Love, Leslie v. Sherrod, W.A. , 247 F. App'x 35 ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 15, 2007*
Decided September 6, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 06-3760
Appeal from the United States
LESLIE LOVE, District Court for the Southern
Petitioner-Appellant, District of Illinois
v. No. 03-CV-308 DRH
W. A. SHERROD,** David R. Herndon,
Respondent-Appellee. Judge.
ORDER
The Parole Commission revoked Leslie Love’s parole because he assaulted a
police officer and possessed a firearm. Love filed a petition for habeas corpus
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
**
W. A. Sherrod, the current warden at the Federal Corrections Institution in
Greenville, Illinois has been substituted for Darlene Veltri as respondent. See Fed. R.
App. P. 43(c).
No. 06-3760 Page 2
pursuant to 28 U.S.C. § 2241, which the district court denied. On appeal Love
argues principally that the Commission violated his due process rights by refusing
to subpoena witnesses for the revocation hearing, delaying the hearing, and denying
him a second preliminary interview. We affirm.
Love has been convicted twice of bank robbery and once of escaping from
federal custody. After his first bank robbery conviction, he was sentenced to 20
years’ imprisonment, and after his conviction for his escape and second bank
robbery, he was sentenced to 25 years’ imprisonment to run concurrently with his
first sentence. He has been paroled four times, and his parole has been revoked
each time. His sentence has been adjusted after each parole revocation, thus, he is
currently serving an aggregate sentence of more than 36 years’ imprisonment in a
federal facility in Illinois.
Most recently, Love was paroled in February 2001. Over the weeks that
followed, at a time when he was supposed to be living at a half-way house, the
police grew to suspect him of promoting prostitution by operating an escort service.
Police officers attempted to arrest Love, but he fled in his car and, while trying to
escape, accelerated and collided with two other cars, one of which was an unmarked
police car containing a detective. Love managed to speed away, evading arrest. The
Parole Commission issued a warrant charging Love with (1) promoting prostitution,
(2) leaving the scene of an accident, and (3) police evasion. Love was later arrested.
The police then obtained a search warrant for the three-bedroom apartment
that Love leased with his wife and out of which the police believed he was running
his escort service. In one of the three bedrooms, the only one containing men’s
clothing, they found a shotgun, shotgun shells, and applications bearing Love’s
signature for employment with the escort service. In other areas of the apartment,
they found pill bottles labeled with Love’s name and bills addressed to him. They
also arrested a woman in the apartment and charged her with prostitution.
Approximately two weeks after his arrest, a probation officer interviewed
Love about the charges in his arrest warrant. Love denied all charges and
requested a revocation hearing in the presence of an “adverse witness”— the woman
arrested for prostitution—and other “voluntary witnesses,” including his mother
and his wife. In May 2001 the Parole Commission advised Love in writing that it
had found probable cause to believe that he violated his parole by leaving the scene
of an accident and evading the police, and that it would hold a revocation hearing.
The Commission also stated that, at the hearing, it would consider two additional
charges: assault on a police officer and possession of a firearm. These new charges
were based on a supplemental warrant application, but Love was not given a second
preliminary interview to discuss them.
No. 06-3760 Page 3
In June Love wrote to the Commission to request the presence of four
additional witnesses at his revocation hearing—his former probation officer, a
police officer involved in the investigation, a co-defendant on an earlier drug charge,
and the director of the half-way house—though he did not specify the anticipated
content of their testimony. The Commission responded that it would not subpoena
his requested witnesses. It explained that his former probation officer’s testimony
would be irrelevant because she did not supervise Love during his most recent
parole, the police officer’s testimony would be redundant because two other officers
had been subpoenaed to testify to the same events, and his former co-defendant and
the half-way house director’s testimony was irrelevant because they were not
involved in Love’s charged parole violation. Further, the Commission commented
that Love had not provided information about how these witnesses were adverse to
him and had not explained the testimony he expected each to supply.
Love eventually had a revocation hearing at which the Commission heard
testimony from two police officers involved in the investigation and Love’s probation
officer. Although Love denied all the charges and again requested that witnesses be
subpoenaed, the Commission found that Love violated his parole by assaulting a
police officer and possessing a firearm, and revoked his parole. The Commission
also found that the assault involved using a car to run down a police officer in an
attempt to evade arrest, that Love violated his parole before he was released from
his half-way house, and that this was Love’s fourth parole violation. It concluded
that these aggravating factors warranted delaying his presumptive parole date
until after he completed a 120-month prison term—20 months beyond the Parole
Commission Guidelines recommendation of 78-100 months.
In June 2003 Love petitioned the district court for a writ of habeas corpus,
see 28 U.S.C. § 2241, challenging his parole revocation. In September 2006 the
district court adopted a magistrate judge’s report and recommendations and denied
the petition. Love timely appealed.
We review de novo the district court’s decision to deny Love’s petition for
habeas corpus. See Barrow v. Uchtman, 398 F.3d 597, 602 (7th Cir. 2005 ), cert.
denied, 126 S. Ct. 153 (2005). The Commission has broad discretion to make parole
determinations, and we will grant habeas corpus relief only when there is no
rational basis in the record for the Commission’s conclusions. See Slader v. Pitzer,
107 F.3d 1243, 1246 (7th Cir. 1997); Walrath v. Getty, 71 F.3d 679, 684 (7th Cir.
1995).
On appeal Love first argues that the Commission’s refusal to subpoena
witnesses on his behalf violated his right to due process. He claims that, because
these witnesses were not available for questioning, he was denied his constitutional
right to confront and cross-examine adverse witnesses.
No. 06-3760 Page 4
Although parolees have the right to a revocation hearing at which they can
present witnesses and cross examine adverse witnesses, see Morrissey v. Brewer,
408 U.S. 471, 489 (1972), the Commission’s regulations do not require it to
subpoena witnesses if the parolee cannot show that their testimony “is necessary to
the proper disposition of his case,” see 28 C.F.R. § 2.51(a)(2); Hanahan v. Luther,
693 F.2d 629, 636 (7th Cir. 1982). Love does not challenge the constitutionality of
the Commission’s regulation. Nor has he offered anything to show that his
proposed witnesses’ testimony would have affected the determination whether he
assaulted a police officer or possessed a firearm; thus the Commission acted within
its discretion when it refused to subpoena them. In any event, Love was not
deprived of his right to cross-examine adverse witnesses because most of Love’s
proposed witnesses were not adverse to him, and the one who could have offered
testimony adverse to Love—the investigating police officer—could have offered only
testimony that was redundant. And Love had every opportunity to question the
adverse witnesses who did attend the hearing, including his probation officer and
two police officers.
Love next argues that his due-process rights were violated by the lengthy
delay in holding his revocation hearing—Love was arrested in March 2001 and the
Commission found probable cause in April, but the revocation hearing was not held
until September. He contends that this delay was unreasonable and therefore, we
should presume that he was prejudiced by the lengthy passage of time.
Once probable cause has been established, a parole revocation hearing “shall
be held within a reasonable time.” Fed. R. Crim. P. 32.1(a)(2). And although the
Commission is required to hold a revocation hearing within 60 days of a finding of
probable cause, see 18 U.S.C. 4214(a)(1)(B), the Commission does not automatically
violate due process if it fails to adhere to this rule. See Hanahan, 693 F.2d at 634;
Camacho v. White, 918 F.2d 74, 79 (9th Cir. 1990); Donn v. Baer, 828 F.2d 487, 490
(8th Cir. 1987). Specifically, to determine whether a delay violates a defendant’s
due-process right, we balance the length of the delay, the reason for the delay, the
defendant’s assertion of his right to a prompt hearing, and the prejudice suffered by
the defendant. See United States v. Rasmussen, 881 F.2d 395, 398 (7th Cir. 1989);
Hanahan, 693 F.2d at 635; United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir.
2004); cf. Bryant v. Grinner, 563 F.2d 871, 871-72 (7th Cir. 1977) (abrogating rule
that a delay in excess of three months creates an irrebuttable presumption of
prejudice and requires defendant’s release).
The delay here did not violate Love’s constitutional rights. Though the
lengthy delay is troublesome, it is not enough to establish a due-process violation.
Cf. Hanahan, 693 F.2d at 634-35 (four-month delay raised “due process question,”
but was not unconstitutional where parolee did not request prompt hearing and was
No. 06-3760 Page 5
not prejudiced). Love has not shown that he asserted his right to a prompt hearing.
Nor has he indicated how this delay prejudiced him. Although he argues that the
passage of time might have blurred the witnesses’ memories, Love does not point to
any evidence suggesting that any witness’s memory was impaired or that any
testimony was tainted as a result of the delay.
Love then argues that the Commission violated its own regulation in denying
him a second preliminary interview to determine whether there was probable cause
for the additional charges that he assaulted a police officer and possessed a firearm.
The Commission’s regulations require it to hold a preliminary interview to
determine whether there is probable cause to believe that the parolee violated his
parole and whether a hearing should be held, see 28 C.F.R. § 2.48(b). Love contends
that this regulation requires the Commission to conduct a second interview if it
decides to add new charges after the first interview.
Here, a second preliminary interview would not have altered the result
because the Commission had already determined that there was probable cause to
believe that Love violated his parole, and had decided to hold a hearing. Moreover,
Love cannot show that the Commission violated his constitutional rights, which he
would have to do to qualify for habeas relief. See Estelle v. McGuire, 502 U.S. 62, 68
(1991); Turner v. Henman, 829 F.2d 612, 614 (7th Cir. 1987). Love has no due
process right to a preliminary interview on every charge that the Commission
intended to address at the revocation hearing. All that due process requires is a
“written notice of the claimed violations of parole,” Morrissey, 408 U.S. at 489, and
Love received such notice in the Commission’s May 2001 letter and supplemental
warrant.
Love next argues that the Commission incorrectly applied the re-parole
guidelines. He contends that the Commission first factored his assault of the police
officer into its calculation of his guidelines range and then considered the assault
again to support the decision to enhance his penalty above this range. Thus he
charges the Commission with improper double counting.
The guidelines are intended to assist the Commission in determining the
appropriate penalty to impose upon revocation of parole, but the Commission may
take into account aggravating circumstances and adjust the penalty accordingly.
See Augustine v. Brewer, 821 F.2d 365, 371 (7th Cir. 1987). Here, the Commission
did not double count the assault. To support its penalty enhancement, the
Commission considered Love’s recidivism and his not having even been released
from his half-way house when he violated his parole. And, the Commission may
weigh as an aggravating factor the nature of an offense used to determine the
guidelines range, which the Commisison did here when it found relevant that the
assault occurred while Love was attempting to avoid arrest. See Thomas v.
No. 06-3760 Page 6
Brennan, 961 F.2d 612, 620 (7th Cir. 1992). The Commission acted within its
discretion when it imposed the a penalty above the guidelines range.
Finally Love argues that there was no basis for the Commission to find that
the firearm belonged to him. But this argument is meritless. There was a rational
basis for the Commission’s finding, see Slader, 107 F.3d at 1246, given the evidence
that Love signed the lease for the apartment where the firearm was found, his
name was on documents and bills in the apartment, and men’s clothing was found
in the same bedroom as the firearm.
AFFIRMED.