was provided a full revocation hearing on February 18, 1999. Petitioner's due process claims regarding the denial of a preliminary hearing should therefore be denied.
Under Texas law, no preliminary hearing is required if the parolee has only been charged with an administrative violation of a condition of parole or mandatory supervision. See 37 Tex. Admin. Code § 146.7 (f)(2). In this case, Petitioner was charged with the administrative violation of violating his curfew. ( Ex parte Salazar, Application No. 42,660-01 at p. 13).
3. Right to Counsel
Petitioner argues his constitutional rights were violated when he was denied appointment of counsel for the revocation hearing. A parolee has no absolute right to counsel during parole revocation proceedings. Gagnon, 411 U.S. at 790. A presumption of the right to counsel arises, however, where a petitioner makes a timely and colorable claim (i) that he has not committed the alleged violation; or (ii) that, even if the violation is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present. Id. The decision regarding the need for counsel is made on a case-to-case basis in the exercise of sound discretion by the state authority charged with the responsibility for administering the parole system. Id. at 790-91. Additionally, the agency should consider whether petitioner appears capable of speaking effectively for himself. Id.
In this case, Petitioner admitted at the hearing that he committed the curfew violation. ( Ex parte Salazar, Application No. 42,660-03, pp. 14-15; 30). Further, the hearing officer found that Petitioner understood the proceedings, that the issues were not too complex, that Petitioner was able to speak for himself, and that Petitioner was able to offer his arguments of mitigating circumstances. ( Ex parte Salazar, Application No. 42,660-01, p. 13). The state court therefore found Petitioner's claim was without merit. Petitioner has not shown that the state court's determination that he was not entitled to habeas relief on this claim was in conflict with clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented. Petitioner's claim should therefore be denied.
4. Right to confront parole officer
Petitioner claims his constitutional rights were violated when he was denied the right to confront parole officer Van Slyke. Petitioner testified that on May 27, 1998, he contacted parole officer Van Slyke and requested an "emergency pass" to visit his mother in Dallas. This request was denied. Petitioner testified that he told Van Slyke he was leaving without the emergency pass and that he understood he would be in violation of his parole.
At the revocation hearing parole officer Van Slyke did not testify. Instead, parole officer Robert Bence testified. Officer Bence stated that he received a page from BI Incorporation on May 27, 1998, stating that the monitoring box at Petitioner's residence had lost the capability of determining Petitioner's whereabouts. Officer Bence traveled to Petitioner's residence, and was informed by Petitioner's grandfather that Petitioner had "cut off the ankle bracelet and left." Officer Bence entered the residence and found the ankle bracelet lying on top of the monitoring machine. Officer Bence later received a call in December 1998, that Petitioner was arrested in Oklahoma.
In deciding to revoke Petitioner's parole, the hearing officer did not rely on any testimony from Van Slyke. (Hearing Officer's Fact Findings and Conclusions of Law). The hearing officer did rely on Petitioner's own statements regarding his conversations with officer Van Slyke. ( Id.). Further, there is no evidence that the hearing officer relied on any report submitted by Van Slyke. Therefore, although Petitioner argues he was denied to right "to address adverse witness `parole officer,'" Petitioner has not shown that parole officer Van Slyke was a witness against him in the parole revocation proceedings. Additionally, the hearing officer's conclusions that Petitioner violated the conditions of release were supported by the evidence. Since there was sufficient competent evidence, Petitioner is not entitled to relief. See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Petitioner has failed to show that the state court's determination that he was not entitled to habeas relief on was in conflict with clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented. Petitioner's claims should therefore be denied.
RECOMMENDATION
For the foregoing reasons, the Court recommends that the petition for habeas corpus relief be denied for failure to make a substantial showing of the denial of a federal right.