Durling v. CHAIRMAN, MASSACHUSETTS PAROLE BD.
| Decision Date | 01 April 1992 |
| Docket Number | Civ. A. No. 90-11923-H. |
| Citation | 789 F. Supp. 457 |
| Parties | Ralph M. DURLING, v. CHAIRMAN, MASSACHUSETTS PAROLE BOARD, Clerk, Stoughton District Court, Chief Probation Officer, Stoughton District Court. |
| Court | U.S. District Court — District of Massachusetts |
Robert W. Hagopian, Belmont, Mass., for plaintiff.
Robert N. Sikellis, Asst. Atty. Gen., Office of the Atty. Gen., Boston, Mass., for defendants.
Report and Recommendation of Magistrate is approved and adopted by the Court.
In his petition for writ of habeas corpus, Ralph M. Durling (hereinafter, "Durling"), complains that the proceedings by which his state parole and probation were revoked violated his right to due process of law. The facts as alleged are that Durling was arrested in September, 1986 in Stoughton on charges of driving under the influence and leaving the scene of an accident. He presumably appeared in state court and was released. Before the September charges could come to trial, he was arrested on identical charges stemming from a separate incident in October, 1986.
In June, 1987, all four charges were consolidated in the Dedham District Court and, presumably after a trial, he was found guilty of all four. The judge imposed a two year prison term, suspended all but ninety days, and placed Durling on probation until June 29, 1989. Durling acknowledges that as conditions of probation, he had to obey all laws and report to his probation officer as directed.
In April, 1988, while Durling was still on probation, he was arrested in Taunton for operating under the influence. In May, 1988, he was arrested in Easton for operating under the influence, operating to endanger and operation after revocation. In May, 1988, Durling was served with a document entitled "Notice of Surrender and Hearing(s) for Alleged Violation(s) of Probation" which cited the Easton arrest. No mention was made in the notice of the Taunton arrest.
The hearing on the probation violation occurred in October, 1988. Durling alleges that the government's evidence consisted only of the probation officer's reading of the police reports for both the Easton and Taunton arrests; the reports were not introduced into evidence. Cross-examination revealed that the probation officer had no personal knowledge about the facts contained in the reports.
At the surrender hearing, Durling's attorney objected to the use of the police reports. The Judge stated:
Well, I accept it. They're acceptable at surrender hearings. That's the only information we have. We're not, we're not obligated to bring in the arresting officers.
Durling's counsel then stated that he had a "right to cross-examine" and that he could not cross-examine in these circumstances. Transcript, p. 6. The judge indicated that he would move forward but stay any commitment order pending appeal. Id.
The judge, on the basis of the evidence, revoked the probation, ordered Durling committed for nine months and suspended the remaining year of the original two-year sentence. As the judge had indicated, he stayed the sentence to enable Durling to appeal to the Massachusetts Appeals Court.
However, during the pendency of the appeal, Durling was convicted of the underlying charges arising from the Easton and Taunton incidents. He began serving the sentences for those offenses as well as the nine-month probation revocation sentence; he was paroled on March 31, 1990. His parole expired on November 20, 1990; his probation expired on November 20, 1991.
In the interim, the Supreme Judicial Court transferred Durling's appeal to its own docket and on March 26, 1990, denied relief. Commonwealth v. Durling, 407 Mass. 108, 551 N.E.2d 1193 (1990).
The instant petition was filed on August 7, 1990. In the petition, Durling, citing the "liberty interest" created by state laws providing for probation, claims that the procedures employed in the deprivation of that liberty interest at the revocation hearing violated the due process clause and his right to confront his accusers.
The respondents (hereinafter, "the Commonwealth"), assert in their Answer (# 8) that Durling has failed to exhaust his state court remedies "... in that he did not adequately identify his sixth amendment claim before the State Court." Further, the Commonwealth maintains that the petition fails to state a claim upon which relief may be granted.
The Commonwealth argues that Durling has not exhausted his state court remedies as to the "claim" which is supposedly contained in the notation on p. 3 of the Petition that the probation officer, at the revocation hearing, was allowed to read from "... a second police report, relating to an OUI charge in Taunton on April 8, 1988 which was not cited in the surrender notice." In my opinion, this statement is not meant to state a claim but rather to state a fact. Durling's constitutional claim is not that he was not given notice of the Taunton arrest; rather, he claims that the reading by the probation officer of police reports involving the Easton and Taunton incidents about which the officer had no personal knowledge violated Durling's right to confront his accusers and his right to due process. Those claims have clearly been exhausted.
In short, I rule that the instant petition is not a "mixed" one subject to dismissal under the rationale of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
In its opinion, the SJC acknowledged the Supreme Court's holding in Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 1759, 36 L.Ed.2d 656 (1973) to the effect that:
A revocation of probation does ... result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution. The due process clause, therefore, requires that the Commonwealth provide probationers with certain protections for surrender hearings.
Commonwealth v. Durling, supra, 407 Mass. at 112, 551 N.E.2d at 1195-6 citing Gagnon v. Scarpelli, supra, 411 U.S. at 782, 93 S.Ct. at 1759. (footnote omitted).
The SJC further wrote:
In Gagnon, supra, the Supreme Court relied heavily on Morrissey v. Brewer, 408 U.S. 471 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In Morrissey, the Court determined that due process principles applied to parole revocation hearing. Morrissey and Gagnon establish that the minimum requirement of due process include
Commonwealth v. Durling, supra, 407 Mass. at 112, 551 N.E.2d at 1196 quoting Gagnon v. Scarpelli, supra, 411 U.S. at 786, 93 S.Ct. at 1761-62.
Noting that Durling claimed a violation of requirement (d) of the Morrissey-Gagnon enumeration, the SJC wrote the following:
In this case, we are squarely presented with the question (1) whether hearsay may be utilized in probation revocation hearings; and (2) if so, when and to what extent. The first question is our view is easily resolved. The second requires careful consideration.
Commonwealth v. Durling, supra, 407 Mass. at 114, 551 N.E.2d at 1196-97.
The SJC's answer to the first question was that "... the due process clause does not place a per se prohibition on the use of hearsay evidence at probation revocation proceedings." Id., 407 Mass. at 115, 551 N.E.2d at 1197.
Commonwealth v. Durling, supra, 407 Mass. at 114, 551 N.E.2d at 1197.
Despite these failures, the SJC affirmed the proceedings in the lower court, noting that:
... Presenting a witness with personal knowledge is not always possible. Indeed, it is often unrealistic. In this case the defendant's revocation hearing was before a District Court in Norfolk County. The defendant's subsequent arrests were in Taunton and Easton, both in Bristol County. The burden of requiring police officers to travel to other parts of the State for revocation hearings would fall heavily not only on the officers but also on their local communities which would lose their services for a significant period of time. (footnote omitted) In addition, the burden of scheduling the hearing at a time convenient to the witnesses, the defendant, the court, and the attorneys would fall on the individual probation officers. (footnote omitted) Thus, there are often valid reasons for not presenting live witnesses. This is what the Morrissey and Gagnon Courts recognized when they noted that the hearing officer could deny confrontation rights for "good cause." Gagnon v. Scarpelli, supra, 411 U.S. at 786 93 S.Ct. at 1762.
Commonwealth v. Durling, supra, 407 Mass. at 117, 551 N.E.2d at 1198.
Next, the SJC noted the reliability of the police reports and held that:
Unsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation. When hearsay evidence is reliable, however, then it can be the basis of a revocation. In our view, a showing that the proffered evidence bears...
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