Unpublished Disposition, 880 F.2d 1323 (9th Cir. 1987)

No. 88-4219.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and DAVID R. THOMPSON, Circuit Judges, and A. WALLACE TASHIMA,^*  District Judge.

MEMORANDUM^** 

This is an appeal from the denial of a petition for writ of habeas corpus. The district court exercised jurisdiction pursuant to 28 U.S.C. § 2241. This Court has appellate jurisdiction under 28 U.S.C. § 2253.

In 1969, appellant McCracken was sentenced to 40 years imprisonment on two counts of shooting with intent to kill. He was paroled in 1976, but later that year he was indicated for possession of a firearm. He was alleged to have given a gun to a third party, Wilma Haynes (the "Haynes Incident"). On the basis of this incident, the Alaska Parole Board revoked McCracken's parole and imposed a ten-year "set-off" before he could be reconsidered for parole. Two months later, he was acquitted on the criminal charge. In addition, shortly after his parole was revoked, McCracken was indicted for assault with a deadly weapon on Alvin Williams (the "Williams Incident"). That indictment was later dismissed when Williams could not be located.

In a state habeas corpus proceeding, the Alaska Supreme Court held that in order fully to protect McCracken's right not to incriminate himself, without sacrificing his opportunity to be heard at his parole revocation hearing, he should have been given a more clear explanation that no statements made at the hearing could have been used against him in any way at the trial. McCracken v. Corey, 612 P.2d 990 (Alaska 1980). Without such an explanation, he may have been deterred from presenting a defense at the parole hearing. Id. Thus, the Court ordered that a new parole revocation hearing be held. Accordingly, a new parole revocation hearing was held in 1981.

At the second hearing, the charges were amended to include the Williams Incident. Parole was again revoked and the same 10-year set-off was imposed. McCracken again sought state habeas corpus relief, but this time it was denied. He then sought relief in federal court. As indicated, his federal petition was denied by the district court. On appeal, McCracken challenges his parole revocation on three grounds: (1) that acquittal on criminal charges precludes parole revocation based on the same charges; (2) that his revocation hearing was unreasonably delayed in violation of due process; and (3) that the ten-year set-off is cruel and unusual punishment. He further contends that the district court erred in denying his motion to amend his petition, denying an evidentiary hearing, failing adequately to review the state court record and denying his requests for discovery and oral argument.

We review the denial of a writ of habeas corpus de novo. Manhalt v. Reed, 847 F.2d 576, 579 (9th Cir.), cert. denied, 109 S. Ct. 260 (1989).

DISCUSSION

McCracken contends that parole cannot constitutionally be revoked on the basis of criminal charges for which the parolee has been acquitted. In Standlee v. Rhay, 557 F.2d 1303 (9th Cir. 1977), this Circuit squarely held that such a revocation is constitutional. Because of the difference in the burdens of proof in parole revocations which are civil proceedings and in criminal proceedings, an acquittal on criminal charges does not collaterally estop parole revocation based on the same charges. Id. at 1305. Similarly, because parole revocation is a remedial sanction rather than a punitive one, there is no double jeopardy. Id. On this issue, appellant challenges the law of the Circuit which this panel is not free to disregard.

McCracken also claims that the Alaska Board of Parole had a policy not to revoke parole if the parolee was acquitted of the same charges following a criminal trial. Likewise, McCracken argues that the State should be estopped from revoking parole after acquittal based on its previously expressed concern that such revocation would be improper. Neither of these claims were included in McCracken's petition. They were not before the district court and are not properly before this Court.¹ 

Next, McCracken contends that the delay from 1976 to the 1981 parole hearing violated his due process right to a parole revocation hearing held within a reasonable time. Although the Sixth Amendment right to a speedy trial may not apply to parole revocation proceedings, Kartman v. Parratt, 535 F.2d 450 (8th Cir. 1976); Moultrie v. State of Georgia, 464 F.2d 551 (11th Cir. 1972), due process requires that such a hearing be held within a reasonable time after the parolee is taken into custody. Morrissey v. Brewer, 408 U.S. 471, 488 (1972). The test enunciated in Barker v. Wingo, 407 U.S. 514 (1972), for evaluating delays under the Sixth Amendment, is often used to evaluate delay under the due process clause. See, e.g., United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 564-70 (1983) (due process requires that a forfeiture hearing be held within a reasonable time); Hanahan v. Luther, 693 F.2d 629, 634 (7th Cir. 1982) (applying Barker to parole revocation). The parties agree that the Barker analysis should be applied here.

Barker requires a balancing of four factors: (a) the length of the delay; (b) the reason for the delay; (c) whether and when the defendant asserted his speedy trial right; and (d) whether defendant was prejudiced by the delay. 407 U.S. at 530.

(a) Length of delay--McCracken discusses three different periods of delay. The first delay was between the preliminary hearing on September 21, 1976 and the final revocation hearing on May 28, 1981. The second delay, a part of the first delay, was between the date of the Alaska Supreme Court mandate and October 31, 1980, the first hearing date offered to McCracken.²  While McCracken asserts that the mandate was issued on June 8, 1980, the State petitioned for rehearing. Therefore, the mandate was not signed until July 8, 1980 and it was "spread on the record" two weeks later. Thus, this second delay was somewhat less than four months long.

Finally, McCracken complains of the delay between the Williams Incident in 1976 and the hearing in 1981. Although the 1981 proceeding included an amended charge concerning the Williams Incident, revocation was not based on that charge. Evidence of the Williams Incident was not offered until the disposition hearing, which was not held until after the board had found that parole had been violated.³  Thus, this delay merits no further consideration.

(b) Reason for Delay--The delay in this case is primarily attributable to the appellate process. There is no evidence as to how long it took McCracken to initiate the original state habeas proceedings. Once the process began, appellant contends that the delay by the courts was extraordinary and undue. He points to the fact that it took over one and one-half years for the Alaska Supreme Court to issue its decision.

In United States v. Loud Hawk, 474 U.S. 302 (1986), the Court described the weight to be given in the Barker analysis to delays caused by interlocutory appeals:

A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able to return to the District Court to reap the reward of dismissal for failure to receive a speedy trial.

Id. at 316. The same reasoning can be applied to delays caused by collateral attacks. In addition, Barker clearly distinguishes deliberate delay designed to prejudice the defendant and delay due to overcrowded courts. Barker, 407 U.S. at 531. In this case, there is no evidence of bad faith by the State.

The only other delay is the time it took to transport McCracken back to Alaska from the federal prison in Kansas where he was being held when the Alaska Supreme Court mandate was issued and the time it took to set up the hearing. Again, there is no evidence of bad faith. Citing Johnson v. Holly, 528 F.2d 116 (7th Cir. 1975), which found a four-month delay to be presumptively excessive, McCracken argues that this delay must be unreasonable. However, Johnson did not apply the Barker analysis and its "presumption" has since been explicitly rejected by the same circuit. United States ex rel. Sims v. Sielaff, 563 F.2d 821, 827 (7th Cir. 1977).⁴  See also, Morrissey, 408 U.S. at 488 (a delay of two months after being taken into custody was not unreasonable); Hanahan v. Luther, 693 F.2d 629, 634 (7th Cir. 1982), cert. denied, 459 U.S. 1170 (1983) (upholding a four-month delay where there was no prejudice).⁵ 

(c) McCracken's Assertions of His Rights--McCracken properly asserted his right to a hearing within a reasonable time. Throughout the course of these proceedings, McCracken repeatedly requested a special hearing to consider his parole status. Only near the end of the process did he request delay to aid his preparation.

(d) Prejudice to McCracken--McCracken claims that witnesses who would have benefitted his case died or disappeared during the delay. More specifically, he claims that various people with and for whom he worked in 1976 had left Alaska by 1981. He claims that these individuals could have provided character evidence for him. McCracken also claims that Eddie Kubilus, who died during this period, gave or knew who gave the gun to Haynes and thus would have been a helpful witness.

First, loss of a character witness does not constitute prejudice. United States v. Richards, 707 F.2d 995, 998 (8th Cir. 1983). Moreover, McCracken does not indicate that he has attempted to locate these witnesses or that other co-workers who might still be in Alaska could not provide the same evidence. In fact, the State claims that it was even willing to stipulate to McCracken's good work record.

In addition, McCracken has offered no extrinsic evidence that Kubilus could or would have helped him. McCracken tells us only that an unidentified "reliable source" told him of Kubilus' involvement. Unsupported allegations of prejudice are insufficient. Cf. United States v. Mays, 549 F.2d 670, 677 (9th Cir. 1977) (mere speculation of prejudice is insufficient to render pre-indictment delay a violation of due process); United States v. Surface, 624 F.2d 23, 25 (5th Cir. 1980) (defendant bears the burden of proving prejudice in challenges based on pre-indictment delay). In addition, the delay did not wholly cause the alleged "loss of witness" predicament. McCracken did not use Kubilus as a witness in either his 1976 or his 1977 criminal trial or at the 1976 parole revocation hearing. McCracken certainly had incentive to collect all useful evidence at that time. In addition, he and his attorneys necessarily knew that the parole revocation hearing was being challenged. Thus, they should have known to preserve or attempt to preserve all helpful evidence.

Balancing the four factors above, we conclude that the delay in this case did not violate the standards of due process. It was almost entirely due to the workings of the appellate process, was without bad faith, and caused little, if any, prejudice to McCracken.

McCracken contends that the imposition of a 10-year set-off before he can be reconsidered for parole constitutes cruel and unusual punishment. However, because the set-off period has already expired, this issue is moot.⁶ 

On May 28, 1987, the magistrate issued his Report and Recommendation Denying Petition for Habeas Corpus. On July 8, 1987, McCracken filed a Notice of Lodging of Drafts of Motion to Amend and Clarify the Petition. He filed the request to amend on September 4, 1987, apparently four days after completion of the transcripts of the parole hearings. The request to amend sought to add seven additional claims: (1) that McCracken was not being detained for the alleged parole violation, but rather because of information or involvement he might have relating to two newsworthy murders; (2) that he was denied a fair hearing before an unbiased tribunal; (3) that the Parole Board failed to follow its own policies and thus violated his due process and equal protection rights; (4) that the State was estopped from revoking parole because of its reliance on Standlee v. Rhay, 403 F. Supp. 1247 (E.D. Wash. 1976);⁷  (5) that evidence was improperly presented at the dispositional phase of the revocation hearing; (6) that McCracken was improperly burdened by having to prove prejudice caused by the delay in holding his hearing; and (7) that the ten-year set-off violated due process, equal protection, and cruel and unusual punishment.

Because the motion to amend was filed more than a year after the petition was filed and several months after the first Report and Recommendation was filed, the magistrate reasoned that it should be deemed a successive petition under Rule 9(b), Rules Governing Section 2254 Cases in the United States District Courts.⁸  The magistrate found that some of the claims had been alleged in the earlier petition and that the basis for the others had been known at the time of the original filing. Thus, he recommended that the motion be denied as an abuse of the writ. The district court explicitly rejected the successive petition analysis, but still denied the motion to amend.

Motions to amend are reviewed for an abuse of discretion, but denial of a motion to amend is reviewed "strictly." Klamath--Lake Pharmaceutical Ass'n v. Klamath Medical Serv. Bureau, 701 F.2d 1276, 1292 (9th Cir.), cert. denied, 464 U.S. 822 (1983).

The general rule which governs motions to amend under F.R.Civ.P. 15(a) is that leave to amend should be "freely given." Foman v. Davis, 371 U.S. 178, 182 (1962); Gabrielson v. Montgomery Ward & Co., 785 F.2d 762, 765 (9th Cir. 1986). Leave to amend should be denied, however, where the amendment would be futile. Klamath-Lake, 701 F.2d at 1292.

Generally, delay alone is insufficient reason to deny a motion to amend. United States v. Webb, 655 F.2d 977 (9th Cir. 1981). However, in some circumstances it is not an abuse of discretion to deny a motion to amend where the case has advanced too far on the merits. Roberts v. Arizona Bd. of Regents, 661 F.2d 796, 798 (9th Cir. 1981) (amendment denied as prejudicial where offered "at the eleventh hour," after discovery nearly completed and summary judgment motion was pending); M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th Cir. 1983) (denying leave to amend after the filing of summary judgment motion where there were no new facts discovered and possible disposition would be unduly delayed); Lopez v. General Motors Corp., 697 F.2d 1328, 1332 (9th Cir. 1983) (denying leave to amend to add additional parties six months after removal and four days prior to hearing on summary judgment motion). In this case, determination on the merits of the case was nearly complete by the time the motion was made; the magistrate had already issued his report and recommendation to the district court. McCracken attempts to explain the late amendment by a change of counsel, yet he had the same counsel for over ten years and one of his current counsel was also his counsel at least as early as the time when the original petition was filed. Moreover, the proposed amendments relate to conduct that occurred between 1976 and 1981.⁹  At such a late date, it was not an abuse of discretion to deny the amendment.¹⁰ 

The district court also denied McCracken's request for an evidentiary hearing.¹¹  To be entitled to an evidentiary hearing, a petitioner must first show that he has alleged facts which, if proved, would entitle him to relief and that an evidentiary hearing is required to establish the truth of the allegations. Lincoln v. Sunn, 807 F.2d 805, 808 (9th Cir. 1987). Petitioner fails to satisfy either prong of this test.

Those issues which relate to the imposition of the ten-year set-off are moot and thus cannot be the basis of an evidentiary hearing. Since the motion to amend the petition was properly denied, any factual issues which would have been raised by the proposed amendments are irrelevant and not before the Court. Likewise, as long as Standlee is the law of this Circuit, it does not matter whether there was substantial evidence presented to the Parole Board that was not offered at trial.

Appellant also seeks an evidentiary hearing on who caused the delay in holding the revocation hearing and whether the delay caused prejudice to McCracken. These are components of the Barker analysis discussed above. McCracken does not show that any specific, material factual assertions are disputed. Similarly, McCracken has not shown that there are disputed facts concerning any attempts to preserve evidence. Whether any efforts to obtain police records or other discovery would have been useless without an evidentiary hearing during the habeas corpus process and whether McCracken would have had a factual defense to the charges if he had been allowed an evidentiary hearing are not issues of fact which could support the granting of a writ of habeas corpus. Thus, no evidentiary hearing was required.

In sum, McCracken has not shown that the district court erred in denying an evidentiary hearing on any material issue of fact. His alleged disputes are either not relevant to the unamended petition, not issues of fact or show no indication of real dispute.

In a similar vein, McCracken argues that the district court must be reversed because it failed adequately to review the state court record.

A habeas court must conduct a thorough and independent review of all relevant parts of the state court record. Richmond v. Ricketts, 774 F.2d 957 (9th Cir. 1985). In this case, the district court opinion is a reasoned analysis of the issues which is based almost entirely on points of law. The state court record can add nothing to the discussion of Standlee. The Cruel and Unusual Punishment analysis also requires no extended factual analysis. Finally, there are the speedy hearing issues. As indicated again and again, these are legal determinations based on facts which are not disputed. The district court showed a clear knowledge of the claims asserted by McCracken and his failure to substantiate the claims on the record. The district court and the magistrate carefully analyzed all of the claims before them. The remaining issues relate to the proposed amended claims which were properly refused consideration.

Lastly, McCracken contends that the district court abused its discretion in denying his requests for discovery and for oral argument. Along with his motion to amend, McCracken requested discovery to depose members of the parole board who were involved in his parole revocation. The stated purpose of the depositions was to determine "whether the disparate treatment [McCracken] received was part of a plan to put pressure on him to reveal information regarding the Martin and Pettus homicides." (Appellant's Brief at 44). The discovery request related only to the proposed amended claims. As such, it was not an abuse of discretion to deny discovery once the proffered amendment was denied.

As for the request for oral argument, appellant makes no arguments as to why denial was an abuse of discretion. Thus, even if the contention has not been abandoned, no showing has been made in support of it. We conclude that the district court did not abuse its discretion in not permitting oral argument

The judgment of the district court is AFFIRMED.