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SCHMANKE v. IRVINS

United States District Court, N.D. Illinois, Eastern Division


November 7, 2005.

MARK W. SCHMANKE #02055-027, Petitioner,
v.
SILAS IRVINS, Warden, Metropolitan Correctional Center, Respondent.

The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge

MEMORANDUM ORDER

On November 2 this Court received in chambers still another sheaf of documents from Mark Schmanke ("Schmanke"), comprising his Motion for Discovery, Motion for a Bond Hearing, Motion for Leave To File an Amendment to the Writ of Habeas Corpus and Petitioner's Amendment to the Application for a Writ of Habeas Corpus. That package, having been signed and mailed by Schmanke on October 28, obviously crossed in the mails this Court's transmission to him of its November 1 order ("Order") denying the writ that he had sought under 28 U.S.C. § 2241. Apart from Schmanke's effort to obtain a bond hearing looking to his current release, which is denied for the same reasons that this Court set out in the Order, Schmanke's other requests for possible relief will be addressed in the remainder of this order.

To begin with, Schmanke's Motion for Discovery is hopelessly overbroad and is denied out of hand. If, as and when the additional response that is requested here from the United States may occasion the need for an evidentiary hearing or may require supplemental materials to evaluate any legal question, it will be time enough to consider any possible need for discovery in that light.

  Most fundamentally, Schmanke's other filings stem from flawed premises that require some further exposition to carve away their impermissible elements. One of those false premises is that his rights are to be determined in accordance with the sentencing statutes and guidelines that stem from the Sentencing Reform Act of 1984. That misunderstanding on his part has been adequately dealt with in the Order and need not be discussed further here.

  As for the rest, what Schmanke clearly cannot do is to revisit his 2001 revocation proceedings, as to which he has previously been rebuffed twice in court decisions that rejected his two earlier habeas petitions seeking to challenge the decisions reached there. That calls for rejection of a great deal of what Schmanke has advanced in his new filings, which appear to intermingle the earlier revocation proceedings with the most recent one. Those earlier determinations have long since become final and not further reviewable, so that he cannot use any claimed defects in those proceedings to taint the most recent one.

  As for that most recent revocation, which has just been upheld in the attached October 12, 2005 ruling by the National Appeals Board of the United States Parole Commission, this Court directs the United States to file its response to Schmanke's motion on or before November 28, 2005. In that respect, Schmanke does not appear to recognize that Fed.R.Evid. 1101 (d) (3) expressly provides that the Evidence Rules are inapplicable to proceedings revoking probation, so that any hearsay objections based upon the Rules must fail. This does not of course preclude the consideration of possible Confrontation Clause questions posed by Morrissey v. Brewer, 408 U.S. 471 (1972) or, perhaps, Crawford v. Washington, 541 U.S. 36 (2004) — although in the latter respect our Court of Appeals' opinions rejecting the retroactive applicability of Crawford on collateral attack (Murillo v. Frank, 402 F.3d 786 (2005) and Hintz v. Bertrand, 403 F.3d 859 (7th Cir. 2005)) must be taken into account.

20051107

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