# Smith v. Dunn

> District Court, N.D. Alabama · July 28, 2020

URL: https://www.frixlaw.com/law-library/cases/9989597

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** July 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION

TONY LEE SMITH, )
)
Petitioner, )
)
v. ) Case No.: 1:19-cv-01499-ACA-JHE
)
LEON BOLLING, Warden, )
)
Respondent. )
MEMORANDUM OPINION

Pro se petitioner Tony Lee Smith filed this action for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his April 30, 2018 parole revocation.
(Doc. 1). On May 26, 2020, the magistrate judge entered a report and
recommendation, recommending that the court dismiss the petition. (Doc. 22). Mr.
Smith filed timely objections to the report and recommendation (doc. 27) and a
motion to include or expand the record (doc. 28).
The court GRANTS the motion to expand the record (doc. 28) and has
considered the additional document attached to the motion, to the extent that it is
relevant to Mr. Smith’s objections.
Mr. Smith’s objections track the claims in his habeas petition. Specifically,
he addresses: (1) the timeliness of his parole revocation hearing; (2) the inability to
call his witnesses at the revocation hearing; and (3) whether false information was
used at the revocation hearing. (Doc. 27). The court addresses each objection in
turn below.
I. The Timeliness of the Parole Revocation Hearing

Mr. Smith’s first objection concerns the magistrate judge’s finding that Mr.
Smith’s challenge regarding the timing of his parole revocation hearing does not
entitle him to habeas relief. (Doc. 27 at 1–8).

A petitioner seeking habeas relief must show that he is in custody pursuant to
a judgment of a state court “in violation of the Constitution or the laws or treaties of
the United States.” 28 U.S.C. § 2254(a). To satisfy this standard, the petitioner must
demonstrate that the state court’s adjudication of his claim “resulted in a decision

that was contrary to, or involved an unreasonable application of, clearly established
Supreme Court holdings,” 28 U.S.C. § 2254(d)(1), or “resulted in a decision that was
based on an unreasonable determination of the facts,” 28 U.S.C. § 2254(d)(2). To

be an unreasonable application of Supreme Court case law, the ruling must be
“‘objectively unreasonable, not merely wrong; even clear error will not suffice.’”
Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017) (quoting Woods v. Donald, 575
U.S. 312, 317 (2015)).

Relevant to parole revocation, the Supreme Court has held that due process
requires “an information hearing structured to assure that the finding of a parole
violation will be based on verified facts and that the exercise of discretion will be

informed by an accurate knowledge of the parolee’s behavior.” Morrissey v.
Brewer, 408 U.S. 471, 484 (1972) (internal citations omitted). A hearing “must be
tendered within a reasonable time after the parolee is taken into custody,” and “[a]

lapse of two months . . . would not appear to be unreasonable.” Id. at 487-88.
Here, Mr. Smith asserts that his April 30, 2018 revocation hearing, which took
place five weeks after his March 26, 2018 arrest, violated his due process rights.

(Doc. 1 at 16). State court records reflect that on March 26, 2018, while on parole,
Mr. Smith was arrested on a variety of new charges.1 That same date, the Alabama
Board of Pardons and Paroles issued an arrest warrant for Mr. Smith for violating
conditions of his parole. (Id. at 19).

Mr. Smith claims that his due process rights were violated because his parole
revocation hearing took place outside the twenty-day limitation period contained in
Alabama Code § 15-22-32. (Doc. 27 at 1). That section states:

Whenever there is reasonable cause to believe that a prisoner who has
been paroled has violated his parole, the Board of Pardons and Paroles,
at its next meeting, may declare the prisoner to be delinquent, and time
owed shall date from the delinquency. The Department of Corrections,
after receiving notice from the sheriff of the county jail where the state
prisoner is being held, shall promptly notify the board of the return of

1 The pending charges against Mr. Smith include Alabama v. Tony Lee Smith, 11-DC-2018-
001435.00 (possession of a short barreled rifle or shotgun); 11-DC-2018-001436.00 (altering
identification of a shotgun); 11-DC-2018-001437.00 (first degree kidnapping); 11-DC-2018-
001440.00 (second degree possession of marijuana); and 11-DC-2018-001441.00 (possession of
drug paraphernalia). Although all of these charges were bound over to the grand jury, an
indictment against Mr. Smith has issued only on second degree kidnapping and domestic violence
charges. See Alabama v. Tony Lee Smith, 11-CC-2018-0001870.00. The other charges remain
pending before the grand jury. The court takes judicial notice of the criminal state court
proceedings involving Mr. Smith. See Paez v. Sec’y, Fla. Dept. of Corr., 947 F.3d 649, 652 (11th
Cir. 2020).
a paroled prisoner charged with violation of his or her parole.
Thereupon, the board, a single member of the board, a parole revocation
hearing officer, or a designated parole officer shall hold a parole court
at the prison or at another place as it may determine within 20 business
days and consider the case of the parole violator, who shall be given an
opportunity to appear personally or by counsel and produce witnesses
and explain the charges made against him or her …. If a hearing is not
held within the specified 20 business days, the parolee shall be released
back to parole supervision.

Ala. Code § 15-22-32(a). Mr. Smith asserts that, based on § 15-22-32(a), Alabama
has determined “20 business days” to be a reasonable time, and that this time began
to run on March 26, 2018, the date of his arrest. (Doc. 27 at 4–5).
But as the magistrate judge’s report and recommendation explains, the
Alabama Court of Criminal Appeals disagreed with Mr. Smith. (Doc. 22 at 7). In
a decision addressing Ms. Smith’s appeal of the circuit court’s dismissal of his
petition of a writ of certiorari seeking review of his parole revocation, the Alabama
Court of Criminal Appeals held:
[ . . . ] Smith argues that the start date in this case is March 26, 2018, the
date he was arrested for new offenses. But Smith does not provide any
authority to support his contention. The record shows that Smith
received notice of the parole-revocation hearing on April 11, that he
was declared delinquent on April 24, and that the parole-revocation
hearing was held on April 30. Contrary to Smith’s argument and
according to the language of § 15-22-32(a), Smith’s parole-revocation
hearing was “valid.”

Smith v. Alabama Board of Pardons and Paroles, CR-18-0192 at 4 (Ala. Crim. App.
May 17, 2019) (internal citations omitted).2
In his objections, Mr. Smith argues “[i]t is obvious that the trigger date was

26 March 2018 when the sheriff, the Department of Corrections, and the parole board
were all ‘promptly notified.’” (Doc. 27 at 4) (emphasis in original). Even if Mr.
Smith is correct, he provides no authority for his claim that exceeding the

twenty business day limitation prohibits any subsequent parole revocation. Rather,
as Respondent notes, had Mr. Smith objected to his detention solely on the parole
revocation arrest, and had no other charges been causing his detention, at best Mr.
Smith would have been released from custody back on parole.3 (Doc. 14 at 7). That

scenario has no bearing on whether the parole board could still revoke Mr. Smith’s
parole based on a violation of parole conditions. (Id.).
Moreover, interpretation of § 15-22-32(a)’s “trigger date” is a matter of state

law. In considering Mr. Smith’s claims, the Alabama Court of Criminal Appeals
found that April 11, 2018—the date Mr. Smith “received notice of the parole-

2 The memorandum opinion of the Alabama Court of Criminal Appeals is not in the record
in this case, but it is part of the record in Smith’s state court challenge to his parole revocation
which is available on Alacourt. See Smith v. Alabama Board of Pardons and Paroles, Case No.
03-CV-2018-000488.00 at Doc. 29. The court takes judicial notice of that memorandum opinion.
See Paez, 947 F.3d at 652.

3 The arrest warrant states that Smith, while on parole “has in the judgment of the
undersigned probation and parole officer violated the conditions of his parole . . .  You are hereby
given this written authority to take the said Smith Tony Lee into your custody and hold him until
the arrival of the warrant from the Department of Corrections, but not more than twenty days.”
(Doc. 1 at 19).
revocation hearing”—as the relevant date for considering timeliness under Alabama
Code § 15-22-32(a). Smith v. Alabama Board of Pardons and Paroles, CR-18-0192

at 4 (Ala. Crim. App. May 17, 2019).4 That determination, which controls whether
Mr. Smith was actually held beyond the twenty-day period he says is reasonable
under § 15-22-32(a), is a state court’s interpretation of a question of state law. And

such a question does not provide a basis for federal habeas relief. Estelle v. McGuire,
502 U.S 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions.”); Tejada v. Dugger,
941 F.2d 1551 (11th Cir. 1991) (questions of state law and procedure “rarely raise

issues of federal constitutional significance, because ‘[a] state’s interpretation of its
own laws provides no basis for federal habeas corpus relief, since no question of a
constitutional nature is involved.’”).

Mr. Smith argues that “the Alabama Court of Criminal Appeals interpretation
is unreasonable” (doc. 27 at 5), but he provides no binding authority for his assertion,
and he fails to demonstrate that the appellate court’s interpretation of Alabama Code
§ 15-22-32 is contrary to, or an unreasonable application of, clearly established

Supreme Court holdings. At best, Mr. Smith demonstrates that the Alabama Court

4 See Doc. 14-2 at 7 (April 11, 2018, Notice of Parole Court Hearing, stating “[a] report
of parole violation has been prepared dated 4/10/2018 . . . .”).
of Criminal Appeals misinterpreted state law, which is not a cognizable claim in a
habeas petition.

Moreover, as explained above, the Supreme Court requires only that a
revocation hearing be held within a “reasonable time.” Morrissey, 408 U.S. at 484.
Even with delayed hearings, to merit habeas relief, a petitioner must demonstrate

prejudice caused by that delay. See e.g., United States v. Taylor, 931 F.2d 842, 848
(11th Cir. 1991) (a delay of more than a year did not establish a basis for habeas
relief because the petitioner “suffered no harm by the one year delay . . . .”); United
States v. Barfield, 396 F.3d 1144, 1149 (11th Cir. 2005) (for a probation revocation

“it is not sufficient to prove official conduct that merely evidences a lack of eager
pursuit or even arguable lack of interest. Rather, the . . .  state’s action must be so
affirmatively wrong or its inaction so grossly negligent that it would be

unequivocally inconsistent with fundamental principles of liberty and justice to
require a legal sentence to be served in the aftermath of such action or
inaction . . . .”).
Assuming Mr. Smith could establish that the lack of a revocation hearing

within twenty business days of his arrest constituted a per se violation of his due
process rights, he has failed to show prejudice from that delay. Because of the new
criminal charges, Mr. Smith cannot demonstrate that, but for the allegedly untimely

revocation proceedings, he would have been released from detention. Without such
a showing, Mr. Smith is not entitled to habeas relief.
Accordingly, the court OVERRULES Mr. Smith’s first objection.

II. Deprivation of Witnesses
Mr. Smith objects to the magistrate judge’s finding that the deprivation of
witnesses at his parole hearing does not entitle him to habeas relief. (Doc. 27 at 8).

The magistrate judge recognized that the deprivation of witnesses violated Mr.
Smith’s due process rights. (Doc. 22 at 9). However, the magistrate judge also
correctly explained that to be entitled to relief, Mr. Smith must also demonstrate
prejudice from such a violation. (Id.) (citing Davis v. Ayala, 135 S.Ct. 2187, 2197–

98 (2015)).
In his objections, Mr. Smith summarizes what he believes would have been
the testimony of one witness, Miranda Humphrey. Setting aside that a summary of

anticipated testimony is hearsay, Mr. Smith failed to include any of this information
in his petition, consistent with his burden “to establish his right to habeas relief
and . . . [to] prove all facts necessary to show a constitutional
violation.” Blankenship v. Hall, 542 F.3d 1253, 1270 (11th Cir. 2008). But even if

Mr. Smith had included this material in his petition and could establish Ms.
Humphrey’s presumed testimony through an affidavit or other sworn declaration, he
still would not be entitled to habeas relief.

Mr. Smith asserts that Ms. Humphrey would have testified that Mr. Smith was
an overnight guest in the house where he was arrested; that the police illegally
entered the home; and that the police falsely claimed Mr. Smith was actively on

parole for assaulting a police officer. (Doc. 27 at 9). However, nothing in those
statements demonstrates how Mr. Smith suffered prejudice from the lack of Ms.
Humphrey’s testimony.

The hearing officer found that Mr. Smith was located in a bedroom where
officers found methamphetamine, marijuana, and a short barreled shotgun with an
obliterated serial number. (Doc. 14-2 at 19). The suggested testimony from Ms.
Humphrey has no bearing on whether Mr. Smith stayed in the bedroom where the

items were located, which alone constituted a violation of the terms of his parole.
See Taylor, 931 F.2d at 848 (probation revocation hearing does not require “proof
beyond a reasonable doubt that the defendant committed the alleged acts. All that is

required is that the evidence reasonably satisfy the judge that the conduct of the
probationer has not been as good as required by the conditions of probation.”)
(internal quotations omitted); Gholston v. Jones, 848 F.2d 1156, 1160 (11th Cir.
1988) (fact that criminal charges underlying parole revocation are ultimately

dismissed does not invalidate revocation proceedings based on such charges).
Because Mr. Smith has failed to demonstrate any prejudice from the denial of
his requested witnesses, the court OVERRULES Mr. Smith’s second objection.
III. Parole Court’s Use of False Information
Mr. Smith objects to the magistrate judge’s finding that he failed to show that

any false information was “knowingly” used in his parole revocation proceedings.
(Doc. 27 at 10). In evaluating this issue in his report and recommendation, the
magistrate judge explained that the Board of Pardons and Paroles incorrectly
referred to Ms. Smith’s past crime as “as either a violent Class A offense or a sex

crime.” (Doc. 22 at 11). The magistrate judge then explained that Respondent
argued this error was harmless because according to Respondent, Mr. Smith’s parole
was “‘revoked because he committed five new offenses.’” (Doc. 22 at 11) (quoting

Doc. 14 at 10). Mr. Smith challenges the magistrate judge’s finding that he
“committed” five new offenses. (Doc. 27 at 11). But it is clear from the magistrate
judge’s report that the magistrate judge did not make such a finding. Rather, he
summarized and quoted from Respondent’s brief in explaining Respondent’s

argument.
Mr. Smith correctly asserts he has not been convicted of any new charges.
(Doc. 27 at 11). And the magistrate judge’s report acknowledges as much. The

magistrate judge also noted that Mr. Smith’s claim that he was presumed innocent
of the new offenses is not relevant to whether his parole was properly revoked, and
the magistrate judge correctly found that Mr. Smith could be acquitted of all new
charges yet still properly be subject to a parole revocation. (Doc. 22 at 11 n.7)
(quoting Morrissey, 408 U.S. at 484).
Finally, Mr. Smith argues the parole revocation was filed in case CC-05-922,

which the Eleventh Circuit Court of Appeals previously vacated. (Doc. 27 at 12–
13). The magistrate judge acknowledged that error, but he found the error harmless.
(Doc. 22 at 11). In addition, the magistrate judge explained that Mr. Smith had failed

to show prejudice from this error. (Id.). In his objections, Mr. Smith again fails to
demonstrate any prejudice from this error. Rather, he challenges the validity of the
other underlying convictions, and he asserts that during his April 30, 2018 parole
hearing he “was being held naked in a barred cell sleeping on concrete after being

severely beaten by gang members.” (Doc. 27 at 13). These facts form the basis of
Smith’s civil rights claims in Smith v. Odom, Case No. 2:18-cv-01375-CLM-JHE
(N.D. Ala.), and they do not entitle Mr. Smith to habeas relief based on the parole

revocation. Moreover, the court need not consider objections concerning arguments
that Mr. Smith did not raise “in the first instance to the magistrate judge.” Williams
v. McNeil, 557 F.3d 1287, 1290 (11th Cir. 2009).
Accordingly, the court OVERRULES Mr. Smith’s third objection.

IV. Conclusion
Having carefully reviewed and considered de novo all the materials in the
court file, including the magistrate judge’s report and recommendation and Mr.
Smith’s objections, the court ADOPTS the magistrate judge’s report and
ACCEPTS his recommendation. The court OVERRULES Mr. Smith’s objections
and DISMISSES the petition for a writ of habeas corpus WITH PREJUDICE.
In addition, the court DENIES a certificate of appealability because the
petition does not present issues that are debatable among jurists of reason. 28 U.S.C.
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The court will enter a separate order consistent with this memorandum
opinion.
DONE and ORDERED this July 28, 2020.
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9989597. Public record. Not legal advice.