Curtis v. Chester

• Decision Date: 24 November 2010
• Docket Number: No. 09-3338,09-3338
• Parties: Bruce A. CURTIS, Petitioner-Appellant, v. Claude CHESTER, Warden, USP-Leavenworth; United States Parole Commission, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

626 F.3d 540

Bruce A. CURTIS, Petitioner-Appellant,

v.Claude CHESTER, Warden, USP-Leavenworth; United States Parole Commission, Respondents-Appellees.

No. 09-3338.

United States Court of Appeals,Tenth Circuit.

Nov. 24, 2010.

Bruce A. Curtis, Pro Se, Federal Correctional Institution, Butner, NC.

Lanny D. Welch, United States Attorney, and Jackie A. Rapstine, Assistant

United States Attorney, District of Kansas, Topeka, KS, for Respondents.

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Bruce Alan Curtis, a federal prisoner proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2241 to challenge the United States Parole Commission's decision to revoke his parole and set an above-guidelines reconsideration date of 15 years.¹ He argues the parole board violated his Sixth Amendment right to confront adverse witnesses and also engaged in impermissible "double counting" to arrive at the reconsideration date. The district court found these claims to be groundless and denied his petition.

We have jurisdiction under 28 U.S.C. § 1291. After a careful review of the record, we agree Curtis's rights were not violated and therefore AFFIRM.

I. Background

Curtis was convicted in federal court of first degree felony murder in 1976 resulting from an attempted rape. He was given a life sentence but was eligible for parole. He was initially paroled in 1998 but was reincarcerated on at least two occasions after committing minor offenses. In 2002, Curtis was once again released on parole.

Weeks after his 2002 release, Curtis assaulted a female victim. The victim told police Curtis punched her in the face, attempted to rape her, and threatened to kill her. Curtis was charged with attempted forcible rape, attempted forcible sodomy, felony assaults, and threats. As part of a plea agreement, Curtis pleaded guilty to assault and the state dismissed the remaining charges with prejudice.

The United States Parole Commission found probable cause for revoking Curtis's parole. See 28 C.F.R. § 2.48. In making this determination, the parole board relied on the dismissed charges relating to attempted rape as well as the new assault conviction. During the revocation hearing, Curtis objected to both the presence of one adverse witness (the police officer who investigated the incident) and the absence of another adverse witness (the victim). The victim was not present, even though a subpoena had been issued, because she had moved without a forwarding address and none of the parties could locate her.

The board revoked Curtis's parole based on his assault conviction and its finding that Curtis had attempted to rape the victim. Furthermore, it found a pattern of dangerous and violent behavior that was not sufficiently reflected in Curtis's guidelines parole reconsideration date. The board therefore gave him an above-guidelines reconsideration date of 15 years.

II. Analysis

Curtis raises the following issues on appeal: (1) whether it was error for the parole board to rely on the dismissed attempted rape charge without allowing him to confront the victim; (2) whether the board engaged in impermissible "double counting" to arrive at its above-guidelines sentence; and (3) whether the district court erred in denying an evidentiary hearing and denying production of the revocation hearing audio tape.

A. Standard of Review

Our review of parole board decisions is quite limited.

The Commission's decision will stand unless it is arbitrary and capricious. It is not the function of courts to review the Board's discretion in denying parole or to repass on the credibility of reports received by the Board in making its determination. A reviewing court must make some inquiry into the factual basis for the Commission's decision. But the inquiry is not whether the Commission's decision is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the Commission's conclusions embodied in its statement of reasons.

Peltier v. Booker, 348 F.3d 888, 892-93 (10th Cir.2003) (citations and internal punctuation omitted). "We review de novo the district court's decision to deny habeas relief," but in doing so we employ the same deferential standard applied by the district court. Kell v. U.S. Parole Comm'n, 26 F.3d 1016, 1019 (10th Cir.1994).

B. Evidence of the Attempted Rape

Because the victim's unavailability prevented Curtis from cross-examining her, he contends the board erred in relying on her hearsay statements regarding the attempted rape. Curtis also contends the board erred by relying on evidence of dismissed charges. We disagree.

1. Right to Confrontation

Although parole revocation hearings are not part of a criminal prosecution, and therefore do not require identical procedural protections, these hearings must provide the "minimum requirements of due process." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These requirements include "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Id. But the right to confront adverse witnesses is not absolute. Kell, 26 F.3d at 1020 (citing Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). When live testimony is unavailable, "conventional substitutes" are permissible, "including affidavits, depositions, and documentary evidence." Gagnon, 411 U.S. at 782 n. 5, 93 S.Ct. 1756. Furthermore, the Federal Rules of Evidence do not apply, since the parole revocation process "should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial." Morrissey, 408 U.S. at 489, 92 S.Ct. 2593.

Relying on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Curtis asks us to apply the Sixth Amendment's right to confront witnesses in the parole setting. We cannot do so. Sixth Amendment rights are not applicable in parole revocation hearings because those hearings are not "criminal prosecutions." U.S. Const. amend. VI. All the circuit courts that have expressly considered this issue agree. See Valdivia v. Schwarzenegger, 599 F.3d 984, 989 (9th Cir.2010); United States v. Ray, 530 F.3d 666, 668 (8th Cir.2008); United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006); Ash v. Reilly, 431 F.3d 826, 829-30 (D.C.Cir.2005); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir.2005); United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir.2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir.2004). Because the Sixth Amendment's right to confrontation does not apply in this situation, neither do any Supreme Court cases dealing with it, specifically Crawford, 541 U.S. at 36, 124 S.Ct. 1354.

Thus, we are left with the due process guarantees specified in Morrissey, 408 U.S. at 489, 92 S.Ct. 2593. But Morrissey did not clarify how courts should determine when and how prisoners have a right to confront adverse witnesses at revocation hearings. A majority of circuit courts have adopted a balancing test to weigh the releasee's right to confrontation against the government's good cause in denying it. See United States v. Lloyd, 566 F.3d 341, 344-45 (3d Cir.2009); United States v. Williams, 443 F.3d 35, 46 (2d Cir.2006); United States v. Taveras, 380 F.3d 532, 537 (1st Cir.2004); United States v. Martin, 382 F.3d 840, 846 (8th Cir.2004); Barnes v. Johnson, 184 F.3d 451, 454 (5th Cir.1999); United States v. Comito, 177 F.3d 1166, 1171-72 (9th Cir.1999); United States v. Frazier, 26 F.3d 110, 114 (11th Cir.1994). Under this approach,

[t]he weight to be given the right to confrontation ... depends on two primary factors: the importance of the hearsay evidence to the court's ultimate findings and the nature of the facts to be proven by the hearsay evidence.... [T]he more subject to question the accuracy and reliability of the proffered evidence, the greater the releasee's interest in testing it by exercising his right to confrontation.

Comito, 177 F.3d at 1171.

We and four other circuits apply a different test, which allows the admission of hearsay evidence without a showing of cause for the declarant's absence if the evidence is sufficiently reliable. See Kell, 26 F.3d at 1020; see also United States v. Kelley, 446 F.3d 688, 692 (7th Cir.2006); United States v. Kirby, 418 F.3d 621, 628 (6th Cir.2005); Crawford v. Jackson, 323 F.3d 123, 131 (D.C.Cir.2003); United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir.1982), cert. denied, 459 U.S. 1010, 103 S.Ct. 365, 74 L.Ed.2d 400 (1982). Examples of evidence possessing recognized indicia of reliability include: (1) the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence), (2) statements falling under an established exception to the hearsay rule, (3) statements corroborated by detailed police investigative reports, and (4) statements corroborated by the releasee's own statements. See Gagnon, 411 U.S. at 782 n. 5, 93 S.Ct. 1756; Prellwitz v. Berg, 578 F.2d 190, 193 (7th Cir.1978) (evidence falling under the "business record" hearsay exception is reliable); Jackson, 323 F.3d at 130-31 (evidence corroborated by observations in a police investigative report is reliable); McCallum, 677 F.2d at 1026 (evidence corroborated by the releasee's testimony is reliable).

Recent amendments to the Federal Rules of Criminal Procedure cast some doubt on our case law. In 2002, Federal Rule of Criminal Procedure 32.1 was revised and expanded, partly in response to Morrissey and Gagnon. Although Rule 32.1's title refers to probation and supervised release, but not parole, it is nonetheless relevant here because, as the Supreme Court noted in Gagnon, there isn't "any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation." 411...