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finding witnesses' testimony via telephone consistent withMorrissey where evidence demonstrated that witness was fearful of the petitioner
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No. C 02-2261 SI (pr)
March 25, 2003
JUDGMENT
The petition for writ of habeas corpus is denied on the merits.
IT IS SO ORDERED AND ADJUDGED.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS DAVID SHORE, No. C 02-2261 SI (PR) Petitioner, v. BULL LOCKYER, Attorney General of the State of California, Respondent.INTRODUCTION
This matter is now before the court for consideration of the merits of David Shore's pro se petition for writ of habeas corpus concerning his June 7, 2000 parole revocation. For the reasons discussed below, the petition will be DENIED.BACKGROUND
A. Factual History
David Shore was sentenced to sixteen years in prison in March 1996, after a San Mateo County Superior Court jury convicted him of various sex offenses. Shore was released on parole on March 15, 2002. Shore's parole agent arrested Shore and delivered him to san Quentin State prison a month and a half later, on April 28, 2000, after receiving information that Shore contacted his ex-wife's employer in an attempt to obtain confidential information about his ex-wife. shore remained in San Quentin, and on June 7, 2002, a hearing officer at the Board of Prison Terms revoked Shore's parole after finding that Shore committed three parole violations when he made harassing telephone calls to three individuals after his March 15, 2000 release. The hearing officer recommitted Shore to nine months in prison, three months for each parole violation. Currently, Shore is on parole with a termination date of December 3, 2003. Shore's present petition concerns the Board of Prison Terms' decision to revoke Shore's parole; it does not concern the underlying criminal conviction. Accordingly, the Court limits its factual examination to Shore's alleged parole violations and parole revocation hearing.
The hearing officer at Shore's parole revocation hearing found that Shore violated three of the six charges against him: charge 2, for harassing his ex-wife by making a telephone call to Sandra Gunnett; charge 4, for making harassing telephone calls to Amy Vona; and charge 6, for making a harassing telephone call to Katherine Gallo. Shore allegedly made these calls between March 2000 and May 2000, and all relate to Shore's ex-wife, Fenty Kaliman, and their longtime, ongoing property settlement dispute. Fenty Kaliman is one of the individuals Shore is prohibited from contacting as a special condition of his parole.
1. Charge 2 — Telephone call to Sandra Gunnett
Charge 2 results from a telephone call Shore made during the morning of April 28, 2000 to Sandra Gunnett, the human resources manager at the company that employed Shore's ex-wife. Allegedly, the male caller who refused to identify himself and who insisted he worked for a credit agency, told Ms. Gunnett he needed credit information about Ms. Kaliman in order to accept Ms. Kaliman's credit application. Ms. Gunnett told the caller that she would not cooperate unless the caller identified himself and the company for which he worked. The caller began to talk louder and faster and told Ms. Gunnett that if she would not cooperate, then he would have to turn down Ms. Kaliman's application and that it would be Ms. Gunnett's fault. During the telephone call, Ms. Gunnett felt uncomfortable with the caller's responses and wrote down the phone number that appeared on her caller identification display.
After the call, Ms. Gunnett informed Ms. Kaliman about the incident. Ms. Kaliman, knowing that her ex-husband had been transferred to Sonoma County on parole, and recognizing the area code from the caller ID as one from Sonoma County, had a friend call the number and ask to speak to "Mr. Shore." The man who answered Ms. Kaliman's call identified himself as "Mr. Shore." Ms. Kaliman then contacted Shore's parole agent and reported the call.
Shore admits that he made the phone call to Ms. Gunnett, but asserts that he hung up as soon as Ms. Gunnett asked him to identify himself, and denied asking for credit information. Shore claimed he phoned Ms. Gunnett only to verify his ex-wife's employment in regard to their property settlement dispute, and further stated that he believes his ex-wife is concealing the fact that she is not merely an employee at the company, but rather a major investor or stock holder.
2. Charge 4 — Telephone call to Amy Vona
Shore allegedly telephoned Amy Vona on at least three occasions beginning at the end of March 2000 and continuing through the end of April 2000. During his first call, Shore told Ms. Vona his name and identified himself as Fenty Kaliman's ex-husband, explaining that he had met Ms. Vona and her husband approximately ten years ago when they attended a party at Shore's house. After Ms. Vona informed Shore that she did not remember him, Shore told Ms. Vona that his ex-wife had laundered millions of dollars and that he would like Ms. Vona and her husband to testify in court against his ex-wife. When Ms. Vona told Shore that she could not help him, as she did not recall him or Ms. Kaliman, Shore gave her his phone number and asked her to think it over and call him when she and her husband were ready to cooperate. Shore also asked Ms. Vona if she knew "Attie Olson," and she replied that she did not.
Attie Olson is a woman Shore allegedly raped in 1987 and who testified against Shore at his 1996 trial.
A week later, Shore allegedly telephoned Ms. Vona again, asking if she or her husband were ready to meet with him. Ms. Vona repeated that she could not help him, and Shore, sounding upset, told her he was a former lawyer who knew the laws and would subpoena her and initiate a lawsuit against her if she would not cooperate.
After the second call, Ms. Vona reported coming home from work and finding over twenty anonymous calls listed on her caller identification. Ms. Vona also claims she received several calls in which the caller hung up when she answered. On one of these occasions, after answering the phone and hearing the caller hang up, Ms. Vona dialed *69, a call return service. The man who answered the phone said, "This is David Shore." Ms. Vona told him to stop calling her and he responded by telling her that he found a copy of her cancelled check from two years ago payable to his ex-wife's credit card. Shore again asked Ms. Vona if she knew "Attie Olson," informing Ms. Vona that he wanted to get even with Ms. Olson. Before Ms. Vona hung up the phone, Shore said "I know where you live. You still live at Illinois Avenue, do [sic] you?"
Shore admits to calling Ms. Vona on March 31, 2000, but denies making any other contact with Ms. Vona. Shore contends that he only asked her to cooperate with him in his property settlement case against his ex-wife and told her that he would subpoena her as a hostile witness if she refused. He asserts that his ex-wife manipulated Ms. Vona into making false and incriminating allegations against him.
3. Charge 6 — Telephone call to Katherine Gallo
At approximately 7:00 p.m. on May 18, 2000, while in custody at San Quentin for his April 28, 2000 alleged parole violation, Shore allegedly telephoned Katherine Gallo's home office. Ms. Gallo had been appointed to serve as a discovery referee in Shore's divorce proceeding in September 1999, and after Shore had become dissatisfied with her handling of the matter, in December 1999, he served her with a motion to disqualify at her allegedly confidential home address.
When Ms. Gallo's assistant answered Ms. Gallo's business line phone on May 18, 2000, a male caller hesitated and then asked for John Podesta, Ms. Gallo's husband. Ms. Gallo stated that her husband's name is not connected with and not disclosed in relation to her business line. The caller identified himself as "Dave Shore from First USA Bank," the bank that Ms. Gallo uses for her business finances, and Ms. Gallo's assistant told him to call Mr. Podesta at his home number and hung up. Mr. Podesta receive no phone calls at home from First USA Bank and, after calling First USA Bank to inquire, was informed that the only "Dave Shore" First USA Bank employed worked in Illinois and had not made any calls to Ms. Gallo or Mr. Podesta.
Shore denies making any calls to Ms. Gallo and claims his ex-wife orchestrated the harassment by having third parties make this and other calls to incriminate him. Shore also asserts that San Quentin's telephone records fail to show that any calls were made to Ms. Gallo's number on May 18, 2000 from the prison. A housing sergeant at San Quentin told Shore's parole agent that Shore worked as a volunteer clerk in an office with an unmonitored telephone line on May 18, 2000.
B. Procedural History
Contesting his nine-month parole revocation term, Shore sought review with the Board of Prison Terms, the California Superior Court, the California Court of Appeal, and the California Supreme Court, each of which denied Shore's petitions. Shore filed this federal petition for writ of habeas corpus on May 9, 2002.
Shore makes two challenges to his June 7, 2000 parole revocation: 1) that he was denied his due process and Sixth Amendment right to confront and cross examine witnesses when, at his parole revocation hearing, the hearing officer allowed Sandra Gunnett and Amy Vona to testify against him telephonically; and 2) that insufficient evidence existed at the parole revocation hearing to find that Shore made a harassing telephone call to Katherine Gallo.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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 the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b), (c). The parties agree that Shore exhausted his state court remedies for the claims in his petition.
C. Claims
1. Confrontation Claim
During Shore's June 7, 2000 parole revocation hearing, the hearing officer took the testimony of Amy Vona and Sandra Gunnett telephonically and allowed Shore to cross examine both at that time. The hearing officer found both Ms. Vona and Ms. Gunnett credible, found Shore not credible, and accordingly decided that Shore had made the harassing telephone calls to each, thus violating conditions of his parole. Shore contends that the state violated his due process and Sixth Amendment rights to confront adverse witnesses, as the hearing officer allowed Ms. Vona and Ms. Gunnett to testify by telephone rather than in person.
At the hearing, Shore's parole agent read aloud Ms. Vona's charges against Shore, which stated, "Ms. Vona indicated . . . that she is extremely fearful of Shore and will have great difficulty in coming to a Board of Prison Terms Hearing due to her fear of subject as well as financial concerns." Further, Ms. Vona's written testimony attached to the charge, which Shore's parole agent also read aloud at the hearing, stated that, "I do not want to be call [sic] to any of hearing [sic] as a witness in person, because I do not want Mr. Shore to see my face, also I have to earn money to make a living, since my husband can't work anymore, but I am available to testify by phone."
Shore's parole agent also told the hearing officer that Ms. Gunnett "indicated she was fearful to come but she didn't positively say that's why she would not be appearing." Ms. Gunnett communicated with the hearing officer and the parties at the hearing from her office at work. Ms. Kaliman, who appeared in person at the hearing, also testified regarding the alleged telephone call Shore made to Ms. Gunnett on April 28, 2000.
Although a parolee in a parole revocation hearing has less than "the full panoply of rights due a defendant" in a criminal prosecution, the minimal requirements of due process entitle a parolee to "the right to confront and cross-examine witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation[.])"Morrissey v. Brewer, 408 U.S. 471, 480, 489 (1972) (emphasis added). The Court explained, that "the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Id. at 489. "What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior." Id. at 484.
"In cases involving the Morrissey right to confrontation, the appellate court employs a process of balancing the releasee's right to confrontation against the Government's good cause for denying it." United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993). This Morrissey right to confrontation "must be contoured to `the specific circumstances presented[.]'" John v. United States Parole Comm'n, 122 F.3d 1278, 1284 (9th Cir. 1997) (quoting Martin, 984 F.2d at 311). In Martin, the Ninth Circuit held that district court violated a prisoner's confrontation right at the prisoner's supervised release revocation hearing by admitting the prisoner's urinalysis results into evidence solely upon a drug addiction counselor's testimony, rather than laboratory personnel's testimony, and by refusing to allow the prisoner to have the sample independently retested. The court found three non-exclusive factors important in weighing the prisoner's rights against the government's cause: 1) the relative importance of the evidence; 2) the opportunity to refute the evidence; and 3) the potential consequences of accepting the evidence as true. 984 F.2d at 311. The court held that the district court's "nearly complete denial" of the prisoner's opportunity to refute the evidence "weighed heavily" in the balance, and stated, "[h]ad [the prisoner] been given some opportunity — even if not the traditional opportunity to cross-examine a live witness — to refute this important evidence, then that opportunity could be considered in partial mitigation of his right to confrontation." Id. at 311-12.
The hearing officer "specifically [found] good cause for not allowing confrontation" of Ms. Vona for several reasons. Shore's parole agent informed the hearing officer that Ms. Vona was fearful of appearing personally at Shore's hearing and fearful of Shore "seeing her face." Also, the hearing officer found Ms. Vona's statements that Shore frightened her various times over the phone, threatened to file a lawsuit against her, told her he knew where she lived, and told her he planned to "get even" with "Attie Olson," credible. The hearing officer explicitly acknowledged Ms. Vona's fear of attending, as he wrote on the parole revocation hearing records regarding Ms. Vona's absence, "Fearful — Would not attend." Resp. Exh. B at p. 33.
Neither did the hearing officer violate Shore's confrontation right by allowing Ms. Gunnett to testify telephonically, as the hearing officer's good cause for denying face-to-face confrontation outweighed Shore's confrontation right. The hearing officer noted that she was not at the hearing because she was in a distant location, and he specifically wrote that she was "fearful" on the hearing records regarding her absence. Resp. Exh. B at p. 33.
Shore, relying on People v. Winson, argues that due process protects face-to-face cross examination in parole revocation hearings. 29 Cal.3d 711 (1981). However, Winson was a state court case and concerned the admission of preliminary hearing testimony evidence in lieu of live witness testimony, and thus denied the parolee all opportunity to confront the witness. 29 Cal.3d at 713-14. Furthermore, Winson supports the hearing officer's admittance of the telephonic testimony here, as the court explained that "the [confrontation] rule is not absolute and restricts rather than bars all hearsay. . . . If a witness is unavailable, the statement is admissible only if it bears adequate indicia of reliability." 29 Cal.3d at 717 (internal citations and quotations omitted). The hearing officer did not act improperly when he deemed Ms. Gunnett credible and found her testimony corroborated by other evidence.
Shore did not protest when informed that the witnesses would be available only by telephone. Had he done so, the record might have been better developed on the fearfulness issue.
The evidence of the harassing nature of Shore's calls to Ms. Vona strongly supported her claim, and the hearing officer's determination, that she would not attend because she was fearful. And, although Ms. Vona may not have understood the reference, the parole officer explained that the woman Shore inquired about when he spoke to Ms. Vona was a woman he had allegedly raped years ago. This would strongly suggest intimidation by Shore. Ms. Vona's reluctance to attend was understandable in light of both Shore's behavior and her desire to avoid circumstances in which Shore would learn what she looked like, which could have provided an avenue for future in-person harassment.
The procedure used at Shore's parole revocation hearing adequately satisfied the Morrissey confrontation rights. As Morrissey explains, the parole revocation process should be flexible enough to consider forms of evidence other than live, in-person testimony. Morrissey's endorsement of the use of evidence like letters and affidavits — objects which cannot be cross-examined at all — convinces the court that the telephonic testimony here allowed adequate confrontation. The two witnesses testified under oath and were subjected to cross-examination by Shore. The hearing officer did not violate Shore's confrontation right by requiring him to cross examine Ms. Vona and Ms. Gunnett telephonically rather than in person. Rather, the hearing officer acted properly and consistent with Morrissey's dictate that parole revocation hearings should remain "flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489.
2. Evidentiary Claim
At Shore's parole revocation hearing, Katherine Gallo testified that at about 7:00 p.m. on May 18, 2000, she witnessed her assistant receive a harassing telephone call on her home office telephone line from a male caller who identified himself as "Dave Shore from First USA Bank." Shore, denying that he made the call, asserted that his ex-wife had a third party make the call to incriminate him. Shore now argues that the hearing officer did not have sufficient evidence to decide that Shore made this call to Ms. Gallo's office. Shore states that San Quentin had custody of him on May 18, 2000; that San Quentin's telephone records do not report that any call had been made to Ms. Gallo from the prison; and that Ms. Gallo later admitted that she knew her phone number did not appear on the San Quentin records Shore showed her. Therefore, he argues, no evidence exists to support a finding that Shore made the alleged call to Ms. Gallo. Shore made this argument in his habeas petition to the California Superior Court of San Mateo County, which, on November 9, 2001, issued a four page opinion rejecting it and denying Shore's habeas petition.
A district court cannot grant federal habeas relief unless it finds that the state court's ruling "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000) (quoting 28 U.S.C. § 2254 (d)(2) and Williams (Terry) v. Taylor, 529 U.S. 362, 402-04, 409 (2000)). Also, a district court must presume that a state court's factual determinations are correct unless rebutted by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).
Sufficient evidence existed to support the hearing officer's finding that Shore violated his parole when he telephoned Ms. Gallo on May 18, 2000. The fact that Ms. Gallo's phone number fails to appear on the San Quentin phone records that Shore provided does not undermine the hearing officer's finding. Shore did not prove that at the hearing he had presented the telephone records of all telephones to which he had access on that day. Most importantly, a housing sergeant at San Quentin told Shore's parole agent that Shore worked as a volunteer clerk in an office with an unmonitored telephone line on May 18, 2000. Also, Ms. Gallo testified that Shore had, on a number of previous occasions, harassed her in such a manner that led her to believe that the May 18, 2000 call was consistent with Shore's behavior toward her. At the revocation hearing, Ms. Gallo suggested that even if Shore did not make the call directly, she believed that a third party at his behest could have done so. In light of the testimony from Ms. Gallo and her assistant that a telephone call had been received by someone claiming to be "Dave Shore," and in light of Shore's failure to prove at the hearing that the phone records he had were the records for all of the phones to which he had access, sufficient evidence existed to support the finding that Shore made the harassing call. Like the state court, this Court believes that evidence from an entirely different proceeding that occurred months later is not properly part of the equation in figuring out whether sufficient evidence supported the hearing officer's determination.
The San Mateo County Court's finding that the hearing officer had sufficient evidence to find that Shore made a harassing telephone call to Ms. Gallo on May 18, 2000 was not contrary to or an unreasonable application of clearly established federal law.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.