Morgan v. Wainwright

Decision Date17 May 1982
Docket NumberNo. 80-5453,80-5453
Citation676 F.2d 476
PartiesRichard Lee MORGAN, Petitioner-Appellant, v. Louie L. WAINWRIGHT, Secretary of the Dept. of Offender Rehabilitation and Jim Smith, Attorney General of the State of Florida, Respondents-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Richard G. Pippinger, Tampa, Fla., for petitioner-appellant.

Eula Tuttle Mason, Deborah A. Osmond, Asst. Attys. Gen., Tampa, Fla., for respondents-appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before FAY, ANDERSON and CLARK, Circuit Judges.

R. LANIER ANDERSON, III, Circuit Judge:

The appellant, Richard Lee Morgan, a prisoner in the Florida State Penitentiary System, filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. On the report and recommendation of a magistrate, the district court summarily dismissed Morgan's petition. Morgan appeals to this court raising the sole question presented in his petition for habeas corpus: Whether the due process clause or equal protection clause requires a state to impanel a jury to determine a disputed question of identity in a probation revocation hearing. Finding that Florida's refusal to afford Morgan a jury in such proceedings did not violate any of his constitutional rights, we affirm the order of the district court.

I. FACTS AND PROCEEDINGS

Morgan originally pled guilty to two counts of robbery and was placed on probation for two concurrent terms of fifteen years. During his probationary period, Morgan was charged by his probation supervisor with the commission of another robbery. Morgan denies that he committed this third robbery, and he requested at his probation revocation hearing that the court impanel a jury to determine this disputed issue of identity. The court denied this request, and, after a factual hearing, found that Morgan had committed the robbery. The court revoked Morgan's probation and sentenced him to two consecutive terms of life imprisonment.

Morgan appealed the revocation order to the Florida District Court of Appeals, again raising his claim of a right to a jury on the question of identity. The district court of appeals denied Morgan's claim, expressly rejecting language in an earlier opinion that suggested such a right to a jury might exist in Florida, and affirmed the order of revocation. Morgan v. State, 352 So.2d 161 (Fla.Dist.Ct.App.1977). Morgan thereafter sought federal habeas corpus relief. 1

II. DUE PROCESS

Morgan's major argument for requiring a jury to determine questions of identity in a probation revocation hearing is grounded on the due process clause of the Fourteenth Amendment. The due process clause undoubtedly imposes some restrictions on the power of states to revoke summarily a probationer's conditional liberty. Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). In delineating the bounds of these restrictions, we are mindful of the guidelines laid down by the Supreme Court in the Gagnon and Morrissey cases.

In Gagnon and Morrissey, the Supreme Court confronted the questions of what procedural safeguards the Constitution requires for, respectively, probation and parole revocation proceedings. The state had revoked the conditional liberty of the petitioners in Gagnon and Morrissey without providing those petitioners with even the most minimal hearing. In holding that such action offended the due process clause, the court set forth "the minimum requirements of due process." These requirements include:

"(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a 'neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole."

Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 1761, 36 L.Ed.2d 656 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 2604, 33 L.Ed.2d 484 (1972)) (bracketed material inserted by Gagnon Court) (emphasis added). Although neither case directly raised the issue of a right to a jury in a probation revocation proceeding, the Court's view that "a 'neutral and detached' hearing body such as a traditional parole board," satisfies the minimum requirements of due process which seem to bear adversely on Morgan's claim.

The Gagnon and Morrissey opinions evidence a concern for safeguarding the liberty interests of the probationer and the parolee without encumbering state revocation hearings with unwieldy and impractical procedural requirements. Morrissey acknowledged that "(g)iven the previous conviction and the proper imposition of conditions, the state has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole." 408 U.S. at 483, 92 S.Ct. at 2601. In setting forth the due process requirements of the "informal hearing" envisioned by the Court, the Court stressed:

We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.

We have no thought to create an inflexible structure for parole revocation procedures. The few basic requirements set out above, which are applicable to future revocations of parole, should not impose a great burden on any State's parole system. Control over the required proceedings by the hearing officers can assure that delaying tactics and other abuses sometimes present in the traditional adversary trial situation do not occur. Obviously a parolee cannot relitigate issues determined against him in other forums, as in the situation presented when the revocation is based on conviction of another crime.

Id. at 489-90, 92 S.Ct. at 2604-05.

The Court in Gagnon again expressed reluctance to allow the due process clause to convert probation revocation proceedings into full-fledged criminal trials. In declining to adopt a per se rule requiring appointed counsel for all indigent probationers in revocation hearings, Gagnon observed that attempts to mold revocation proceedings into a criminal trial might distort the probation process and its aims:

The role of the hearing body itself, aptly described in Morrissey as being "predictive and discretionary" as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the rehabilitative needs of the individual probationer or parolee. In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate rather than to continue nonpunitive rehabilitation. Certainly, the decisionmaking process will be prolonged, and the financial cost to the State-for appointed counsel, counsel for the State, a longer record, and the possibility of judicial review-will not be insubstantial.

(D)ue process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed.

411 U.S. at 787-88, 93 S.Ct. at 1762-63. The Court further noted that "there are critical differences between criminal trials and probation or parole revocation hearings, and both society and the probationer or parolee have stakes in preserving these differences." Id. at 788-89, 93 S.Ct. at 1763. Among the differences between criminal trials and probation revocation proceedings that the Court contrasted was the presence of a lay jury in the criminal context and the reliance on a "hearing body ... familiar with the problems and practice of probation" in the revocation proceeding. Id. at 789, 93 S.Ct. at 1763.

Thus, the language and reasoning of Gagnon and Morrissey reveal that the Court did not contemplate a jury as one of the due process requirements in a probation revocation hearing. Indeed, the administrative and rehabilitative considerations that the Court found persuasive as a countervailing state interest strongly militate against imposing a constitutional jury requirement. The presence of a jury would probably entail the need for some sort of formalized rules of evidence-precisely what Gagnon and Morrissey denied would be necessary. 411 U.S. at 789, 93 S.Ct. at 1763; 408 U.S. at 489, 92 S.Ct. at 2604; concomitant with using a jury would be voir dire, jury instructions, and other cumbersome procedures. The task of supervising a jury would perhaps create in the hearing body the most heightened "self-consciousness of its quasi-judicial role," thereby undermining the rehabilitative goals of the probation system. We must recall that furthering the reintegration of the probationer into society, and not discovering and punishing his every transgression (i.e., a criminal prosecution), is the primary function of the probation supervision process. As the Court in Gagnon noted, an informal hearing to consider probation revocation or other corrective measures is consistent with these aims, a full-fledged criminal jury trial is not. See 411 U.S. at 788-89, 93 S.Ct. at 1762-63.

Morgan points out that Gagnon and Morrissey only set forth the "minimum requirements of due process" and that Gagnon recognizes that in some circumstances more (e.g., appointed counsel) may be required. Morgan urges ...

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