Opinion
C.A. No. 03-129 L
May 6, 2004
Report and Recommendation
Edward R. Vashey ("Vashey" or "petitioner"), pro se, filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a state court's adjudication that he violated the terms and conditions of his probation. The Attorney General of the State of Rhode Island, designated a party respondent, has objected to the petition. This matter has been referred to me pursuant to 28 U.S.C. § 636(b)(1)(B) for a report and recommendation. For the reasons that follow, I recommend that Vashey's petition for a writ of habeas corpus be denied and dismissed.
Background
In 1994, a state court convicted Edward R. Vashey of felony assault. For this crime, the state court sentenced him to a twelve year term of imprisonment, one year and eight months to serve with ten years and four months suspended with probation. Vashey served his time and was released on probation.
During his probationary period, on February 8, 2000, a criminal complaint was lodged against Vashey alleging that he had committed first degree child molestation. On February 11, 2000, Vashey was arrested on this charge and held without bail by a state District Court judge. The matter was transferred to the state's Superior Court where Vashey was presented as a probation violator under Rule 32(f) of the Superior Court Rules of Criminal Procedure and Vashey was assigned counsel from the public defender's office. Vashey's counsel was thereafter provided with a copy probation violation report, the criminal complaint, and affidavits from three police officers, detailing the nature of the alleged violation and underlying criminal offense.
The state ultimately amended the underlying charges from first degree sexual molestation to second degree child molestation, to which Vashey pleaded nolo contendere.
Ten days after his arrest, on February 21, 2000, a probation violation hearing was scheduled to commence to determine whether Vashey had violated his probation. However, Vashey's counsel requested and was granted numerous continuances in an effort to procure additional evidence. The matter was eventually reached for a hearing on July 18, 2000. During the course of a four day hearing, Vashey was represented by counsel at all times, given an opportunity to be heard and to present evidence, and given the opportunity to cross examine the witnesses presented against him. Thereafter, a hearing justice determined that Vashey violated the terms and conditions of his probation. The justice vacated Vashey's previously suspended sentence and sentenced him to serve ten years and four months of his imprisonment, with five years and four months suspended with probation.
Following his adjudication as a probation violator, Vashey appealed this determination to the Rhode Island Supreme Court. As a basis for his appeal, Vashey contended (1) his probation violation hearing was unjustly delayed in violation of the Sixth Amendment (2) he did not receive a probable cause hearing in violation of the due process clause of the Fourteenth Amendment; (3) some of his discovery requests were denied in violation of the due process clause of the Fourteenth Amendment; (4) the hearing justice mis-perceived the evidence; (5) the hearing justice illegally extended his sentence; and (6) his lawyer was ineffective. The state Supreme Court rejected his arguments and affirmed his adjudication as a probation violator. See State v. Vashey, 823 A.2d 1151 (R.I. 2003).
Vashey now has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his amended petition, Vashey indicates that he seeks to present to this court, as a basis for federal habeas relief, "the entire record of his probation/suspended sentence proceedings and his subsequent appeal of those processes. . . ." Amended Petition at 4. Vashey references his "Pre-Brief' filed with the state Supreme Court and the state Supreme Court's decision on the matter. Accordingly, this writer will address those issues presented to the state Supreme Court for this instant habeas review.
The Attorney General has objected to the petition, seeking dismissal. Vashey has provided a Response to the Attorney General's objection.
Discussion
A. Unexhausted Claims.
As a preliminary matter, prior to bringing a claim for habeas relief in federal court, Vashey must give the state courts an opportunity to act on each of his claims before he presents those claims to a federal court in a habeas petition. This is known as the exhaustion doctrine. See 28 U.S.C. § 2254(b)(1).
A petitioner in a habeas proceeding satisfies the exhaustion doctrine by fairly presenting his claims to the highest state court with jurisdiction to consider them. Keeney v. Tamayo-Reyes, 504 U.S. 1, 9 (1992); Picard v. Connor, 404 U.S. 270, 276 (1971). Only if the same factual and legal theory that forms the basis of the petitioner's habeas petition has been presented to state court will the petition be properly before the federal court. Scarpa v. Dubois, 38 F.3d 1, 6 (1st Cir. 1994); Nadworny v. Fair, 872 F.2d 1093, 1096 (1st Cir. 1989). A claim is not considered exhausted if the petitioner "has the right under the law of the state to raise, by any procedure available, the question presented." 28 U.S.C. § 2254(c).
Here, Vashey never properly presented his claims of an illegally extended sentence and ineffective assistance of counsel to the state courts for consideration. Indeed, the Rhode Island Supreme Court, in ruling on Vashey's direct appeal, found that these two claims were not properly presented to the state trial court. See Vashey 823 A.2d at 1156. Thus, the state Supreme Court determined that it would not rule on their merits yet and directed Vashey pursue theses two claims by means of the proper avenues available. Id.
Accordingly, since these two claims — claims of an illegal sentence and ineffective assistance of counsel — have yet to be properly the before a state court for consideration, and since an avenue exists in which to do so, see R.I. Gen. Laws 10-9.1-1 et seq, these two claims are unexhausted and should be dismissed on that basis.
The Court notes that Vashey has presented a "mixed petition," which forms a basis for dismissal of the entire petition. See Rose v. Lundy, 455 U.S. 509 (1982). However, this writer will address the merits of the exhausted claims now.
B. Exhausted Claims.
Next, Vashey presents four claims that the state Supreme Court addressed on the merits and rejected. Vashey claims he is entitled to federal habeas relief on these claims. I reject his contentions.
1. Habeas Corpus Standard
The Anti-terrorism and Effective Death Penalty Act ("AEDPA") significantly limits the scope of federal habeas review. AEDPA precludes the granting of habeas relief to a state prisoner, unless the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254 (d)(1). A decision is "contrary to" federal law if the state court applies a legal principle different from the governing principal set forth in Supreme Court cases, or if the state court decides the case differently from a Supreme Court case on materially indistinguishable facts. Bell v. Cone, 535 U.S. 685, 694 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)).
To hold that a state court's decision is an "unreasonable application" of clearly established federal law, the federal habeas court must find that "the state court correctly identifie[d] the governing legal principle from [Supreme Court] decisions but unreasonably applie[d] it to the facts of the particular case." Bell 535 U.S. at 694. In making this determination, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409. The Court should be mindful that in order to grant habeas relief, the state court decision must be objectively unreasonable as opposed to merely incorrect. Williams, 529 U.S. at 411 ("A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."). Finally, the court's focus "is not how well reasoned the state court decision is, but whether the outcome is reasonable." Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001), cert. denied, 534 U.S. 925 (2001).
AEDPA also provides for habeas relief when the state court decision 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)(2). However, the federal habeas court shall presume that the state court's determination of factual issues is correct and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). 2. Sixth Amendment Claim
As his first basis for relief, Vashey claims that his probation violation hearing was unjustly delayed, allegedly in violation of the Sixth Amendment. Thus, Vashey is claiming that his right to a speedy trial was infringed.
The right to a speedy trial is grounded in the Sixth Amendment. See U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . ."). "The right is fundamental and is imposed on the states by the due process clause of the Fourteenth Amendment." Klopfer v. North Carolina, 386 U.S. 213, 223 (1967). The right is to a speedy trial, not a speedy probation revocation hearing. Indeed, the U.S. Supreme Court has never held that "a prisoner subject to a probation violation detainer has a constitutional right to a speedy probation revocation hearing . . . and it is not clear that the purpose of vindicating a prisoner's constitutional right to a speedy trial is applicable at all in the context of a probation-violation detainers."Carchman v. Nash, 473 U.S. 716, 731, n. 10 (1985). Thus, Vashey can not demonstrate that the state court's decision was "contrary to," or, an "unreasonable application," of clearly established federal law as determined by the U.S. Supreme Court, since it is not clear that the right to a speedy trial is at all applicable in a probation violation context.
Assuming arguendo that a constitutional right to a speedy trial is implicated in the probation violation context, Vashey has no footing upon which to sustain a claim since he was in fact the cause of the delay. The state Supreme Court found, as fact, that "the responsibility for any delay lies with Vashey because it was he who repeatedly continued the matter in an attempt to procure discovery to which he was not entitled."See Vashey, 823 A.2d at 1155. The state court's determination of facts are presumed correct unless rebutted by clear and convincing evidence.See 28 U.S.C. § 2254 (e)(1). Here, Vashey has failed to set forth any evidence demonstrating that factual issue is incorrect.
Accordingly, even if Vashey had a Sixth Amendment right to a speedy probation violation hearing, this Court would be hard pressed to find a constitutional violation, let alone one which would justify habeas relief, where, as here, Vashey is the one responsible for the delay. Thus, I find that Vashey's Sixth Amendment claim to be without merit and recommend that it be dismissed.
3. Fourteenth Amendment Claims
Next, Vashey presents two claims under the due process clause of the Fourteenth Amendment. Vashey first claims that the state court erred by not conducting a probable cause hearing, contrary to Gagnon v. Scarpelli, 411 U.S. 778 (1973). Second, Vashey contends that the state court's denial of some of his discovery requests was unreasonable. I will discuss each claim in turn.
a. Whether the state Supreme Court's Decision Is Contrary to Gagnon v. Scarpelli , 411 U.S. 778 (1973), Due to its Failure to Require a Probable Cause Hearing.
As his first basis for relief under the Fourteenth Amendment, Vashey contends that he was entitled to a probable cause hearing in a timely fashion after being presented as a probation violator. Vashey claims that without requiring a probable cause hearing, the state court's decision is contrary to Gagnon v. Scarpelli, 411 U.S. 778 (1973). I disagree.
Probation revocation, like parole revocation, is not a stage of a criminal prosecution. Gagnon, 411 U.S. at 781-82. Revocation deprives an individual not of the absolute liberty to which every citizens is entitled but only of the conditional liberty properly dependent on special restrictions. Id. In Morrissey v Brewer, the Supreme Court held that alleged parole violators are entitled to two hearings, one a preliminary hearing at the time of arrest and detention to determine whether there is probable cause to believe that the accused committed a violation of his parole, and the other somewhat more comprehensive hearing prior to the making of the final revocation decision. Morrissey v. Brewer, 408 U.S. 471, 480 (1972). The Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973), has applied this approach to alleged probation violators, to ensure a vindication of their due process rights.
In Gagnon, Gerarld Scarpelli had pleaded guilty to armed robbery in Wisconsin in July 1965 and the trial court there sentenced him to fifteen years imprisonment, but suspended the sentence and placed him on probation for seven years. A few weeks later, on August 6, 1965, Scarpelli was apprehended by Illinois police, who had surprised him in the course of a burglary of a house. His probation was thereafter summarily revoked by the Wisconsin Department of Probation, without a hearing. Scarpelli was incarcerated at a state prison and began serving the fifteen year sentence for the probation violation. Scarpelli thereafter filed a writ of habeas corpus, contending that the lack of a hearing prior to the revocation of his probation deprived him of due process under the Fourteenth Amendment. The U.S. Supreme Court agreed, finding that a probation violator is entitled to a "preliminary and a final revocation hearing, under the conditions set forth in Morrissey v. Brewer." Gagnon, 411 U.S. at 782, citing Morrissey, 408 U.S. at 489.
Here, there is no dispute that Vashey did not receive a prompt probable cause hearing. Rather a prompt full hearing was scheduled within ten days of his arrest and detention. The state Supreme Court found, in addressing this issue, that
nothing in [Gagnon] purports to interdict a combined revocation and sentencing hearing at which the alleged violator receives the full panoply of due process rights mandated by Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). That is because no constitutional purpose would be served by bifurcating our present unitary judicial violation hearing, at which an alleged violator is afforded due process rights equal or superior to those afforded in a [Gagnon] final hearing. Neither the federal nor our own state constitution requires empty ceremonies. Vashey, 823 A.2d at 1155.Gagnon and Morrissey are primarily concerned with ensuring that an alleged probation/parole violator receives a fair proceeding consistent with the due process clause. As the U.S. Supreme Court found in Gagnon, a prompt probable cause hearing followed by more comprehensive final revocation hearing is sufficient to satisfy the due process clause. However, nothing in Gagnon nor Morrissey prohibits a state from combining those hearings into one, prompt full hearing, where all the rights set forth in Gagnon and Morrissey are provided. The U.S. Supreme Court, while stating that a prompt probable cause hearing should occur upon arrest and detention of an alleged probation violator, does not forbid the state to have, in its stead, a prompt full hearing where the alleged violator is afforded all of the rights enunciated in Gagnon and Morrissey. No probable cause hearing is required where a prompt, full hearing was scheduled to commence, as here. Accordingly, I find that the state Supreme Court's decision is not contrary to federal law.
Assuming arguendo that a probable cause hearing was required here, Vashey can claim no harm from not having one. The undisputed facts demonstrate that Vashey had a full hearing that lasted four days. Vashey received a full hearing on the merits of the probation violation, after which he was adjudicated a violator. Thus, no harm resulted from the lack of a probable cause hearing.
Since Vashey would not be entitled to habeas relief even if a probable cause hearing was required, I find Vashey's claim to be without merit and recommend that it be dismissed.
b. Whether the state Supreme Court's Decision Regarding the Denial of Some of Vashey's Discovery Requests Was Unreasonable.
Next, Vashey asserts that some of his discovery requests were improperly denied in violation of the Fourteenth Amendment. The state Supreme Court, relying upon state court decisions, found no Fourteenth Amendment violation. After a review of those state court decisions, it is clear that they are not "contrary to" federal law. Thus, the instant claim shall be analyzed under the "unreasonable application" prong of the habeas corpus standard.
The U.S. Supreme Court determined that an alleged probation violator is entitled to (a) written notice of the claimed violations; (b) disclosure of the evidence against him; (c) an opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examining adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a neutral and detached hearing officer; and (f) a written statement by the fact finder as to the evidence relied upon and reasons for revoking probation. See Gagnon 411 U.S. at 786, citing Morrissey at 408 U.S. 489. Here, the state Supreme Court found that Vashey received "the minimum due process requirements for a probation violation hearing." Vashey, 823 A.2d at 1155.
As it relates to discovery, the undisputed facts demonstrate that, prior to the hearing, Vashey received the state's probation violation report. Additionally, Vashey was provided with a copy of the criminal complaint lodged against him relating to the child molestation charges, affidavits from three police officers recounting the circumstances that prompted the charges, and a copy of his own criminal history. Moreover, Vashey's counsel later procured a copy of a taped interview with the victim and DCYF records relating to the victim. Thus, Vashey received nothing short of full disclosure of the evidence that would be used against him, prior to the violation hearing. Furthermore, Vashey fails to articulate to this Court what evidence was withheld that he thinks he was entitled.
Accordingly, since the undisputed facts indicate that Vashey received notice of the factual basis for the probation violation charges and since the evidence that was used against Vashey was disclosed to him prior to the hearing, I find that Vashey's claim that he was denied adequate discovery to be without merit. Consequently, I find the state court's decision on this issue was not an unreasonable application of Gagnon, 411 U.S. 778.
4. Whether the Hearing Justice Mis-perceived the Evidence.
Lastly, Vashey claims that the hearing justice mis-perceived the evidence. Thus, Vashey is asserting, in habeas parlance, that the state courts made "an unreasonable determination of the facts in light of the evidence presented. . . ." See 28 U.S.C. § 2254(d)(2). To succeed on such a claim is daunting since "a determination of a factual issue made by a state court shall be presumed correct," and the habeas petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." See 28 U.S.C. § 2254(e)(1).
In determining that Vashey violated his probation, that state Supreme Court noted that the hearing justice expressly found the victim's testimony to be credible, rejecting Vashey's assertion that she had been coached, and found that there was ample record support for the finding that Vashey violated the terms and conditions of his probation. Vashey 823 A.2d at 1155. Here, in this instant habeas petition, Vashey has presented no evidence to refute the state court's factual determinations or findings. Moreeover, "[i]t would be wholly inappropriate for a federal court to repastinate soil already plowed or delve into the veracity of the witnesses on habeas review." Sanna v. Dipaola, 265 F.3d 1, 10 (1st Cir. 2001). Accordingly, Vashey's claim that the hearing justice mis-perceived the evidence should fail. I so recommend.