Kell v. U.S. Parole Com'n

• Decision Date: 16 June 1994
• Docket Number: No. 93-6349,93-6349
• Citation: 26 F.3d 1016
• Parties: Sam Richard KELL, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1016

26 F.3d 1016

Sam Richard KELL, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION, Respondent-Appellee.

No. 93-6349.

United States Court of Appeals,

Tenth Circuit.

June 16, 1994.

Sam Richard Kell, pro se.

Vicki Miles-LaGrange, U.S. Atty., and Robert A. Bradford, Asst. U.S. Atty., Oklahoma City, OK, for respondent-appellee.

Before LOGAN, SETH, and BARRETT, Circuit Judges.

LOGAN, Circuit Judge.

Petitioner Sam Richard Kell appeals from the denial of his pro se habeas corpus petition, filed pursuant to 28 U.S.C. Sec. 2241. His petition contained ten specific challenges to the United States Parole Commission (Commission) decision to revoke his parole and reincarcerate him for a period longer than indicated by the applicable guideline range. We exercise jurisdiction under 28 U.S.C. Sec. 1291 and affirm. ¹

The facts have been fully set forth by the magistrate judge, whose findings and recommendations the district court adopted. We restate only those facts relevant to our analysis. Petitioner was convicted in 1978 of armed bank robbery and kidnapping and was sentenced to forty years imprisonment. He was released on parole in July 1990 and arrested on a parole violator warrant in March 1992. The warrant charged that petitioner had violated the conditions of his parole by (1) using dangerous habit forming drugs, (2) refusing to participate in a residential drug treatment program, which was a special condition of his parole, and (3) failing to report to his parole officer. Petitioner denied all charged violations, both at the preliminary interview and the revocation hearing.

The hearing panel recommended reincarceration for thirty months, well above the twelve to sixteen-month range indicated by the parole guidelines. See 28 C.F.R. Sec. 2.20, Guidelines for Decisionmaking. Justifying its recommendation, the panel stated:

First, it is believed that [Kell] is a poorer risk than indicated by the [salient factor score], and that he has a history of drug abuse expanding more than 25 years and this is directly related to a serious criminal record which includes two robbery convictions, and of course the original offense of armed bank robbery and kidnapping. The original offense involved a shot fired at a civilian. In addition, he incurred serious misconduct reports during his last period of confinement for drug use and introduction of drugs into the institution. He has been unwilling or unable to refrain from using drugs in prison and now in the community.

The aggravating feature in this case is at the time of his arrest, he attempted to avoid arrest by engaging in a high speed chase, during which he put school children at jeopardy due to this incident.

R. 6, ex. N at 4. The Commission adopted the hearing panel's recommendation and reasoning. Petitioner appealed the Commission's decision, and the National Appeals Board affirmed.

Petitioner then filed this habeas petition, advancing a number of contentions. The district court found no merit in any of the allegations and denied the petition. We review de novo the district court's decision to deny habeas relief. Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 129, 125 L.Ed.2d 83 (1993). Judicial review of the Commission's decision to exceed the parole guidelines in setting an inmate's release date is limited. Sotelo v. Hadden, 721 F.2d 700, 702 (10th Cir.1983). We determine whether there is a rational basis in the record to support the Commission's decision. Montoya v. United States Parole Comm'n, 908 F.2d 635, 637 (10th Cir.1990). We will not disturb that decision "unless there is a clear showing of arbitrary and capricious action or an abuse of discretion." Sotelo, 721 F.2d at 702. "Further, an administrative agency's interpretation and application of its own regulations should be given some deference by the courts." Id.

We have reviewed the briefs and the record and agree with the analysis of the magistrate judge, whose report was adopted by the district court, as to four of the issues. We therefore affirm the dismissal of petitioner's claims that (1) he did not receive a fair and impartial revocation hearing, (2) his attorney failed to provide effective assistance at the revocation hearing, (3) his due process rights were violated when the Commission failed to provide a list of every substance that would cause a false positive on its urine tests, and (4) his due process rights were violated when the Commission failed to comply with his Freedom of Information Act request for documents. Petitioner's remaining assertions are (1) denial of due process because he was not permitted to confront his parole officer, (2) "double-counting" his criminal history and drug use to support extending his reincarceration, (3) multiple punishments for the same crime, (4) lack of notice that the circumstances of his rearrest would be a factor in the Commission's decision, (5) use of unsubstantiated accounts of that rearrest incident, and (6) lack of notice that petitioner's previous institutional incident reports would also be considered by the Commission. We consider these issues in order.

I

First, we address petitioner's due process claim that he was not allowed to confront his parole officer at his revocation hearing. In the context of parole revocation, due process includes affording the parolee "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)." Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972). The record shows that petitioner was informed of this right, yet he chose not to request the presence of adverse witnesses when given the opportunity. Petitioner concedes as much, but explains that he was told he would have another opportunity to request adverse witnesses. Petitioner, however, does not claim that he later made such a request. The Commission, nevertheless, informed him that his parole officer would attend the revocation hearing as an adverse witness, then failed to present that officer at the hearing.

In light of documented notice to petitioner of his confrontation rights and his undisputed failure to request the presence of adverse witnesses, we cannot conclude that due process required the probation officer to testify as an adverse witness. Cf. Gholston v. Jones, 848 F.2d 1156, 1161 (11th Cir.1988) (finding due process violated where parolee did not request presence of adverse witness, but record lacked evidence that parolee had been advised of right to confront adverse witnesses). Furthermore, even if petitioner justifiably withheld his request in reliance on the Commission's notice that the parole officer would appear as an adverse witness, we must still conclude that the parole officer's failure to testify was not a due process violation. Petitioner's right to confront adverse witnesses is not absolute. See Gagnon v. Scarpelli, 411 U.S. 778, 782 n. 5, 93 S.Ct. 1756, 1759-60 n. 5, 36 L.Ed.2d 656 (1973) ("While in some cases there is simply no adequate alternative to live testimony, we emphasize that we did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence."). We agree with the district court that the parole officer's reports contain sufficient indicia of reliability to be appropriate substitutes for live testimony. See Prellwitz v. Berg, 578 F.2d 190, 192-93 (7th Cir.1978).

II

We next address petitioner's claim that the Commission improperly "double-counted" his criminal history and drug use when it used those factors to calculate the severity of his offense under the guidelines, and also relied on them as a basis for exceeding guidelines. Double-counting occurs when the Commission justifies a decision beyond the guidelines by relying on the factors for calculating offense severity under the guidelines. See Castaldo v. United States Parole Comm'n, 725 F.2d 94, 96 (10th Cir.1984). The Commission, applying the guidelines for parole consideration, factored petitioner's criminal history and past drug use into his salient factor score. It then used his drug abuse history and criminal record as two of the aggravating factors warranting reincarceration for a period longer than recommended by the guidelines. We believe, however, that the Commission was not simply noting the fact of petitioner's prior criminal and drug abuse records. It noted the pattern of petitioner's behavior: his twenty-five year history of drug abuse was directly related to his serious criminal record, and he continued to use drugs during his incarceration and while free on parole. Clearly, the Commission's overriding concern was, as the district court noted, petitioner's unaltered pattern of drug abuse. We hold that the Commission did not impermissibly engage in double counting. Castaldo, 725 F.2d at 96.

III

Petitioner asserts that the Commission should not have relied on his criminal history, past drug use, or institutional incident reports to exceed the guidelines for reincarceration because it had already relied on those factors to enhance his guideline range during his initial incarceration. Petitioner, thus, appears to complain of multiple punishments for the same behavior.

We have noted that double jeopardy would not bar a parole revocation hearing based on violations previously considered in a substantially identical hearing. Turner v. United States Parole Comm'n, 934 F.2d 254, 260 (10th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 239, 116 L.Ed.2d 195 (1991). Parole determinations are not viewed as criminal punishment subject to the Double Jeopardy Clause. United States v. McGowan, 960 F.2d 716, 718 (8th Cir.1992); United States v. Whitney, 649 F.2d 296, 298 (5th Cir.1981); see also Mahn v. Gunter, 978 F.2d 599, 602 n. 7 (10th Cir.1992) (rejecting double jeopardy argument on...