Yearwood v. Nickles ( 1999 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS                            NOV 9 1999
    TENTH CIRCUIT                        PATRICK FISHER
    Clerk
    RANDAL E. YEARWOOD,
    Plaintiff-Appellant,
    v.                                                    No. 99-3155
    (D.C. No. 96-3393-RDR)
    MARVIN L. NICKLES, Colonel; U.S.                       (Kansas)
    ARMY CLEMENCY AND PAROLE
    BOARD; MICHAEL A. LANSING,
    Defendants-Appellees.
    ORDER AND JUDGMENT *
    Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is
    therefore ordered submitted without oral argument.
    Randal E. Yearwood, proceeding pro se, appeals the district court’s
    dismissal of his habeas corpus petition under 28 U.S.C. §2241, challenging the
    This order and judgment is not binding precedent, except under the
    *
    doctrines of law of the case, res judicata, or collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    Army Clemency and Parole Board’s (ACPB) revocation of his parole. He also
    seeks to proceed on appeal in forma pauperis.
    Mr. Yearwood was convicted of murder by general court-martial in 1980,
    and released on military parole in 1993. In January of 1995, his supervising parole
    officer reported that a urine sample given by Mr. Yearwood on December 1, 1994,
    tested positive for marijuana. As a result, Mr. Yearwood’s parole was suspended
    and a Preliminary Interview was conducted during which he admitted to using
    marijuana. The ACPB later ruled that a warrant was to issue for Mr. Yearwood to
    return to Ft. Leavenworth, Kansas for a parole revocation hearing.
    Prior to the hearing Mr. Yearwood was arrested on a state charge of
    assaulting a sixteen year old girl. Mr. Yearwood was incarcerated pending
    disposition of the charge, which was subsequently dismissed “with leave to restore
    as defendant is to answer to Federal parole violation.”
    At the parole revocation hearing Mr. Yearwood was accused of parole
    violations relating to the marijuana use, which he admitted, and the assault charge,
    which he denied. Mr. Yearwood submitted the affidavit of his neighbor, who
    claimed to have seen him at her home on the evening of the alleged assault. The
    neighbor did not appear for the hearing, and Mr. Yearwood asked the hearing
    officer to speak to her on the phone. The officer refused. The victim also did not
    testify at the hearing.
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    The ACPB revoked Mr. Yearwood’s parole based on the drug test and the
    assault, and granted him “street time” credit up to November 30, 1994, the date of
    his first parole violation. Mr. Yearwood filed a habeas corpus petition in federal
    district court, which denied relief. He now appeals to this court.
    We conclude that Mr. Yearwood has demonstrated “a financial inability to
    pay the required fees and the existence of a reasoned, nonfrivolous argument on
    the law and facts in support of the issues raised on appeal.” DeBardeleben v.
    Quinlan, 
    937 F.2d 502
    , 505 (10th Cir. 1991). Therefore we grant his request to
    proceed on appeal in forma pauperis.
    We review de novo the district court’s decision to deny habeas relief. Kell
    v. United States Parole Comm’n, 26 F.d 1016, 1019 (10th Cir. 1994). However,
    “[j]udicial review of a Parole Board’s decision . . . is a narrow one, and the
    Board’s decision should not be disturbed by the courts unless there is a clear
    showing of arbitrary and capricious action or an abuse of discretion.” Sotelo v.
    Hadden, 
    721 F.2d 700
    , 702 (10th Cir. 1983).
    Mr. Yearwood first contends that the assault charge should not have been
    considered in his parole revocation hearing because no preliminary interview was
    conducted on the matter. The relevant Department of Defense Directive does not
    require that all parole violations be the subject of an interview. Instead, the
    interview’s purpose is “to determine whether probable cause exists to establish
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    that a parolee has violated a condition of parole,” sufficient to trigger a parole
    revocation hearing. DOD 1324.5 §J 7(c) (1988) (emphasis added). Mr.
    Yearwood’s admission during his preliminary interview that he had used marijuana
    created sufficient probable cause for the ACPB to proceed with a parole revocation
    hearing. The record is clear that Mr. Yearwood in no way lacked notice that the
    assault charges were to be considered during this hearing.
    Contrary to Mr. Yearwood’s next assertion, “[a]rmy regulations clearly
    defeat any claim that revocation must be based upon a parolee’s conviction on
    subsequent criminal conduct.” Foster v. Tillery, 
    996 F. Supp. 1316
    , 1318 (D. Kan.
    1998). See DOD 1325.4 §J 7(a) (1988). The burden of proof in a revocation
    hearing is by a preponderance of the evidence, Army Regulation 15-130 §4-5(a),
    much lower than that for a criminal trial. The Constitution does not bar parole
    authorities from considering criminal acts in a number of circumstances where the
    parolee has not been convicted. See Campbell v. United States Parole Comm’n,
    
    704 F.2d 106
    (3d Cir. 1983).
    Mr. Yearwood also argues that the ACPB improperly denied him “street
    credit” for the period of time after his positive drug test. The parole board may
    order the forfeiture of “street credit” for periods during which the parolee was not
    in material compliance with the conditions of parole. DOD 1325.4 §J 8(b) (1988).
    Where there have been sporadic periods of misconduct, the ACPB may deny street
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    time credit from the date of the first episode of misconduct. 
    Tillery, 996 F. Supp. at 1319
    .
    The court notes that Mr. Yearwood’s reliance on Jelks v. United States Army
    Clemency and Parole Board, 
    1992 WL 190605
    (D. Kan.), is misplaced. The
    denial of street time credit in that case was defended only on section 8(a), which
    requires “convict[ion] of a new offense committed after being released on parole.”
    DOD 1325.4 § J8(a). Because no conviction resulted in Jelks, the denial of credit
    under that section was unauthorized. Mr. Yearwood, in contrast, is being denied
    street time credit pursuant to section 8(b), which merely requires that a parolee be
    found to have been “not materially in compliance with the conditions of parole.”
    
    Id. at 8(b).
    Because Mr. Yearwood violated the conditions of parole by smoking
    marijuana, the district court did not err or break precedent by denying him street
    time credit pursuant to section 8(b).
    Mr. Yearwood next argues that the ACPB had insufficient evidence before it
    to suspend his parole on the basis of the sexual assault charge. Specifically, he
    contends that the ACPB improperly weighed the hearsay evidence (the affidavit of
    Mr. Yearwood’s alibi witness, and the police report concerning the assault) and
    that the ACPB failed to consider Mr. Yearwood’s testimony on his own behalf.
    This claim fails for several reasons. First, the ACPB need only determine by a
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    preponderance of the evidence that the parolee has violated a condition of parole
    in order to revoke parole. AR 15-130, 4-5(a); DOD 1325.4 §J 7(a)(1988).
    Second, “[f]ormal rules of evidence do not apply to parole revocation hearings.
    The hearing officer and the ACPB may use any relevant evidence when
    considering a case for parole revocation.” AR 15-130, 4-5 (d)(4). It is well
    settled that the ACPB may consider hearsay evidence which is reasonably reliable
    in reaching its decision. See 
    Kell, 26 F.3d at 1021
    (quoting Maddox v. United
    States Parole Comm’n, 
    821 F.2d 997
    , 1001 (5th Cir. 1987)). Moreover, as the
    district court correctly pointed out, we cannot re-weigh the hearing officer’s
    assessment of the relative credibility of the alibi witness’ affidavit, Mr.
    Yearwood’s testimony, and the police report. We review only to determine
    whether there was a rational basis in the record to support the ACPB’s decision.
    
    Id. at 1019.
    Even if we agreed with Mr. Yearwood’s contentions, they would not
    get him far because the record clearly indicates that the ACPB also based its
    decision to revoke his parole on his positive drug test and admitted marijuana use.
    Finally, Mr. Yearwood claims that his rights to due process were violated
    when the hearing officer refused to speak to his alibi witness on the phone, and
    because the assault victim did not appear at the hearing. Revocation of parole is
    not part of a criminal prosecution, and thus “the full panoply of rights due a
    defendant in such a proceeding does not apply.” Morrissey v. Brewer, 408 U.S.
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    471, 480 (1972). It was within the hearing officer’s discretion to deny the
    witness’ telephone testimony, particularly when the officer had her affidavit and
    was willing to accept that she would affirm on the phone all that she said in her
    statement. DOD 1325.4 §J 7(d)(6) (1988). Although he was informed of his right
    to request the production of adverse witnesses, Mr. Yearwood never did so. “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 victim] to testify as an adverse witness.”
    
    Kell, 26 F.3d at 1019-20
    . Moreover, we note that Mr. Yearwood was represented
    during these proceedings by counsel provided by the Army’s Trial Defense
    Service. We see no grounds for his complaint that he was denied due process.
    For the foregoing reasons, the district court’s order is AFFIRMED.
    ENTERED FOR THE COURT
    Stephanie K. Seymour
    Chief Judge
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