Unpublished Disposition, 889 F.2d 1097 (9th Cir. 1989)

MEMORANDUM^** 

James H. White, an inmate at the Federal Correctional Institution in Phoenix, Arizona, appeals pro se the district court's denial of his habeas corpus petition. White mounts numerous challenges to the decision of the United States Parole Commission (Commission) to revoke his parole. We affirm.

FACTS

White was convicted of armed bank robbery in New Mexico in 1974, and was sentenced to 25 years. In February of 1984, White was released on parole.

In April of 1985, the Albuquerque Police Department arrested White for the offense of criminal sexual contact with a minor. On the same day, federal agents executed a search warrant at his residence and found a .22 caliber revolver. After his release on bond, White left New Mexico.

White was arrested October 29, 1986 in Stockton, California, on a Commission warrant charging him with failure to submit monthly reports, criminal sexual contact with a minor, unauthorized possession of a firearm, and failure to report a change in residence. On November 6, 1986, White underwent a preliminary parole revocation interview at the Sacramento County Jail, at which he was represented by a public defender. White admitted to a failure to submit monthly reports and to a failure to report a change in residence, but declined on advice of counsel to answer the two criminal charges. The interviewing officer found probable cause on the counts of failure to submit monthly supervision reports and failure to report a change in residence.

On November 20, 1986, the Commission sent a letter to White indicating that it had found probable cause on all four charges and had therefore ordered a parole revocation hearing. White was designated for the U.S. Penitentiary in Leavenworth, Kansas, where a formal revocation hearing took place on February 23, 1987. White and his counsel indicated that they had not received the Parole Commission's November 20 letter and documentation, and copies were provided before the hearing began. White admitted to the charges of failure to submit reports and failure to report a change in residence, but denied the sexual contact and firearms charges. The panel concluded that White had violated parole by the two violations he admitted and the weapons charge, but added that there was not sufficient evidence relating to the sexual contact charge. On April 3, 1987, the Regional Commissioner revoked White's parole on the three charges, set a presumptive reparole date after 32 months, and ordered a further hearing on the sexual contact charge.

The supplemental hearing was scheduled for April 22, 1987, but postponed at the request of White and his lawyer, who wanted to review additional supporting documents related to the charge. At the supplemental hearing, held June 9, 1987, White waived representation by counsel and the testimony of voluntary witnesses. He denied the charges, objected to the evidence presented, and claimed that the victim's statements, as outlined in police reports describing a videotaped interview, were lies. The panel found White's guilt by a preponderance of the evidence. The Commissioner raised White's guideline range from 24-32 months to 34-44 months.

White filed an administrative appeal on August 1, 1987, which was denied on November 24, 1987. He then filed a petition for writ of habeas corpus on January 21, 1988. The district court denied the petition on March 10, 1989.

STANDARD OF REVIEW

This court reviews de novo the district court's denial of White's habeas corpus petition. Bruni v. Lewis, 847 F.2d 561, 563 (9th Cir. 1988), cert. denied, 109 S. Ct. 403 (1988), cert. denied, 109 S. Ct. 1319 (1989).

Review of parole revocation decisions is limited to determining "whether the Commission has acted outside its statutory authority or has committed a constitutional violation, but we may not review any decision involving the 'exercise of judgment among a range of possible choices or options.' " Vargas v. United States Parole Comm'n, 865 F.2d 191, 193 (9th Cir. 1988) (quoting Wallace v. Christensen, 802 F.2d 1539, 1552 (9th Cir. 1986) (en banc)). Review of a decision that " 'involves a plain violation of a matter which does not admit of discretion and choice' (such as the failure to follow certain statutory requirements) ... may only inquire whether [the Commission's failure to show good cause] was arbitrary, irrational, unreasonable, irrelevant, or capricious." Walker v. United States, 816 F.2d 1313, 1316 (9th Cir. 1987) (quoting Wallace, 802 F.2d at 1552). A court may review constitutional challenges to determine whether the Commission's action was so arbitrary that it violates due process. Walker, 816 F.2d at 1316; see also Coleman v. Perrill, 845 F.2d 876, 878 (9th Cir. 1988).

ISSUES

A. Did White receive adequate notice of the charges against him before his preliminary interview?

White first argues that he was denied adequate notice because he received a copy of the warrant application just before his preliminary interview, rather than at the time of his arrest.

At a preliminary hearing, a parolee "should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged." Morrissey v. Brewer, 408 U.S. 471, 486-87 (1972); accord 18 U.S.C. § 4214(a) (2) (A) (1982) (at a preliminary hearing the Commission must provide adequate "notice to the parolee of the conditions of parole alleged to have been violated"). The arresting officer's failure to provide White with a copy of the warrant violated 28 C.F.R. Sec. 2.46(b) (1986), which provides that the officer executing the warrant shall deliver a copy of the warrant application to the parolee.

White did, however, receive notice of the charges, his statutory rights, and the action the Commission could take against him when the warrant application was given to him and his counsel shortly before the hearing. Compare Vargas, 865 F.2d at 194 (remand to district court to determine whether parolee received no notice of charges against him before preliminary or final revocation hearing; if no notice provided, new revocation hearing appropriate). He did not request a continuance when offered an opportunity to do so. It was not irrational or unreasonable for the Commission to have proceeded with the preliminary interview.

B. Was White apprised of the evidence against him at the preliminary and final revocation hearings?

White further argues that he was not apprised of the evidence against him at either the preliminary or the final revocation hearing. A preliminary hearing must provide an "opportunity for the parolee to be apprised of the evidence against him." 18 U.S.C. § 4214(a) (2) (D) (1982). The warrant application given to White before the preliminary hearing listed the evidence against him, including an Albuquerque Police Department Offense Report, a search warrant affidavit, and letters from White's parole officer. The hearing examiner discussed the evidence with White. This was adequate for a preliminary hearing.

More is required, however, at a final revocation hearing. The minimum due process requirements include

(a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses ...; (e) a 'neutral and detached' hearing body ...; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.

Morrissey, 471 U.S. at 489 (emphasis added).

White claims that he did not receive the letter sent by the Commission reporting the results of the preliminary hearing and including the documentary evidence. If his assertion is true, then his first opportunity to review the evidence against him was just before the final hearing. White claims he had fifteen minutes to prepare his case.

Even assuming White did not receive the Commission's letter and accompanying documents, this does not constitute a due process violation under Morrissey's first two requirements for a final revocation hearing. White received notice of the violations charged against him when he was given a copy of the warrant at the preliminary hearing. See Bryan v. Petrovsky, 726 F.2d 431, 432 (8th Cir. 1984) (failure to receive letter detailing charges does not invalidate revocation; Morrissey notice requirement satisfied by service of initial warrant). The requirement that the evidence against the parolee be disclosed was met by the provision to White of the relevant documents and the discussion of the evidence at the hearing. Title 28 of the Code of Federal Regulations requires only that:

[a]ll evidence upon which the finding of violation may be based shall be disclosed to the alleged violator at the revocation hearing. The hearing officer or examiner panel may disclose documentary evidence by permitting the alleged violator to examine the document during the hearing, or where appropriate, by reading or summarizing the document in the presence of the alleged violator.

28 C.F.R. Sec. 2.50(d) (1986). We further note that neither White nor his attorney requested a continuance of the hearing to review the evidence.

In Anderson v. United States Parole Comm'n, 793 F.2d 1136, 1137 (9th Cir. 1986), a prisoner had received an "exceptional" parole determination (with a release date 36 months in excess of the Commission's guidelines) based on a report not made accessible to him before his parole release hearing. The Anderson panel found that the Commission had violated the prisoner's statutory hearing rights, and remanded for a new hearing.

Prisoners must be provided with reasonable access to any document to be used in a parole determination at least thirty days in advance. 18 U.S.C. § 4208(b) (2) (1982). There is no similar statutory requirement for parole revocation hearings, the Commission here did not exceed the guidelines, and White did receive the documents immediately prior to the hearing. Anderson is distinguishable.

C. Was White denied his right to confront and cross-examine adverse witnesses?

White alleges that he should have been allowed to confront and cross-examine adverse witnesses, regardless of whether he requested them. Morrissey indicates that at a preliminary hearing " [o]n request of the parolee, a person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence." 408 U.S. at 487 (emphasis added). See Gholston v. Jones, 848 F.2d 1156, 1160 (11th Cir. 1988). The applicable statute provides that the parolee shall have "opportunity ... if he so requests, to confront and cross-examine adverse witnesses, unless the Commission specifically finds substantial reason for not so allowing." 18 U.S.C. § 4214(a) (2) (D) (1982) (emphasis added). Regulations provide that adverse witnesses will be produced only at local revocation hearings, that is, hearings reasonably near the place of the alleged violations or the arrest. 28 C.F.R. Secs. 2.49(a), 2.50(c) (1986). (White was arrested in California, while his violations occurred in Arizona. It is not clear where a "local" hearing would have been held.)

At his preliminary hearing, White did not request adverse witnesses, writing "none" in the space provided. He requested an institutional revocation hearing rather than a local one, initialing and signing a form that explained that the Commission would not produce witnesses at an institutional hearing, and again writing nothing in the space provided for requesting adverse witnesses. There is no record of any request by White for adverse witnesses at the final or supplemental revocation hearings. He cannot now claim he was denied the right to confront and cross-examine them.

D. Was the Commission required to make a finding that the documentary evidence against White was reliable?

The documentary evidence against White at the first revocation hearing on February 23, 1987, included information in a letter from White's probation officer, a police report, and a search warrant affidavit from the Albuquerque police. At the supplemental hearing on June 9, 1987, the panel also considered a supplementary police report and a grand jury indictment related to the sexual contact charge. The police report described a videotaped interview of White's alleged victim.

At a revocation hearing the Commission may rely on reliable hearsay evidence. See Gagnon v. Scarpelli, 411 U.S. 778, 783 n. 5 (1973). White indicated that the victim and her mother had "disappeared," and he had been unable to locate them. As the Government points out, it was White's flight from Arizona following arrest on the sexual contact charge which caused the hearing to be held more than two years after the alleged violation and made it unlikely that the government could have located the victim and her mother and compelled them to testify.

This court has held that unrefuted hearsay evidence may be used at revocation hearings. United States v. Miller, 514 F.2d 41, 42-43 (9th Cir. 1975). Although White did attempt to refute the proffered evidence by presenting his own version of events and claiming the victim was not credible, the panel chose not to believe him. In view of White's failure to request the presence of witnesses, the Commission was within its discretion when it determined that the police reports were reliable. "This court lacks jurisdiction to review the reliability of the sources of the information in the ... report." Walker v. United States, 816 F.2d 1313, 1317 (9th Cir. 1987); see also Roberts v. Corrothers, 812 F.2d 1173, 1179-80 (9th Cir. 1987).

E. Did the National Appeals Board delay in answering White's appeal prejudice him?

White appealed the initial revocation of his parole immediately upon receipt of his April 3, 1987 notice of action. He was then notified that his appeal would not be answered until the supplemental hearing resolved the sexual contact charge. White received the final notice of his parole revocation after the supplemental hearing, on July 21, 1987 and appealed on August 1, 1987. He did not receive the answer denying his appeal until November 24, 1987, almost four months later.

Upon an appeal by the applicant, 28 U.S.C. § 4215(b) (1982) provides that the National Appeals Board "must act pursuant to rules and regulations within sixty days to reaffirm, modify, or reverse the decision." The Board's reply was almost two months past this statutory limit. As White points out, it was also nine months after the original hearing date.

Courts are reluctant to find that delay in the parole revocation process violates due process, unless the delay is unreasonable and causes prejudice to the parolee. See Vargas, 865 F.2d at 194; Hopper v. United States Parole Comm'n, 702 F.2d 842, 845 (9th Cir. 1983); Perry v. United States Parole Comm'n, 831 F.2d 811, 813 (8th Cir. 1987), cert. denied, 108 S. Ct. 1230 (1988). The delay in answering White's appeal, if measured from the final notice of action, is not unreasonable. Courts have allowed more substantial delays. See Heath v. United States Parole Comm'n, 788 F.2d 85, 89-90 (2d Cir.), cert. denied, 479 U.S. 953 (1986). White argues that he should have been allowed to file an appeal to "any part of the revocation decision including the remand for rehearing." The statutes do not provide for such piecemeal appeal. Appeal is allowed " [w]henever parole release is denied ... parole conditions are imposed or modified ... parole discharge is denied ... or parole is modified or revoked." 18 U.S.C. § 4215(a) (1982). White's parole was revoked following the earlier hearing in February, but the Commission did not set his final guidelines until after the supplemental hearing.

Nor did the delay in answering White's appeal prejudice him. He makes no claim that the two-month delay in answering his August 1 appeal worked to his disadvantage. Instead, he argues that the Appeals Board considered only the sexual contact charge and denied him the opportunity to appeal the gun charge. The Board's affirmation of its decision does indicate, however, that "the evidence you have presented does not persuade the Commission that the information relied upon is inaccurate" in what seems to be a reference to White's challenge to both the gun and sexual contact charges. There was no prejudice to White in the delay of the appeal or in the Commission's decision not to allow appeal until after the supplemental hearing.

F. Did other delays in the revocation process or a lack of detail in the Commission's decision violate due process?

White cites other delays, none of which are unreasonable or prejudicial. The Commission's failure to furnish written notice of its initial revocation decision within 21 days after the hearing, as required by 18 U.S.C. § 4214(e) (1982), did not result in any prejudice. Section 4214(e) also provides that a digest of the hearing "setting forth in writing the factors considered and reasons for such action" will be provided to the parolee. White apparently did not receive summaries of the hearings before he filed his appeal, but he does not indicate how this prejudiced his preparation (which appears at each stage to have been quite complete).

White also challenges the Commission's decision to order a supplemental revocation hearing. The Regional Commissioner is permitted to " [r]eturn the case to the institution for a rehearing, provided that a notice of action is sent to the prisoner specifying the purpose of the rehearing." 28 C.F.R. Sec. 2.24(b) (3) (1982). White received such a notice. The supplemental hearing was proper.

CONCLUSION

The district court's denial of White's petition for habeas corpus is AFFIRMED.