Duckett, Phillip E. v. Quick, Margaret

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 8, 2001 Decided March 15, 2002

No. 00-7261

Phillip E. Duckett,

Appellant

v.

Margaret Quick, Director, D.C. Board of Parole, et al.,

Appellees

Appeal from the United States District Court

for the District of Columbia

(No. 98cv00831)

Beverly G. Dyer, Assistant Federal Public Defender, ar-

gued the cause for appellant. With her on the briefs was A.

J. Kramer, Federal Public Defender.

Mary L. Wilson, Assistant Corporation Counsel, argued

the cause for appellees. With her on the brief were Robert

Rigsby, Corporation Counsel, Charles L. Reischel, Deputy

Corporation Counsel, and Edward E. Schwab, Senior Coun-

sel.

Before: Ginsburg, Chief Judge, Rogers and Garland,

Circuit Judges.

Opinion for the Court filed by Chief Judge Ginsburg.

Ginsburg, Chief Judge: Phillip Duckett petitioned the Unit-

ed States District Court for a writ of habeas corpus, alleging

that the District of Columbia Board of Parole (BOP) revoked

his parole in violation of the Due Process Clause of the

Fourteenth Amendment to the Constitution of the United

States. The district court denied the petition and Duckett

appealed. Finding no merit in Duckett's claims, we affirm

the judgment of the district court, albeit for reasons distinct

from those given by the district court.

I. Background

In May, 1995 Duckett was released on parole. Just over a

year later he was arrested for failing to report to his parole

officer; as a result, in October, 1996 the BOP revoked his

parole. After unsuccessfully challenging the revocation in the

courts of the District of Columbia, Duckett petitioned the

district court for a writ of habeas corpus. Because the BOP

could not locate a usable audiotape recording of the original

parole revocation hearing, it granted Duckett a new hearing.

Duckett, who had the assistance of counsel at this second

hearing, raised two defenses. First, he argued that he did

not know he was required to report and denied that his parole

officer told him to report. Second, Duckett argued that

because he had found a job and a place to live and had stayed

out of trouble, the BOP should not revoke his parole based

upon a minor violation. Nonetheless, the BOP again revoked

Duckett's parole because of his failure to report.

Duckett renewed his habeas petition, which was denied by

the district court in October, 2000. The district court con-

cluded that Duckett had received all the process he was due

under Morrissey v. Brewer, 408 U.S. 471 (1972); the BOP's

revocation decision was supported by Duckett's admission

that he failed to report; and the BOP's failure to follow D.C.

municipal regulations did not deny Duckett due process.

Duckett v. Quick, No. 98-0831, slip op. at 2-3 (Oct. 4, 2000).

Duckett filed a notice of appeal, and the district court issued

a certificate of appealability.

II. Analysis

"The writ of habeas corpus shall not extend to a prisoner

unless ... [h]e is in custody in violation of the Constitution or

laws or treaties of the United States." 28 U.S.C.

s 2241(c)(3). Duckett challenges the BOP's revocation of his

parole as violating in a number of respects his constitutional

right not to be deprived of liberty without due process of law.

First, Duckett contends due process entails a substantive

component requiring the BOP to consider not only whether

he violated a condition of his parole but also whether "circum-

stances in mitigation suggest that the violation does not

warrant revocation." For this Duckett relies principally upon

Black v. Romano, 471 U.S. 606 (1985). Although the Court in

Black did not hold that due process always requires "that the

factfinder in a revocation proceeding ... be granted discre-

tion to continue probation or parole," it acknowledged that

"concerns for fundamental fairness would preclude the auto-

matic revocation of probation" in some circumstances. Id. at

612, 615 (citing Bearden v. Georgia, 461 U.S. 660, 672 (1983)).

Furthermore, "where such discretion exists ... the parolee

or probationer is entitled to an opportunity to show not only

that he did not violate the conditions, but also that there was

a justifiable excuse for any violation or that revocation is not

the appropriate disposition." Black, 471 U.S. at 612.

Black is of no help to Duckett because the record does not

indicate that the BOP revoked his parole based solely and

mechanically upon its finding he violated a condition of parole,

and the transcript of the revocation hearing confirms he had

the opportunity to argue that his violation was excusable and

that his parole should not be revoked. Duckett testified that

he did not recall being told to report to his parole officer,

presented to the BOP evidence that while on parole he had a

job and a place to live, and argued against revocation on those

grounds. The BOP, however, determined that the reporting

requirement was one of the most important conditions of

parole, and that Duckett's violation of that requirement was

"flagrant." Thus, the BOP appears to have considered both

the seriousness of Duckett's violation and the mitigating

factors he advanced. As a result, even if due process re-

quires the BOP to have exercised discretion before revoking

his parole, we cannot conclude that it failed to do so.

Duckett, noting that the hearing examiner "did not explicit-

ly find that [his] testimony that he did not recall being

instructed to report back was not credible," and again empha-

sizing the factors militating against revocation, also argues

that "the record in this case does not support a rational

conclusion that [he] was not suitable for continued parole." If

the BOP's decision were either totally lacking in evidentiary

support or were so irrational as to be fundamentally unfair,

then the revocation of his parole indeed would violate due

process. See Douglas v. Buder, 412 U.S. 430, 432 (1973)

(holding that revocation of probation "totally devoid of sup-

port" violates due process); Bearden, 461 U.S. at 672 (estab-

lishing substantive due process right not to have probation

revoked due to inability, despite reasonable efforts, to pay

fines or restitution, unless alternative punishments are inade-

quate).

Duckett has not made either showing, however. The BOP

had before it Duckett's admission that he failed to report, and

his parole officer's statement that he had instructed Duckett

upon his release to report back to him on June 5, 1995. Thus,

there was evidentiary support for the BOP's conclusion that

Duckett had violated a condition of his parole. And revoking

Duckett's parole for failing to report as instructed was not

fundamentally unfair. Unlike the violation at issue in Bear-

den, Duckett's violation was within his control. Furthermore,

we think the BOP's conclusion that failing to report as

directed is a major violation of parole was reasonable; as the

BOP explained, parole "is about accountability" and failing to

report prevents the Government from monitoring a parolee's

conduct. See United States v. Manfredonia, 341 F. Supp.

790, 795 (S.D.N.Y. 1972) ("The requirement to report, to

account, is centrally and necessarily implied in the probation-

er's status").

Next, Duckett argues that he was denied due process

because the BOP failed to produce "a record of the hearing

sufficient to establish compliance with due process require-

ments." More specifically, he claims that neither the BOP's

written decision nor the audiotape of his second revocation

hearing "documents a finding" that he was told to report.

The BOP did, however, state as a fact found in its "Order"

dated July 21, 1999 that Duckett had "[f]ailed to report as

directed" by his parole officer. Because the BOP's written

statement memorialized this finding, it is of no moment that

there are gaps in the tape of the hearing.

In a relatively undeveloped argument, Duckett contends

that he was denied "the right to confront and cross-examine

adverse witnesses," Morrissey, 408 U.S. at 489, because the

BOP did not allow him to cross-examine his parole officer and

did not find good cause why he should not be allowed to do so.

Indeed, the BOP did not find good cause why the officer's

testimony had to be admitted in documentary form, thereby

depriving Duckett of the opportunity to cross-examine him.

The right to cross-examine witnesses can be waived, however,

see Taylor v. United States, 414 U.S. 17, 19-20 (1973) (defen-

dant in criminal trial waived right to cross-examine witnesses

by failing to attend trial), and two circuits have recognized

specifically that the right to cross-examine witnesses in a

parole revocation hearing can be waived, see White v. White,

925 F.2d 287, 291-92 (9th Cir. 1989) (stating Morrissey right

to cross-examine can be waived but holding parolee's admis-

sion of parole violations did not constitute waiver); McBride

v. Johnson, 118 F.3d 432, 438-39 (5th Cir. 1997) (holding

parolee had "invoke[d]" right of cross-examination by ques-

tioning witness's absence at prior hearing and objecting to

proffered hearsay testimony).

There is no indication that Duckett, who was represented

by counsel at the revocation hearing, asked to cross-examine

his parole officer. Indeed, Duckett nowhere asserts that he

made such a request and, when asked at oral argument,

Duckett's counsel was unable to assert that Duckett had

invoked his right at the hearing. Because Duckett has failed

to establish that he did not waive his right to cross-examine

his parole officer, we cannot grant his petition on this ground.

Cf. Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (burden

rests on habeas petitioner to establish that he did not waive

his right to counsel).

Finally, Duckett presses most vigorously his argument that

the BOP denied him due process by failing to comply with

D.C. municipal regulations requiring the BOP to (1) exercise

discretion in determining whether violation of a condition

requires revocation of parole, (2) consider certain specific

factors, and (3) discuss each factor in its written decision.

D.C. Mun. Regs. tit. 28 ss 219.6, 219.8, 219.12. Duckett

contends that these regulations, like the regulations govern-

ing the parole determinations at issue in Greenholtz v. In-

mates of the Nebraska Penal and Correctional Complex, 442

U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369

(1987), create a liberty interest in parole and, most important,

that a violation of the regulations is therefore a denial of due

process.

Although it is obvious that in this case the BOP did not

comply with the D.C. regulation requiring it to discuss in its

written decision its consideration of each factor listed in

s 219.8 of the regulations, the BOP did not thereby deny

Duckett due process. Duckett's argument is based upon the

erroneous assumptions that his liberty interest in remaining

on parole arose from the regulations governing parole revoca-

tion, and that therefore due process required the BOP to

comply with the regulations. In fact, Duckett's constitutional

interest in remaining free on parole was independent of any

regulation governing revocation procedures. Morrissey, 408

U.S. at 480-82. Moreover, even when a liberty interest does

arise from a state or local regulation, the procedures required

before a person may be deprived of his constitutional right to

liberty are derived not from the regulation but from the

Constitution itself. See Greenholtz, 442 U.S. at 14-16 (dis-

cussing procedures required by the Constitution). The gen-

eral rule is that "[o]nce state law defines the substance,

constitutional law establishes the minimum procedures." Ar-

chie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988);

see also Brandon v. District of Columbia Board of Parole,

823 F.2d 644, 648-49 (D.C. Cir. 1987) ("state procedural law

requirements must be enforced in state courts under state

law"). Therefore, Duckett's argument that due process re-

quired the BOP to follow its own regulations must fail. The

procedures required by due process before one's parole may

be revoked, set out in Morrissey were, as we have held,

provided to Duckett to the extent they were not waived by

him.

Duckett invokes yet another claimed liberty interest, name-

ly, that of keeping his good time credits, which he claims were

"effectively invalidated" when the BOP revoked his parole.

See Wolff v. McDonnell, 418 U.S. 539 (1974). Because Duck-

ett had a liberty interest in remaining on parole, and the

parole revocation procedures required under Morrissey and

provided to Duckett are more extensive than those required

under Wolff for revocation of good time credits, Wolff, 418

U.S. at 563-72, Duckett's loss of good time credits could not

have violated the requirements of due process.

III. Conclusion

For the foregoing reasons the judgment of the district

court denying Duckett's petition for a writ of habeas corpus is

Affirmed.