United States District Court, N.D. Illinois, Eastern Division
December 5, 2005.
MARK W. SCHMANKE #02055-027, Petitioner,
SILAS IRVINS, Warden, Metropolitan Correctional Center, Respondent.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
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
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.
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