Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83 C 102 -- John W. Reynolds, Judge.
Before WOOD and CUDAHY, Circuit Judges, and KELLEHER, Senior District Judge.*fn*
KELLEHER, Senior District Judge. This is an appeal from an order of the United States District Court for the Eastern District of Wisconsin denying petitioner-appellant's petition for a writ of habeas corpus.
On October 9, 1978, petitioner-appellant Curties Lee Thompson ("Thompson") was convicted of burglary in the Circuit Court for Milwaukee County, Wisconsin. The court withheld sentence and placed him on probation for a period of three years requiring him to serve six months in Wisconsin County jail. Nearly two years later, on July 13, 1980, Thompson was involved in a stabbing incident which resulted in the death of his brother. Thompson claimed that he had stabbed his brother to death in self-defense.
Thompson was arrested for his involvement in his brother's death but the charges were later dismissed. Respondent, the Wisconsin Department of Health and Social Services ("Department"), initiated probation revocation proceedings alleging that Thompson had violated the terms of his probation by causing his brother's death and by possessing a weapon, the kitchen knife, without prior consent of the probation agent. The revocation hearing was held and in 1980, Thompson probation was revoked. Thompson then petitioned for writ of certiorari in the Circuit Court for Milwaukee County. This petition was dismissed by the court.
Thompson appealed the dismissal of the petition to the Wisconsin Court of Appeals claiming that his due process rights were violated by the probation revocation proceeding. The court reversed the order revoking Thompson's probation, finding that the probation revocation decision was not supported by substantial evidence since it was based solely on unsubstantiated hearsay. The Wisconsin Supreme Court affirmed the decision of the Court of Appeals on grounds not considered by the appellate court. The Supreme Court held that the probation revocation order must be reversed because there was both inadequate notice of the grounds upon which the revocation was based and insufficient evidence to meet the preponderance standard used in probation revocation proceedings.
In the course of its opinion, the Wisconsin Supreme Court made the following statement:
If the department believes probation revocation is in order, it may seek a new petition for revocation and elicit additional evidence. The department remains free to offer any probation record that was prepared pursuant to a probation official's regularly conducted duties or police investigative material if demonstrated to be reliable. It may also wish to offer testimony from agent Hovel or from witnesses present at the stabbing incident.
Thompson immediately filed a motion for reconsideration seeking to have this statement stricken from the opinion. The motion was denied without explanation.
The case was then remanded to the Circuit Court where the order revoking probation was vacated. A new probation hold was placed on Thompson, however, preventing his release from custody. He then received notice that the Department would seek to revoke his probation a second time as suggested by the Wisconsin Supreme Court. The violations were the same as those alleged in the first revocation proceeding. In the final hearing notice, the Department declared its intent to offer both documentary and testimonial evidence that had not been presented at the original probation revocation hearing. On January 17, 1983, the Department held a preliminary revocation hearing at which probable cause was found to revoke Thompson's probation for a second time. The final revocation hearing was held on June 6, 1983. Thompson was then sentenced to six years in prison with credit given for the time served after the first revocation proceeding was held.
Thompson filed his petition for a writ of habeas corpus on January 21, 1983 in the United States District Court claiming that the Due Process Clause prohibits the Department from revoking his probation a second time based upon the same events and evidence argued at the initial hearing and declared to be insufficient by the Wisconsin Supreme Court.
On February 10, 1983, Thompson filed a petition for writ of habeas corpus in the Circuit Court for Milwaukee County. Thompson thereafter, on July 12, 1983, filed a petition for writ of certiorari in the Circuit Court for Milwaukee. The petition for writ of certiorari is currently pending in the Circuit Court.
The District Court, in a published opinion, denied Thompson's petition for writ of habeas corpus. This appeal seeks to reverse the trial court order denying Thompson's petition for writ of habeas corpus.
Probation revocation hearings are not a part of the criminal prosecution which results in imposition of the probationary period. Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 33 L. Ed. 2d 484 (1972). A probationer or parolee facing revocation is not entitled therefore to the full panoply of constitutional and statutory rights due a defendant facing a criminal prosecution. Id. at 489, 92 S. Ct. at 2604. See also Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 1759, 36 L. Ed. 2d 656 (1973) (extending due process rights recognized in Morrissey to probationers). In Morrissey v. Brewer, the Court held that the conditional liberty of a parolee is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. 408 U.S. at 480, 92 S. Ct. at 2600. In Morrissey, the Court outlined the minimum due process rights to which parolees are entitled: the ...