the petitioner’s confrontation rights at his revocation hearing stemmed from the Due Process Claus, not the Sixth Amendment
How later courts described this case
- the petitioner’s confrontation rights at his revocation hearing stemmed from the Due Process Claus, not the Sixth Amendment
Written by the judges who cited it.
The opinion
Case: 13-30776 Document: 00512885296 Page: 1 Date Filed: 12/30/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30776 United States Court of Appeals
Fifth Circuit
FILED
WILLIAM POWELL, December 30, 2014
Lyle W. Cayce
Petitioner - Appellee Clerk
v.
LYNN COOPER, Warden, Avoyelles Correctional Center,
Respondent - Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 1:12-CV-00296
Before DAVIS, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
William Powell filed a pro se petition for habeas corpus pursuant to 28
U.S.C. § 2254, challenging the revocation of his parole. While on parole, Powell
was arrested, but the charges were subsequently dismissed. Nevertheless, the
State moved forward with parole revocation proceedings. At his preliminary
probable cause hearing, neither the alleged victim nor the officers that
observed the initial key events testified. The preliminary hearing officer found
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 13-30776 Document: 00512885296 Page: 2 Date Filed: 12/30/2014
that there was probable cause to charge Powell with a violation of parole based
on an investigating officer’s testimony as to what the other on-scene officers
and the alleged victim had told him. At the final hearing, the State did not
present any witnesses, but the parole board revoked Powell’s parole based on
the evidence presented at the probable cause hearing. After his state court
appeals were denied, Powell filed the instant § 2254 petition claiming, inter
alia, that his due process rights were violated when he was denied the right to
confront and cross-examine the witnesses against him at his parole revocation
hearings. The district court granted Powell’s petition and the State now
appeals, arguing that Powell’s claims are time-barred, unexhausted, and
meritless. For the reasons that follow, we reverse the district court’s decision.
I.
A.
In 1988, Powell was convicted of attempted aggravated rape and
sentenced to 35 years in prison. He was released in 2006 under parole
supervision. On February 15, 2008, he was arrested and charged with
attempted forcible rape. The district attorney subsequently dismissed the
charge because the alleged victim failed to appear or otherwise cooperate with
the prosecution. Nevertheless, Powell remained in custody subject to a
detainer for potentially violating his parole obligation to “refrain from
engaging in any type of criminal conduct.” Powell v. La. Parole Bd., No. 2010-
2058, 2011 WL 2024478, at *1 (La. Ct. App. May 6, 2011).
The State held a preliminary hearing, at which Powell was represented
by counsel. Powell’s parole officer stated at the hearing that she was unable
to get in contact with the alleged victim, despite various attempts. The parole
officer also revealed that the home address the alleged victim had provided to
the police was for an abandoned house. Additionally, the Port of New Orleans
2
Case: 13-30776 Document: 00512885296 Page: 3 Date Filed: 12/30/2014
Harbor Police Department officers who were first at the scene of the alleged
crime did not testify at the hearing. The State’s evidence at the hearing
consisted of the offense reports prepared by the police after they arrested
Powell and testimony from the investigating officer—Detective Neely of the
New Orleans Police Department Sex Crimes Unit. Detective Neely testified
that he was called to the scene of the alleged crime after Harbor Police saw a
woman, naked from the waist down, jump out of a parked van, crying for help.
Neely testified that he spoke with the alleged victim, who said she had been at
a bar in New Orleans, celebrating her friend’s engagement, when she
encountered Powell, who she assumed was with the party. She told Powell
that she wanted to go to a friend’s house and he offered to drive her there.
Powell drove her to a secluded area in his van and tried to talk her into
consensual sex. When she refused, he struggled with her, removing her pants
and underwear. Then a police car pulled up behind the parked van and turned
on its red and blue lights, at which point she jumped out and screamed for help.
Detective Neely also testified that the alleged victim identified Powell at the
scene as the man who had attempted to rape her. Powell had the opportunity
to cross-examine Detective Neely.
Relying on the police reports and Detective Neely’s testimony, the
preliminary hearing officer decided that the preponderance of the evidence
indicated probable cause to conclude that Powell committed an offense.
Following the preliminary hearing, the State held a final parole revocation
hearing. The only witness to testify at the final hearing was Powell’s mother
on Powell’s behalf; the State did not offer any additional evidence. Based on
the preliminary hearing and offense reports, the parole board revoked Powell’s
parole.
3
Case: 13-30776 Document: 00512885296 Page: 4 Date Filed: 12/30/2014
B.
Powell challenged the parole board’s decision in state court, arguing,
among other things, that the State violated his Sixth Amendment right to
confront and cross-examine adverse witnesses. The Louisiana state court
commissioner who considered Powell’s case issued a report recommending that
the parole board’s decision be upheld, noting that the parole board was
authorized to consider hearsay evidence in making its determination. In
response to Powell’s claim that he was denied his right to confront and cross-
examine adverse witnesses at his revocation hearings, the commissioner
stressed that Powell was given the opportunity to cross-examine one of the
investigating officers who was present at the scene of the incident. The
Louisiana district court adopted the commissioner’s report, affirmed the parole
board’s decision, and dismissed Powell’s appeal with prejudice. The Court of
Appeal of Louisiana affirmed, also finding no error in the commissioner’s
recommendation. Powell v. La. Parole Bd., No. 2010 CA 2058, 2011 WL
2024478, at *2 (La. Ct. App. May 6, 2011). The Louisiana Supreme Court
denied Powell’s application for supervisory or remedial writs. Powell v. La.
Parole Bd., 76 So. 3d 1149 (La. 2011).
Powell next filed the instant pro se application for habeas corpus
pursuant to 28 U.S.C. § 2254. His petition contained four numbered claims,
including, as relevant here, that he was denied his Sixth Amendment right to
confront and cross-examine witnesses at his parole revocation hearing. 1 The
1 The State correctly notes that Powell’s confrontation rights stem from the Due
Process Clause of the Fourteenth Amendment, not the Confrontation Clause of the Sixth
Amendment. See Morrissey v. Brewer, 408 U.S. 471, 482 (1972); Curtis v. Chester, 626 F.3d
540, 548 n.4 (10th Cir. 2010).
4
Case: 13-30776 Document: 00512885296 Page: 5 Date Filed: 12/30/2014
State responded that Powell’s claims were time-barred, unexhausted, and
without merit.
The matter was referred to a magistrate judge, who recommended that
Powell’s § 2254 application be granted and that the revocation of his parole be
reversed. The magistrate judge determined that Powell’s § 2254 application
was timely filed pursuant to 28 U.S.C. § 2244(d)(1)(A) and that he exhausted
his state law remedies through his direct appeals to the state district court,
appellate court, and state supreme court. The magistrate judge ultimately
concluded that the State had indeed violated Powell’s due process rights to
confront and cross-examine adverse witnesses, because the State’s only
evidence presented at Powell’s revocation hearings was hearsay. The
magistrate judge noted that while parolees who request revocation hearings
only have a “qualified right” to confront and cross-examine witnesses, this
circuit’s case law holds that hearsay evidence alone is insufficient to support
revocation of parole. The magistrate judge concluded that since the
preliminary hearing decision was based solely on hearsay, and since the parole
board relied entirely on the preliminary hearing, the parole board’s final
decision was also based solely on hearsay. The district court adopted the
magistrate judge’s report and recommendation, and granted Powell’s § 2254
application. The State timely appealed.
Powell next moved for a Certificate of Appealability (“COA”) to add to
the issues on appeal the claims for which he was denied relief. The district
court denied Powell a COA and thus the only issue before us is the State’s claim
that the district court erred in holding that Powell was denied his right to
5
Case: 13-30776 Document: 00512885296 Page: 6 Date Filed: 12/30/2014
confront and cross-examine adverse witnesses at his parole revocation
hearing. 2
II.
In a habeas corpus appeal, we review a district court’s findings of fact for
clear error and its conclusions of law de novo. Martinez v. Johnson, 255 F.3d
229, 237 (5th Cir. 2001). Since Powell filed his federal habeas petition after
the Antiterrorism and Effective Death Penalty Act (“AEDPA”) came into effect,
he can obtain habeas relief only if his adjudication in state court “(1) resulted
in a decision that was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding.” Robertson v. Cain, 324 F.3d 297, 301-02 (5th Cir. 2003) (quoting
28 U.S.C. § 2254(d)(1)-(2)).
III.
The State argues that the state court reasonably applied Supreme Court
precedent when it denied Powell’s due process claim. 3 To be entitled to habeas
2 Powell’s brief on appeal includes arguments that the state law pursuant to which his
parole was revoked “is an unconstitutional bill of attainder, ex post facto violation (as applied
to him), and a law impairing the obligation of a contract.” He argues further that his
Fourteenth Amendment right to due process was violated because his preliminary probable
cause hearing was not held within the time limit set by law. Powell petitioned this court for
a COA on these arguments, but that motion was denied. Powell v. Cooper, No. 13-30776 (5th
Cir. filed June 13, 2014). As a result, we will not consider Powell’s claims that were denied
by the district court. See, e.g., Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011), cert.
denied, 132 S. Ct. 2374 (2012) (“Because [the petitioner’s] argument falls outside the scope of
the COA, we may not address it here.”).
3 The State also contests the district court’s conclusion that Powell timely filed his
federal habeas petition and that he exhausted his due process confrontation claim. See 28
U.S.C. § 2244(d)(1) (stating that petitions for writs of habeas corpus filed by persons “in
custody pursuant to the judgment of a State court” are subject to a one-year period of
limitation); Day v. McDonough, 547 U.S. 198, 205-06 (2006) (explaining that the exhaustion
doctrine requires state prisoners “to pursue remedies available in state court” before invoking
6
Case: 13-30776 Document: 00512885296 Page: 7 Date Filed: 12/30/2014
relief, Powell must show that the state court’s judgment “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1). There is no question that federal due process
rights guarantee both a preliminary hearing to determine whether there exists
a reasonable ground to believe that the parolee violated his parole and a final
revocation hearing that leads to a “final evaluation of any contested relevant
facts and consideration of whether the facts as determined warrant
revocation.” Morrissey v. Brewer, 408 U.S. 471, 485-88 (1972). These
requirements are clearly established, as determined by the Supreme Court.
See id. The “minimum requirements” of due process at the final revocation
hearing include:
(a) written notice of the claimed violations of parole; (b) disclosure
to the 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 parole.
Id. at 489 (emphasis added).
In granting Powell’s habeas petition, the district court relied on our
opinion in McBride v. Johnson, 118 F.3d 432, 438 (5th Cir. 1997), which
interpreted Morrissey to conclude that a parole board violates a parolee’s due
process rights to confrontation and cross-examination when the board revokes
parole based on hearsay evidence alone. McBride, however, did not interpret
federal habeas jurisdiction). Because we hold that the district court incorrectly resolved the
merits of Powell’s due process claim, we need not rule on the State’s timeliness and
exhaustion arguments.
7
Case: 13-30776 Document: 00512885296 Page: 8 Date Filed: 12/30/2014
Morrissey within the framework of AEDPA and therefore did not conclude that
the Supreme Court had clearly established that parole may not be revoked
solely on the basis of hearsay evidence. Id. at 436; cf. 28 U.S.C. § 2254(d)(1)
(providing for habeas relief for state court decisions that are “contrary to, or
involve[] an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States”). Indeed, in McBride
we indicated that “[w]e have since added some flesh to the basic Morrissey
framework,” and only then discussed the trouble with relying exclusively on
hearsay at a revocation hearing. 118 F.3d at 438.
It was necessary to add “flesh to the basic Morrissey framework” because
the Supreme Court has substantively discussed the due process right to cross-
examination and confrontation at revocation hearings in only two cases,
neither of which explicitly detailed the contours of the right. See Gagnon v.
Scarpelli, 411 U.S. 778 (1973); Morrissey, 408 U.S. 471. In Morrissey, the Court
had before it a habeas petitioner whose parole was revoked without any
hearing at all. 408 U.S. at 473. The Court outlined the requirements of a
probable cause and final revocation hearing, including a qualified right to
cross-examine and confront adverse witnesses, but did not have cause to
expand upon or apply these rights. Id. at 488-89. “We cannot write a code of
procedure,” the Court explained; “that is the responsibility of each State.” Id.
at 488. In Gagnon, decided less than a year later, the Court held only that the
Morrissey framework applies in the probation as well as the parole context,
and determined that a probationer was wrongly denied both a preliminary and
final revocation hearing. 411 U.S. at 791. The Supreme Court has not further
defined the due process requirements of revocation hearings, leaving that task
to the state and lower federal courts.
8
Case: 13-30776 Document: 00512885296 Page: 9 Date Filed: 12/30/2014
We have repeatedly examined the contours of the due process right to
confrontation, but, as the Supreme Court has cautioned, AEDPA “prohibits the
federal courts of appeals from relying on their own precedent to conclude that
a particular constitutional principle is ‘clearly established’” by the Supreme
Court. Lopez v. Smith, 135 S. Ct. 1, 2 (2014) (per curiam); see also Glebe v.
Frost, 135 S. Ct. 429, 431 (2014) (stating that a circuit court “had no
justification for relying on” its own precedent that did not arise under AEDPA);
Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per curiam) (reversing circuit
court for framing the Supreme Court’s precedents at an overly high level of
generality). Indeed, “[c]ircuit precedent cannot ‘refine or sharpen a general
principle of Supreme Court jurisprudence into a specific legal rule that this
Court has not announced.’” Lopez, 135 S. Ct. at 4 (quoting Marshall, 133 S.
Ct. at 1450). We therefore cannot look to our own, non-AEDPA precedent, such
as McBride, to decide whether the state court’s denial of Powell’s due process
confrontation claims involved an unreasonable application of federal law as
determined by the Supreme Court.
Neither may we look to the Supreme Court’s significantly more robust
Confrontation Clause jurisprudence in assessing the state court’s decision.
The right to confrontation guaranteed by the Sixth Amendment Confrontation
Clause is not the same as that found in the Fourteenth Amendment Due
Process Clause. See Barnes v. Johnson, 184 F.3d 451, 455 (5th Cir. 1999);
Curtis v. Chester, 626 F.3d 540, 544 (10th Cir. 2010) (“Sixth Amendment rights
are not applicable in parole revocation hearings because those hearings are not
‘criminal prosecutions.’ All the circuit courts that have expressly considered
this issue agree.” (internal citation omitted)). “Thus, we are left with the due
process guarantees specified in Morrissey. But Morrissey did not clarify how
courts should determine when and how prisoners have a right to confront
9
Case: 13-30776 Document: 00512885296 Page: 10 Date Filed: 12/30/2014
adverse witnesses at revocation hearings.” Curtis, 626 F.3d at 545 (internal
citation omitted).
In its decision denying Powell’s claims, the state court acknowledged
that Powell had a right to confront and cross-examine adverse witnesses under
Morrissey. The state court determined that his rights were satisfied because
he had the opportunity “to cross examine one of the investigating officers who
was present at the scene of the incident.” The state court was apparently
referring to Detective Neely, who testified at the preliminary hearing, but
whose testimony principally amounted to recounting what the alleged victim
and the officers first at the scene had told him. This would not satisfy Powell’s
due process rights under our case law. See McBride, 118 F.3d at 438. Our
task, however, is to determine whether the state unreasonably applied clearly
established federal law as determined by the Supreme Court, not as
determined by our own precedent. See Lopez, 135 S. Ct. at 4. While the
Supreme Court has said that a parolee has a due process confrontation right,
it has never defined the contours of that right and the Court has repeatedly
warned the circuit courts “against framing [its] precedents at . . . a high level
of generality.” Id. (internal quotation marks omitted).
We do not suggest that the Supreme Court must have previously applied
a particular rule or that a rule must be defined with great specificity for it to
be “clearly established.” We hold only that the contours of the due process
right to confrontation in revocation proceedings have not been sufficiently
clearly established by the Supreme Court for us to hold that the state court
unreasonably applied federal law when it determined that Powell’s
confrontation rights were satisfied by his ability to confront and cross-examine
Detective Neely. Not only has the Supreme Court declined to establish the
precise dimensions of this confrontation right, it has emphasized that “there is
10
Case: 13-30776 Document: 00512885296 Page: 11 Date Filed: 12/30/2014
no thought to equate [a revocation hearing] to a criminal prosecution in any
sense” and “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.” Morrissey, 408 U.S. at 489. Thus, the Court
has made clear that there is no categorical bar to using hearsay testimony in
revocation proceedings, explaining that “[w]hile 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.” Gagnon, 411 U.S. at 782 n.5. Given the imprecision
with which the Supreme Court has defined the due process confrontation right,
we cannot hold that the state court’s interpretation of that right, as applied in
this case, was an unreasonable application of clearly established federal law
as determined by the Supreme Court. See Lopez, 135 S. Ct. at 3; see also
Gagnon, 411 U.S. at 789 (“In a revocation hearing[] . . . formal procedures and
rules of evidence are not employed.”). We by no means recede, however, from
our own precedent applying due process confrontation rights and will continue
to apply our precedent when not forbidden from doing so by AEDPA and
Supreme Court decisions.
Because we cannot hold that the state court’s interpretation of the due
process right to cross-examination and confrontation in parole revocation
proceedings resulted in a decision that was contrary to or involved an
unreasonable application of clearly established federal law as determined by
the Supreme Court in this case, we hold that the district court erred in
granting Powell’s habeas corpus application. We therefore REVERSE the
judgment of the district court and DISMISS Powell’s petition.
11