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SCHMANKE v. IRVINS

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


December 5, 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

Mark Schmanke ("Schmanke"), who has repeatedly demonstrated his inability to stay clear of the criminal justice system over a period of many years, has brought a petition for habeas relief under 28 U.S.C. § 2241*fn1 to challenge the most recent revocation of parole.*fn2 This Court's most recent memorandum order issued on November 7 (a photocopy of which is attached) dealt with — and dispatched — several of Schmanke's latest contentions, but it also directed the government to file a response. That response is now in hand, and it clearly reconfirms the propriety of dismissal of Schmanke's current effort to seek relief. As this Court had reflected in its November 7 order, the only potential area of concern as to the validity of Schmanke's latest parole revocation might have stemmed from the fundamental change in Confrontation Clause jurisprudence announced in Crawford v. Washington, 541 U.S. 36 (2004). But as the government's response has pointed out, no fewer than four Courts of Appeals have issued post-Crawford opinions that have flat-out rejected its applicability to revocation proceedings: First, United States v. Martin, 382 F.3d 840, 844 n. 4 (8th Cir. 2004) (supervised release revocation), then United States v. Aspinall, 389 F.2d 332, 342-43 (2d Cir. 2004) (probation revocation), next United States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005) (supervised release revocation) and finally United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005) (same). Although none of those decisions involved parole revocation, all of them employed the same reasoning as the seminal decision in the latter respect, Morrissey v. Brewer, 408 U.S. 471, 480 (1972): that any such revocation proceeding is not part of a criminal prosecution, so that the Sixth Amendment and its Confrontation Clause are not implicated.

To this Court's knowledge, no Seventh Circuit case has had occasion to consider whether Crawford has worked a change in the law of revocation proceedings. But this Court sees no reason to believe that our Court of Appeals would part company with the unanimous position of its counterparts in other Circuits. This Court will follow their lead in rejecting Schmanke's challenge on confrontation grounds.

  Moreover, any such contention could not help Schmanke in any event. For one thing, his September 2003 conviction on a DUI charge conclusively demonstrates that violation of the conditions of his parole. And as to the February 2005 asserted hit-and-run incident about which Schmanke complains he lacked the ability to cross examine, the live testimony at his revocation hearing (see the attached excerpt from the government's response) — as to which cross examination was available — provides more than an ample ground for rejection of his present complaint.*fn3

  In summary, Schmanke's renewed effort to obtain habeas relief is without merit. This Court grants Schmanke leave to file his already tendered amendment to his petition (see Dkt. 39), but it denies Schmanke's amended motion seeking a writ of habeas corpus. [EDITORS' NOTE: TEXT IS ELECTRONICALLY NON-TRANSFERRABLE.] [EDITORS' NOTE: LOGO IS ELECTRONICALLY NON-TRANSFERRABLE.] Moreover, with respect to the February 2005 incident, the hit and run accident was only the beginning of the course of conduct which led to Schmanke's arrest. The report of the accident and Schmanke's flight led to a police response to the vicinity of the accident, a police chase of Schmanke's truck, and Schmanke's subsequent arrest not only for the hit and run but also for operating a motor vehicle while intoxicated, reckless driving, and resisting arrest. Police Officer Anthony Buonadonna of the Schereville, Indiana police department, responded to the report of the accident, chased Schmanke in his patrol car, and subsequently arrested Schmanke and transported him to a hospital.

  Officer Buonadonna was present at Schmanke's revocation hearing and gave testimony concerning the his chase of Schmanke, Schmanke's arrest, and his observation of Schmanke from the time of the arrest to the Schmanke's evaluation at the hospital. Buonadonna testified that he personally observed Schmanke run multiple stop signs, cut off other vehicles, drive over a sidewalk, and exceed the posted speed limit by 30 miles per hour as he chased Schmanke with emergency lights flashing and siren. He also testified that Schmanke stopped his truck in the middle of the street, ran from the truck and tried to scale a 6-foot wooden fence. Officers pulled Schmanke off the fence and handcuffed him. Buonadonna further testified that in waiting with Schmanke at the hospital he smelled alcohol on Schmanke's breath, and noticed that Schmanke was unsteady on his feet and that his eyes were watery and bloodshot. When asked, Schmanke refused a field sobriety test and a blood alcohol test.

  Buonadonna further testified concerning admissions that Schmanke made to him concerning his involvement in the hit and run accident and Schmanke's ingestion of alcohol. Following his direct examination, Buonadonna was subjected to cross-examination and, thus, Schmanke's claim of having no opportunity to confront adverse witnesses fails.

20051205

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