The opinion of the court was delivered by: Herndon, District Judge
I. Introduction and Background
On June 25, 2003, pro se Plaintiff/Inmate Leslie Love filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. 4.) Specifically, Petitioner attacks the revocation of his parole on the grounds that 1) he was denied the right to call witnesses; 2) there was an unreasonable delay in conducting the revocation hearing; 3) he was denied a second preliminary hearing when new charges were issued; 4) the Commission improperly imposed an enhanced sentence; and 5) that the United States Parole Commission ("Commission") made a finding that petitioner could have refuted if he had been allowed to call witnesses.
Petitioner is a federal prisoner serving an aggregate sentence of 36 years, 1 month, and 27 days. Since Petitioner began serving his sentence in 1984, he has been paroled four times and the Commission has revoked his parole four times. Petitioner was most recently paroled on February 23, 2001. On March 14, 2001, the U.S. Probation Office ("Probation") sent a request to the Commission for a warrant. Probation reported that local police had observed Petitioner operating an "escort service" and had arrested him after he evaded their first attempt to arrest him. The report included the finding of a shotgun in an apartment where Petitioner was allegedly staying and also that Petitioner had hit a police car as he attempted to make his escape; however, the report did not say that the police car was occupied by an officer at the time.
On March 15, 2001, the Commission issued a warrant charging Petitioner with A) Promoting Prostitution; B) Leaving the Scene of an Accident; and C) Police Evasion.On March 28, 2001, a probation officer conducted a preliminary interview of Petitioner based on the charges in the March 15, 2001 warrant. On April 17, 2001, the probation officer recommended to the Commission a finding of probable cause. On May 18, 2001, the Commission issued a supplemental warrant, which included additional charges based on a new police report. The charges - assaulting a police officer and possession of a firearm - and the evidence that supported the charges were disclosed to Petitioner. However, a preliminary hearing was never held on these additional charges.
On May 23, 2001, the Commission sent Petitioner a letter finding probable cause based on the charges of leaving the scene of an accident and police evasion. The letter also stated that Petitioner would face additional charges, based on a supplemental warrant application, which included assault on a police officer and possession of a firearm. The letter ordered a revocation hearing on these grounds only. The Commission informed the Petitioner that it had made no finding on the charge of promoting prostitution.
A revocation hearing was held on September 19, 2001. The hearing examiner found that Petitioner had committed the charged crimes. The examiner rated the offense as Category Six under the Commission's guidelines, since the crime involved an assault with a dangerous weapon on a protected person. The examiner recommended a re-parole decision above the guidelines because he believed that Petitioner is a more serious and poorer risk for parole than the guidelines indicated.
This matter comes before the Court on a Report and Recommendation (the "Report") filed by Magistrate Judge Clifford J. Proud on August 7, 2006 pursuant to 28 U.S.C. § 636(b)(1)(B). (Doc. 22.) The Report concerns the petition for writ of habeas corpus filed by Petitioner. (Doc. 4.) Judge Proud recommends that the writ be denied in all respects. (Doc. 22.) Petitioner filed an objection to the Report. (Doc. 23.) Therefore, this Court undertakes de novo review of the Report. 28 U.S.C. § 636(b)(1)(B); FED. R.CIV. P.72(b); Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court may "accept, reject or modify the recommended decision."FED. R.CIV.P.72(b); Willis v. Caterpillar Inc., 199 F.3d 902, 904 (7th Cir. 1999). In making this determination, the Court must look at all the evidence contained in the record and give fresh consideration to those issues to which specific objection has been made. Id.
Specifically when reviewing a decision by the Parole Commission, the Seventh Circuit has held that "'the inquiry is not whether the [Commission] is supported by the preponderance of the evidence, or even by substantial evidence; the inquiry is only whether there is a rational basis in the record for the [Commission's] conclusions embodied in its statement of reasons.'" Walrath v. Getty, 71 F.3d 679, 685 (7th Cir. 1995) quoting Hanahan v. Luther, 693 F.2d 629, 632 (7th Cir. 1982). Decisions to revoke a parolee's parole are committed to the discretion of the Parole Commission by law. 18 U.S.C. § 4218(d). The Court, therefore, will review the decisions of the Parole Commission only to determine if there is a rational basis for its findings.
In Morrisey v. Brewer, the United States Supreme Court considered what type of process is due when an individual's parole has been revoked. 408 U.S. 471 (1972). The Court began its analysis by noting that "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations." Id. at 481. The Court concluded that at a minimum, due process requires: 1) written notice of the claimed violations of parole; 2) disclosure to the parolee of evidence against him; 3) opportunity to be heard in person and to present witnesses and documentary evidence; 4) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); 5) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and 6) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Id. at 489.
A. Opportunity to Present Witnesses
At Petitioner's March 29, 2001 preliminary interview, Petitioner requested the presence of Lori Klocke, an adverse witness, at his revocation hearing. He also stated that Eddie Mae Love and Amy Bricker would be present as "voluntary witnesses." On June 7, 2001, Petitioner sent a letter to the United States Parole Commission requesting that subpoenas be issued to his previous United States Probation Officer, Susan Richard; Officer Braden; director of Dismas House, Ken McGill; and petitioner's employer, Robert Newsome Sr. In a letter dated August 6, 2001, the Commission denied Petitioner's request to subpoena witnesses. The Commission made the following findings: 1) Susan Richard was not an adverse witness and had not supervised Petitioner during his most recent parole; 2) Officer Braden's testimony would be duplicitous; 3) Robert Newsome Sr. was not mentioned in the current violation; and 4) Ken McGill would only have information relating to the Charge 1: Promoting Prostitution, which the Commission had not found probable cause on. In addition, the Commission found that the witnesses were not adverse and/or that the Petitioner had not provided information regarding what the witness would testify to. Petitioner argues that this denial amounts to a violation of Petitioner's constitutional right to due process.
The Supreme Court in Morrisey v. Brewerheld that due process requires that accused parole violators must be given the "opportunity to be heard in person and to present witnesses and documentary evidence" and "the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation)". 408 U.S. at 489. Morriseyand the Commission's regulations define "adverse witnesses" as a "person who has given ...