Opinion
No. 3-03-CV-2806-G.
July 15, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a federal inmate pursuant to 28 U.S.C. § 2241. Cohee is currently confined at FCI Seagoville after the United States Parole Commission revoked the ten-year special parole term previously imposed by the United States District Court for the Northern District of California on October 22, 1986, in Cause No. CR-85-0702.
Statement of the Case: Following completion of terms of imprisonment imposed by the California federal court and a subsequent conviction for escape, Cohee's special parole term commenced on or about May 22, 1997 (See Respondent's Appendix at 12). On September 29, 1999, the United States Probation Office for the Northern District of Texas, which was supervising Petitioner's special parole term wrote the Parole Commission, recommending that a parole violator's warrant be issued (Id. at 12-14). In response to the letter the Commission issued a warrant on October 6, 1999 (Id. at 15).
After Cohee was arrested a probable cause hearing was held on August 23, 2000, at the conclusion of which the case analyst found probable cause, and Petitioner subsequently appeared for a revocation hearing before a Parole Commission hearing examiner on October 17, 2000. See Appendix at 27-31. At the conclusion of the hearing the examiner recommended that Petitioner's special parole term be revoked. On November 6, 2000, the Parole Commission revoked the parole (Id. at 38).
Cohee appeared against before a Parole Commission hearing examiner on September 17, 2002, upon his claim of new and significant information which he claimed warranted a change in the Commission's November 6, 2000, determination. At the conclusion of the hearing the examiner recommended that no change be made (Appendix 41-42), and on September 30, 2002, the Parole Commission declined to change its prior action (Id. at 44).
Cohee appealed the Parole Commission's determination to the National Appeals Board (Id. at 45-52), and on February 10, 2003, the National Appeals Board affirmed the decision to not change the terms of the Parole Commission's action on November 6, 2000.
Findings and Conclusions: Cohee seeks habeas corpus relief on the grounds that the initial determination to revoke his special term of parole and the National Appeal Board's refusal to modify the terms of the revocation determination were unjustified.
Specifically he relies on the fact that one of the officers involved in his arrest on September 17, 1998, which resulted in criminal charges being filed was himself subsequently arrested on D.W.I. and drug possession charges, and convicted of D.W.I. and that Petitioner's indictment for illegal investment in No. F-98-852832 was dismissed on motion of the state prosecutor on March 5, 2001.
Judicial review of a decision to revoke parole "is quite circumscribed." Villarreal v. United States Parole Commission, 985 F.2d 835, 839 (5th Cir. 1993). Due process only requires that there be "`some evidence' in the record to support the Commission's decision." Id. at n. 3. A revocation proceeding is not part of a criminal prosecution. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600 (1972). The burden of proof in a parole revocation hearing is by a preponderance of the evidence, a considerably lower standard than reasonable doubt which governs criminal trials. Villarreal, 985 F.2d at 839. All that is required for revocation is that the evidence and facts reasonably demonstrate that the person's conduct has not been as good as required by the terms and conditions of his release.See Mack v. McCune, 551 F.2d 251, 254 (10th Cir. 1977).
The Constitution does not bar parole authorities from considering criminal activities for which the parolee has not even been charged. Maddox v. United States Parole Commission, 821 F.2d 997, 999 (5th Cir. 1987) ("the commission may consider . . . allegations of criminal activity for which the prisoner has not even been charged."); see also Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (to lawfully revoke parole, an arrest, charge and ultimate conviction of a new criminal offense are not required). Petitioner has not shown that the Commissioner's actions in this matter were "flagrant, unwarranted, or unauthorized." Maddox, 821 F.2d at 1000 (quoting Page v. United States Parole Commission, 651 F.2d 1083, 1085 (5th Cir. 1981)).
As reflected in the administrative record, the police officer's own legal problems were known to the Parole Commission prior to the hearing on October 17, 2000. See Appendix at 24. The hearing examiner considered the arrest reports prepared by the offending officer (Id. at 32-36), but also received the testimony of Detective Jose A. Rivera who participated in Petitioner's arrest on September 17, 1998. As noted by the examiner Detective Rivera provided detailed testimony and was subject to cross-examination by Cohee's attorney. Id. 28-29. Absent testimony which contradicted the contents of the written report coupled with the live testimony of Detective Rivera it is clear that there was "some evidence" in the record to support the Commission's determination that Cohee committed a violation of Condition No. 6 of the terms of his special parole. Maddox, 821 F.2d at 1000.
The fact that his state criminal charge was subsequently dismissed does not render the Parole Commission's prior decision unsupported by "some evidence". The reasons why the prosecution chose not to pursue this charge are not disclosed in the State's motion. Moreover, as noted above, a criminal conviction need not be obtained to support a decision revoking parole.
Finally, at the revocation hearing as well as in his present petition, Cohee concedes that he was guilty of the first charge alleged in the parole warrant application. E.g. see Appendix at 20-21; 28-29. In light of his admission, this fact, independent of the second charge, provides an adequate basis for revoking his term of special parole. See United States v. McCormick, 54 F.3d 214, 219, 219, n. 3 (5th Cir. 1995) (Where there is an adequate basis for the district court's discretionary action of revoking probation, the reviewing court need not decide a claim of error as to other grounds that had been advanced as a cause of revocation.")
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be denied.