15 F.3d 803 (8th Cir. 1994), 93-2484, Belk v. Purkett

Docket Nº:93-2484.
Citation:15 F.3d 803
Party Name:Richard Joseph BELK, Appellant, v. James D. PURKETT, Appellee.
Case Date:February 08, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 803

15 F.3d 803 (8th Cir. 1994)

Richard Joseph BELK, Appellant,

v.

James D. PURKETT, Appellee.

No. 93-2484.

United States Court of Appeals, Eighth Circuit

February 8, 1994

Submitted Jan. 11, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied April 7, 1994.

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Counsel who presented argument on behalf of the appellant was Jane C. Hogan, St. Louis, Missouri.

Counsel who presented argument on behalf of the appellee was Millie Aulbur, Assistant Attorney General, Jefferson City, Missouri.

Before MAGILL and LOKEN, Circuit Judges, and EISELE, [*] Senior District Judge.

EISELE, Senior District Judge.

I. FACTUAL BACKGROUND

Mr. Belk was convicted of second degree murder in 1983 and sentenced to fourteen years imprisonment. He was paroled on

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July 29, 1989. On December 13, 1990, he was arrested by the Webster Groves, Missouri police department for misdemeanor harassment, second degree sexual assault, unlawful use of a weapon, and for being a fugitive from the St. Louis County Police Department on charges of second degree sexual assault and deviant sexual assault. 1 An Initial Violation Report was filed by the Missouri Board of Probation and Parole on December 28, 1990. This was followed by a second Initial Violation Report dated January 30, 1991. These two Violation Reports are referenced in a Violation Report dated February 6, 1991, although neither of these original Violation Reports were included in the record.

On January 31, 1991, Belk was given a preliminary hearing on his parole revocation at the St. Louis County Jail. Following a finding of probable cause, Belk was sent to the receiving facility at Fulton, Missouri for induction into the Missouri prison system on or about March 22, 1991. A Revocation Report was prepared by a parole officer on April 8, 1991, which referenced an interview with Belk on April 2, 1991. Belk was given a final revocation hearing on April 23, 1991 and on that date, an order of revocation was prepared. On May 3, 1991, Belk's parole was revoked. He filed the instant petition for a writ of habeas corpus on March 31, 1992 alleging that his parole was improperly revoked. Following a responsive pleading by the respondent, the Magistrate Judge, without conducting an evidentiary hearing, found that Belk was not entitled to habeas corpus relief, and the district court, without conducting a de novo review, adopted the Report and Recommendations of the Magistrate.

Petitioner contends that he was denied due process of law in violation of the Fourteenth Amendment in the revocation of his parole because the revocation hearings did not comport with the procedures required to revoke parolees as set forth by the United States Supreme Court. Specifically, he alleges that he was not provided adequate notice of the charges against him, that he was denied adequate opportunity to contact witnesses, that he was denied the opportunity to review the evidence against him, and that he was denied the opportunity to confront and cross-examine adverse witnesses.

II. THE INITIAL VIOLATION REPORTS AND THE PRELIMINARY HEARING

In Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), the United States Supreme Court provided the starting point for analyzing the constitutionality of parole revocation proceedings. That decision first recognized the liberty interest of parolees:

"... [T]he liberty interest of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a "grievous loss" on the parolee and often on others.

....

... [T]he State has no interest in revoking parole without some informal procedural guarantees ... A simple factual hearing will not interfere with the exercise of discretion.

....

... Society has a stake in whatever may be the chance of restoring (the parolee) to normal and useful life within the law ... And society has a further interest in treating the parolee with basic fairness: fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness."

Morrissey, 408 U.S. at 481-484, 92 S.Ct. at 2600-2602.

The first stage of a revocation occurs when the parolee is arrested and detained. Morrissey requires that the parolee be provided "some minimal inquiry ... at or reasonably near the place of the alleged parole violation as promptly as convenient after arrest while information is fresh and sources are available." Id. at 485, 92 S.Ct. at 2602. The Court went on to set forth more specific criteria for the preliminary hearing:

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"[T]he 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. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination."

Id. at 486-487, 92 S.Ct. at 2602-2603.

The record in the instant case is silent on a number of important issues. Indeed, it often appears that the petitioner and the respondent are arguing different cases, rather than different theories of the same case. In any event, a number of statements by petitioner in his original petition for a writ of habeas corpus and in his objections to the Magistrate Judge's Report and Recommendations are never addressed, and thus never disputed, by respondent. Likewise, they were never addressed by the Magistrate Judge. Finally, they were never addressed by the trial court. The Court's concerns about the process provided in this case will be set forth in more detail below.

Petitioner complains that he was never provided with copies of the police reports or the complete statements of the alleged victim in this case. Respondent replied that this allegation was without merit based upon petitioner's own acknowledgment that "he received copies of the 'pertinent violation reports dated 12/28/90 and 1/30/91' ..." This is non-responsive. In the Violation Report dated 2/6/91 which summarizes the preliminary hearing, the writer of the report states that Mr. Belk received copies of the pertinent Violation Reports dated 12/28/90 and 1/30/91. That same 2/6/91 Violation Report makes reference to police reports and the signed statement of the alleged victim, which is also conspicuously omitted from this record. It is clear to this Court that the officer writing the 2/6/91 Violation Report used the term "Violation Report" as a term of art referring to reports issued by probation or parole officers assigned to cases where violations are being investigated. A Violation Report is not a police report. In this case, it appears that the initial Violation Reports of 12/28/90 and 1/30/91 may have been based upon a police report, or an alleged victim statement, or other information, making the violation report information little more than double hearsay.

The notice requirements for a preliminary revocation hearing are limited to the time, place, and purpose of the hearing, including notice as to what parole violations have been alleged. Had petitioner been provided with copies of the Initial Violation Reports in a timely manner, then it could have been argued that the minimal procedural requirements may have been met for purposes of the preliminary hearing. However, petitioner alleges that he was not provided with copies of those Initial Violation Reports until moments before the hearing, an allegation which is never disputed.

With only a few moments notice of the alleged violations, the other rights set forth by the Supreme Court for the preliminary hearing may be of little benefit. How can a parolee being held in custody be expected to bring letters, documents, or individuals who can give relevant information to the hearing officer when he does not know with what, specifically, he is being charged? How can he request the presence of persons who have given adverse information if he has no prior notice as to the information being relied upon, or the source thereof?

The charges facing Belk at his preliminary revocation hearing stemmed from his arrests for harassment, sexual assault second degree, unlawful use of a weapon and deviant sexual assault. 2 The harassment and sexual

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assault charges stemmed from his relationship with Jennifer Doty. Apparently, Doty and Belk worked at a stable together and became romantically involved. At the beginning of the relationship, Doty was sixteen years old. Approximately two years later, Doty tried to curtail the relationship. Belk left a note on her car in October of 1990, followed by another note in December of 1990. Doty's father took those letters (neither of which is in the record, one of which Belk admits "did not say very nice things" about Doty) to the police. Apparently Doty had sent similar letters to Belk. Those letters are also absent from the record. Belk's two notes were the apparent basis for the harassment charge. 3

At some point Doty made a signed statement, alleging, among other things, that she and Belk had sexual relations when she was still 16 years of age. 4 The Court does not know what else the statement says, because it was not made a part of the record. The 4/8/91 revocation report states that "Doty indicated that Belk touched and inserted his fingers into...

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