Unpublished Disposition, 904 F.2d 710 (9th Cir. 1990)

MEMORANDUM^** 

Ralph, a state prisoner, brought this petition for a writ of habeas corpus, pursuant to 28 USC Sec. 2254. Ralph claims that he was denied due process in the revocation of his probation because the state sentencing judge was prejudiced against him. This bias allegedly resulted from the prosecutor's ex parte communication to the judge regarding Ralph's earlier motion for a furlough.¹ 

Ex parte communications are generally disfavored in our adversarial system. See United States v Thompson, 827 F2d 1254, 1258-59 (9th Cir1987). However, to prevail on a due process claim, Ralph must show that the ex parte communication had at least a substantial probability of affecting the judge's decision; he must show that "the probability of actual bias on the part of the judge ... [was] too high to be constitutionally tolerable." Withrow v Larkin, 421 US 35, 47 (1975). He has not done so.

The ex parte communication here related only to Ralph's motion for a furlough to attend his brother's funeral, not to his probationary status. The prosecutor explained to the judge in chambers that he was concerned about Ralph's furlough request because: (1) he was unable to confirm that Ralph's brother had died; (2) he doubted the authenticity of psychological reports Ralph had submitted to support his motion; and (3) there was an ongoing criminal investigation that could lead to further charges against Ralph. The judge subsequently required the prosecutor to inform Ralph's attorney of the subject matter of this communication in an adversarial hearing. The judge denied Ralph's furlough request, but stated that she was not relying on any of the information presented by the prosecutor ex parte. Rather, she explained that her decision was based on concerns about difficulties with extradition should Ralph not return.

A week later, at a separate hearing, the judge revoked Ralph's probation. No mention was made of anything the prosecutor had communicated to the judge ex parte. The judge's stated reason for her decision was Ralph's willful violation of a condition of his probation: he had refused for over a year to submit himself to examination by the Western State Hospital Sexual Psychopathy Program. Ralph admitted the violation, and was given ample opportunity--personally, through counsel and via expert testimony--to explain his failure and to present alternatives to imprisonment. This is all the procedure that due process requires in a decision to revoke probation. See Black v Romano, 471 US 606, 614 (1985).

Ralph's only excuse for refusing to submit to Western State was fear that he would be misdiagnosed. The judge found this explanation inadequate, stating that Ralph could have brought any complaints directly to the court, but that his fears did not justify his refusal to comply with the terms of his probation. Under these circumstances, Ralph has not shown a sufficient probability of bias in the decision to revoke his probation.

AFFIRMED.