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holding that "[a]ny error at the preliminary hearing has been rendered moot by the formal revocation hearing"
Summary of this case from Brown v. JacksonOpinion
01-CV-71851-DT
September 3, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Delbert Pierson, a state prisoner currently confined at Camp Lehman in Grayling, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 and 2254, alleging that he is incarcerated in violation of his constitutional rights. Petitioner challenges his March, 1999 state parole revocation, contending that he was denied due process because: (1) his parole agent failed to conduct a proper investigation under state law, (2) the hearing examiner and parole agent violated his state statutory and administrative rights at the preliminary hearing, (3) he was denied the effective assistance of counsel at the formal revocation hearing, (4) the administrative law examiner and acting prosecutor/office of field programs violated his state statutory rights during the formal revocation hearing, (5) evidence was concealed during the formal revocation hearing and state court proceedings, and (6) the parole board had a pecuniary interest in revoking his parole. For the reasons stated below, the petition for writ of habeas corpus is DENIED.
At the time he initiated this action, Petitioner was incarcerated at the Ionia Temporary Correctional Facility where Carmen Palmer is the warden.
I. Facts and Procedural History
Petitioner was serving a 10-30 year sentence for unarmed robbery when he was released on parole on March 28, 1997. On August 27, 1998, he was charged with two parole violations arising from an August 16, 1998 incident in which he allegedly assaulted his girlfriend, Sandra Holland, by striking her in the head with his fists during a dispute over another woman. Petitioner left Holland's home, but returned later with three other men who possessed weapons in order to retrieve some of his belongings. Police responded to the scene and arrested Petitioner as he was fleeing the area. Petitioner was criminally charged for the incident, but those charges were dismissed when a witness (Holland) failed to appear.
A parole violation report was issued on September 14, 1998. A preliminary hearing on the parole violation charges was conducted by Hearing Examiner Celia L. Doyle on October 8, 1998. Following that hearing, Examiner Doyle concluded that there was probable cause to support the charges. A warrant was issued against Petitioner on October 27, 1998. A supplemental parole violation report was issued on December 3, 1998, indicating that Petitioner's criminal case was dismissed. Petitioner was arraigned on the charges on January 5, 1999 and informed of his parole revocation hearing rights. Legal counsel was also appointed.
A formal revocation hearing on the charges was conducted before Administrative Law Examiner Gary Kasenow on January 11, 1999 and February 23, 1999. At that hearing, witnesses Sandra Holland, Vershaun Love, and Police Officer Kevin Counts testified about the events giving rise to the parole violation charges. Petitioner was represented by counsel who had an opportunity to question the witnesses and to present evidence and arguments on Petitioner's behalf. On March 3, 1999, Examiner Kasenow issued a report crediting Sandra Holland's version of the events and finding Petitioner guilty of assault and of being in the company of men who he knew to possess a weapon. On March 29, 1999, the Michigan Parole Board issued a decision revoking Petitioner's parole and continuing his incarceration for 24 months before further parole consideration. The Michigan Parole Board cited Petitioner's assaultive activity while on parole and his prior assaultive crime. Petitioner sought rehearing of the decision, but his request was apparently denied.
Petitioner filed a complaint for habeas corpus appealing the Parole Board's revocation decision to the Chippewa County Circuit Court, which was dismissed upon the respondent's motion for summary disposition. Pierson v. Michigan Parole Bd., No. 99-4482-NZ (Chippewa Co. Cir. Ct. Jan. 11, 2000). Petitioner's request for rehearing was denied on January 27, 2000. Petitioner also filed a motion for relief from judgment, which was denied on March 31, 2000.
Petitioner then filed a complaint for habeas corpus with the Michigan Court of Appeals challenging the Parole Board's revocation decision, which was denied in an unexplained order. Pierson v. Department of Corrections, No. 226636 (Mich.Ct.App. Aug. 23, 2000). Petitioner filed a delayed application for leave to appeal with the Michigan Supreme Court, which was denied in a standard order. Pierson v. Department of Corrections, 463 Mich. 984 (2001).
Petitioner filed the present habeas petition on May 21, 2001, raising the following claims as grounds for relief:
I. His parole revocation process was rendered void where his parole agent failed to conduct a proper investigation pursuant to Michigan Constitution 1963 art. 1, § 17, MCL 791.231 and Operating Procedure 06.06.102-A in violation of his due process rights under the 14th Amendment to the United States Constitution.
II. His parole revocation process and preliminary decision were rendered void where the preliminary parole hearing examiner and parole agent violated several of his statutory and administrative rights pursuant to MCL 791.238, 791.239(A) et seq. and R 791 7740-50, in violation of the 14th Amendment to the United States Constitution.
III. His parole revocation formal hearing was rendered void where he was deprived of his right to effective assistance of counsel when counsel failed to conduct a reasonable investigation and obtain documents pursuant to MCL 791.240(A)(1) et seq. in violation of the 6th and 14th Amendments to the United States Constitution.
IV. His parole revocation proceedings and decision were rendered void where the administrative law examiner and acting prosecutor/office of field programs violated several of his statutory rights pursuant to MCL 791.240(a)(2)(b) and (d) and the 14th Amendment to the United States Constitution.
V. Respondent concealed evidence during the parole revocation process and during the ensuing lower court proceedings thereby making both fundamentally unfair pursuant to MCL 791.240(a)(6) and 791.254 (d) and the 14th Amendment to the United States Constitution.
VI. His parole revocation proceedings were rendered void where the parole board had a pecuniary interest in revoking his parole thereby preventing the preliminary and formal revocation hearing from being conducted by neutral and detached decision-makers per MCL 791.231(a) and in violation of his due process rights under the 14th Amendment to the United States Constitution.
Respondent filed an answer to the petition on November 19, 2001, asserting that it should be denied for lack of merit.
II. Analysis
A. Parole Agent Investigation Claim
Petitioner first claims that he is entitled to habeas relief because his parole agent failed to conduct a proper investigation of the parole violation incident as required by Mich. Const. 1963, art. 1, § 17, Mich. Comp. L. § 791.231, and Operating Procedure 06.06.102-A.
In Morrissey v. Brewer, 408 U.S. 471 (1972), the United States Supreme Court held that the requirements of due process apply to the revocation of an individual's parole. The Supreme Court held that a parolee is entitled to two hearings. First, due process requires a `preliminary hearing' to determine whether there is probable cause or reasonable ground to believe that the parolee has committed acts that would constitute a violation of parole conditions. Id. at 485 (citations omitted). Second, a parolee is entitled to a revocation hearing prior to the final decision by the parole authority. Id. at 487-88. The procedures required at this hearing include written notice of the alleged parole violations, disclosure of evidence against the parolee, an opportunity to be heard in person and to present witnesses and documentary evidence, the right to confront and cross-examine adverse witnesses, a "neutral and detached" hearing body such as a traditional parole board, and a written statement by the fact-finders as to the evidence relied on and the reasons for revoking parole. Id. at 489.
In challenging his parole agent's investigation of the incident at issue, Petitioner relies solely upon alleged violations of state law. However, even if the parole agent's investigation failed to comport with Michigan statutory or administrative requirements, Petitioner is not entitled to habeas relief on such a basis. Federal habeas corpus relief may not be granted based upon perceived violations of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). State-created administrative or statutory parole procedural rights do not create federal due process rights in having those procedures followed. See, e.g., Sweeton v. Brown, 27 F.3d 1162, 1164-65 (6th Cir. 1994). Petitioner only alleges a state law violation with respect to the parole agent's investigation. He is thus not entitled to relief on this claim.
B. Preliminary Hearing Claim
Petitioner next asserts that he is entitled to habeas relief because the preliminary hearing examiner and parole agent violated several of his statutory and administrative rights under Mich. Comp. L. § 791.239 (A) et seq. and R. 791 7740-50 during the preliminary hearing process. Petitioner again bases his claim for habeas relief upon perceived violations of state statutory and administrative law which do not warrant habeas relief. See Estelle, 502 U.S. at 67-68; Sweeton, 27 F.3d at 1164-65. Moreover, the record indicates that there was probable cause or reasonable ground to believe that Petitioner committed acts which constituted a violation of his parole conditions as required by Morrissey, 408 U.S. at 485. Ms. Holland's testimony, as well as police reports and hospital records, established probable cause to believe that Petitioner assaulted Ms. Holland and was in the company of armed men in violation of his parole.
Lastly, the Court notes that Petitioner is incarcerated pursuant to the formal revocation hearing that was conducted with respect to the violation charges, not the preliminary hearing. Any error at the preliminary hearing has been rendered moot by the formal revocation hearing. See Gerstein v. Pugh, 420 U.S. 103, 119 (1975) (citing Frisbie v. Collins, 342 U.S. 519 (1952); Ker v. Illinois, 119 U.S. 436 (1886) (it is an "established rule that illegal arrest or detention does not void a subsequent conviction.")). Petitioner is thus not entitled to relief on this claim.
C. Ineffective Assistance of Counsel Claim
Petitioner next claims that he was denied the effective assistance of counsel because counsel failed to conduct an adequate investigation and obtain documents. In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court set forth a two-pronged test for determining whether a habeas petitioner has received the ineffective assistance of counsel. First, a petitioner must prove that counsel's performance was deficient. This requires a showing that counsel made errors so serious that he or she was not functioning as counsel as guaranteed by the Sixth Amendment. 466 U.S. at 687. Second, the petitioner must establish that counsel's deficient performance prejudiced the defense. Counsel's errors must have been so serious that they deprived the petitioner of a fair trial or appeal. Id.
With respect to the performance prong, a petitioner must identify acts that were "outside the wide range of professionally competent assistance" in order to prove deficient performance. Id. at 690. The reviewing court's scrutiny of counsel's performance is highly deferential. Id. at 689. The court must recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Id. at 690. The petitioner bears the burden of overcoming the presumption that the challenged actions might be considered sound trial strategy. Id. at 689.
To satisfy the prejudice prong under Strickland, a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is one that is sufficient to undermine confidence in the outcome. Id. In Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993), the Supreme Court observed that "an analysis focusing solely on outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable is defective." The United States Court of Appeals for the Sixth Circuit has thus concluded that a reviewing court should focus on whether counsel's alleged errors "have undermined the reliability of and confidence in the result." McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th Cir. 1996). "On balance, the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the [proceeding] cannot be relied on as having produced a just result." Id. at 1311-12 (quoting Strickland, 466 U.S. at 686).
Petitioner in this case cannot establish that counsel's performance was deficient. Petitioner has not shown that counsel failed to conduct a reasonable investigation of the incident or failed to review the warrant. Petitioner's assertions that un-produced witnesses would have provided exculpatory information or that the warrant was invalid are conclusory and unsupported by the record before this Court. Conclusory allegations, without evidentiary support, do not provide a basis for habeas relief. See, e.g., Workman v. Bell, 160 F.3d 276, 287 (6th Cir. 1998) (conclusory allegations of ineffective assistance of appellate counsel do not warrant habeas relief); Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3rd Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient basis to hold an evidentiary hearing in habeas proceedings).
Additionally, Petitioner has not established a violation of the 45-day rule. As noted, federal law requires that a parole revocation hearing be conducted within a reasonable time. Morrissey, 408 U.S. at 488. It is not a violation of a parolee's constitutional rights to delay a parole revocation hearing until criminal charges concerning the underlying conduct are adjudicated. Gaddy v. Michael, 519 F.2d 669, 674-75 (4th Cir. 1975); Heath v. United States Parole Comm'n., 526 F. Supp. 584, 585 (W.D.N.Y. 1981). In Petitioner's case, he was arrested and taken into custody on criminal charges arising from the incident on August 16, 1998. A preliminary parole revocation hearing was conducted on October 8, 1998 while Petitioner was incarcerated. A warrant was issued on October 27, 1998 after a probable cause determination had been made. Petitioner, however, who remained incarcerated on the criminal charges was not available until December 2, 1998. The formal parole revocation hearing was conducted on January 11, 1999 and, with defense consent, continued on February 23, 1999. Given these circumstances, it cannot be said that any delay in conducting the parole revocation hearing was unreasonable. The formal parole revocation hearing was conducted within a reasonable time after the criminal matter was resolved. Petitioner does not allege that he was prejudiced in his ability to defend the parole violation charges because of the alleged delay in proceeding with the revocation hearing. See Taylor v. Ruffino, 19 F.3d 19, 1994 WL 84932 (6th Cir. 1994) (habeas relief not warranted where petitioner failed to show that revocation hearing delay actually prejudiced him); Villarreal v. United States Parole Comm'n., 985 F.2d 835, 837 (5th Cir. 1993) (154-day delay between arrest and final hearing did not violate due process absent showing of prejudice); Meador v. Knowles, 990 F.2d 503, 506 (9th Cir. 1992) (due process violated only when revocation hearing delay is both unreasonable and prejudicial); Heath v. United States Parole Comm'n., 788 F.2d 85, 89 (2nd Cir. 1986) (predicating habeas relief upon showing of prejudice or bad faith).
Petitioner also cannot establish that he was prejudiced by counsel's alleged deficient performance. The record reveals that Ms. Holland, her niece, and a police officer appeared at the revocation hearing, and that police and hospital records were produced. Such evidence established that Petitioner committed the charged parole violations. Petitioner has not shown that the admission of additional evidence would have affected the outcome of the hearing. This Court is not convinced that counsel's alleged errors undermined the reliability of the proceedings. Petitioner is therefore not entitled to habeas relief on this claim.
D. Failure to Present Evidence Claim
Petitioner also claims that he is entitled to habeas relief because the authorities failed to produce witnesses and evidence that he requested. Pursuant to the Supreme Court's directives in Morrissey, a parolee is entitled to present witnesses and documentary evidence on his behalf. 408 U.S. at 489. An analogous right exists in the Sixth Amendment's right to compulsory process. However, the right of compulsory process is not absolute. United States v. Valenzuela-Bernal, 458 U.S. 858, 867-72 (1982). To establish a violation of the right to compulsory process, Petitioner must show that the evidence he sought to introduce was material and favorable to his defense. Id. at 867-72; Cunningham v. Stegall, 13 Fed. Appx. 286, 290-91, 2001 WL 700843, *3 (6th Cir. 2001); United States v. Cruz-Jiminez, 977 F.2d 95, 100 (3rd Cir. 1992). "Evidence is material only if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact." Cruz-Jiminez, 977 F.2d at 100.
Petitioner claims that he sought to have additional witnesses produced to testify concerning an alleged prior confrontation with Ms. Holland. He also claims that hospital records and a polygraph examination report should have been introduced into evidence. Petitioner, however, has not shown that such additional information would have been material and favorable to the defense. First, he has not presented any witness statements concerning the alleged prior confrontation with Ms. Holland in support of his claim. Moreover, the fact that such a prior confrontation may have occurred would not absolve him of the charged violations, and Petitioner's own testimony provided the hearing examiner with a sufficient basis to judge Ms. Holland's credibility. Second, contrary to Petitioner's assertion, Ms. Holland's hospital records were introduced at the revocation hearing. Further, the hearing examiner noted that one document indicated that Ms. Holland reported that she was assaulted by an unknown person. Third, as to the polygraph, the Court notes that polygraph test results are viewed with great skepticism, see United States v. Thomas, 167 F.3d 299, 308 (6th Cir. 1999) (recognizing the court's "long-held opinion that the results of a polygraph are inherently unreliable"), and are generally not admissible in criminal proceedings. Moreover, the polygraph results submitted by Petitioner do not fully address the conduct which resulted in the parole violation charges. Petitioner has not established that the additional testimony or evidence would have affected the Parole Board's judgment or changed the outcome of his revocation hearing. He is thus not entitled to habeas relief on this claim.
E. Incomplete Recording/Transcription Claim
Petitioner further asserts that he is entitled to habeas relief because portions of his formal revocation hearing were not recorded and/or transcribed. To the extent that Petitioner premises this claim upon a perceived violation of state law, he is not entitled to federal habeas relief. See Estelle, 502 U.S. at 67-68; Sweeton, 27 F.3d at 1164-65. Moreover, a defective hearing tape is not a fatal flaw in a parole revocation proceeding. Glumb v. Honstad, 891 F.2d 872, *873-74 (11th Cir. 1990) (citing Baker v. Wainwright, 527 F.2d 372, 378 n. 23 (5th Cir. 1976); Hrynko v. Crawford, 402 F. Supp. 1083, 1085 (E.D. Pa. 1975)). The Supreme Court requires that fact-finders provide a written statement of the evidence that they relied upon as well as the reasons for revoking parole. Morrissey, 408 U.S. at 481. The hearing report prepared by the examiner satisfies this requirement and provides a sufficient record for a review of the proceedings. Hrynko, 402 F. Supp. at 1087. The Court is unaware of any federal decision requiring a verbatim transcript of parole revocation proceedings.
In a criminal case, due process requires that a defendant be provided with a transcript of a prior proceeding when that transcript is needed for an effective defense or appeal. See, e.g., Britt v. North Carolina, 404 U.S. 226, 227 (1971). However, a state prisoner seeking federal habeas must demonstrate prejudice due to a missing transcript before a constitutional violation of a right to a fair appeal will be found. Bransford v. Brown, 806 F.2d 83, 86 (6th Cir. 1986); accord White v. Florida, 939 F.2d 912, 914 (11th Cir. 1991); Mitchell v. Wyrick, 698 F.2d 940, 941-42 (8th Cir. 1983). Mere speculation that the transcribed testimony was necessary for a fair appeal precludes a finding of a constitutional violation by this Court. See Bransford, 806 F.2d at 86. Even assuming that under some circumstances the absence of a complete recording or transcript in a parole revocation case may create sufficient prejudice to justify a new revocation hearing, Petitioner has failed to make such a showing in this case. He is thus not entitled to habeas relief on this claim.
F. Parole Board Bias Claim
Lastly, Petitioner asserts that the Michigan Parole Board is not a "fair and neutral" decision-maker. In the parole revocation context, the neutrality requirement is satisfied if the revocation decision is made by "someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." Morrissey, 408 U.S. at 486. Neutrality does not require civil service protection, or employment by a different agency, a law degree, or election or appointment as a judicial officer. Id. Petitioner does not allege that any of the parole board members who denied him parole release were responsible for his arrest or prosecution, or stated prior to his parole consideration hearing that they considered him unfit for parole release. Petitioner has thus not shown he was deprived of a hearing before a neutral and detached decision-maker.
"[T]he Supreme Court has held that the Fourteenth Amendment right to due process is certainly compromised where the decision maker has a `direct, personal, substantial pecuniary interest' in the proceedings." Depiero v. City of Macedonia, 180 F.3d 770, 777 (6th Cir. 1999) (quoting Tumey v. Ohio, 273 U.S. 510, 523 (1927)). In Tumey the direct, personal, substantial pecuniary interest in the outcome of the proceedings was cash payments the mayor (who also functioned as a judge) received when a defendant was convicted, but did not receive if the defendant was acquitted. Petitioner cannot show such a pecuniary interest. Petitioner claims that the 1992 amendment to Mich. Comp. Laws § 791.231 a, which removed parole board members from the protection of the State Civil Service Act and authorized the director of the Michigan Department of Corrections to remove parole board members for "incompetency, dereliction of duty, malfeasance, misfeasance, or nonfeasance in office," forces parole board members to deny parole to worthy applicants in order to keep their jobs. To conclude from this language that a parole board member may be removed as a result of a decision to grant or deny parole in an individual case or class of cases "overstates the argument" and is too speculative to warrant habeas relief. Juarez, 149 F. Supp.2d at 324.
In this case, the testimony at the parole revocation hearing revealed that Petitioner assaulted his ex-girlfriend and was in the company of armed men in violation of his parole. This Court is not persuaded that the Michigan Parole Board's revocation of Petitioner's parole for the reasons stated in its notice of decision was improper. Petitioner is not entitled to relief on this claim.
III. Conclusion
For the reasons stated, this Court concludes that Petitioner has not established that he is entitled to habeas relief on the claims presented. Accordingly,
IT IS ORDERED that the petition for writ of habeas corpus is DENIED WITH PREJUDICE.