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Alston v. Smith

United States Court of Appeals, Seventh Circuit

October 18, 2016

Eric T. Alston, Petitioner-Appellant,
v.
Judy P. Smith, Respondent-Appellee.

          Argued September 22, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 3:15-cv-00325-bbc - Barbara B. Crabb, Judge.

          Before Bauer, Posner, and Manion, Circuit Judges.

          Bauer, Circuit Judge.

         Petitioner-appellant, Eric Alston, challenged the revocation of his probation by an administrative law judge (ALJ), claiming that certain information the ALJ learned prior to his revocation hearing created a risk of bias in violation of his due process rights. Alston's appeal was denied by the Administrator of the Wisconsin Division of Hearings and Appeals, the Dane County Circuit Court, and finally the Wisconsin Court of Appeals. After the Wisconsin Supreme

          Court declined to review the case, Alston filed a petition for a writ of habeas corpus in federal district court. The district court denied the petition, holding that the Wisconsin Court of Appeals was not unreasonable in concluding that there was no impermissibly high risk of bias. We affirm.

         I. BACKGROUND

         On June 28, 2010, Alston was placed on probation by the Dane County Circuit Court after his conviction on five criminal charges. Shortly thereafter, Dane County law enforcement agencies established a "Special Investigation Unit" (SIU) to monitor and offer resources to ten probationers whom they identified as "serious, assaultive offenders." In November 2011, Alston was identified for participation in the SIU program through which he was offered community resources aimed at deterring him from reoffending. Alston's participation, however, also came with the admonition that any probation violation would result in the Department of Corrections vigorously seeking full revocation of probation.

         Alston was arrested on December 6, 2011, for violating his probation. On April 24, 2012, a revocation hearing was held before Beth Whitaker, an ALJ for the Wisconsin Division of Hearings and Appeals. Alston's participation in the SIU was discussed at the hearing, after which ALJ Whitaker informed the parties that she had previously attended a presentation about the program given by law enforcement members of the SIU. In explaining the presentation, ALJ Whitaker stated:

It was two law enforcement officers, if I remember correctly, and they gave us an informational presentation. And it may have been at the request of our agency, and it may have been initiated by someone else. I don't know, I just went along with the other [hearing examiners] in my office and we were given information about this program right around the time that it came out in the newspaper. And the summary of it as I remember it is we were told about the vast resources that were being provided to these folks that were at high risk, and that the program was intended as a last chance, and that violations should be treated as sort of a last straw. And in the case of supervision that it would be expected that they wouldn't be given another chance. In other words, [they] would be revoked, and in the case of a criminal case they would be prosecuted. What I didn't hear is that we're expected, that they expected us to revoke people when the violations weren't proven, so I think to that extent, I mean I don't think at any point that they suggested that we revoke people that hadn't done anything. So there's part of my decision making that's not relevant to what their program is about, part of it that I guess you could say is [relevant].

         Alston then requested a suspension of the proceedings to allow for the substitution of a "neutral party" who had not attended this presentation. His request was denied.

         ALJ Whitaker issued a written order revoking Alston's probation, and Alston appealed to the Administrator of the Division on Hearings and Appeals. The Administrator affirmed the revocation and found that ALJ Whi taker's attendance at the SIU training was not problematic. After the Circuit Court of Dane County also affirmed the order, Alston appealed to the Wisconsin Court of Appeals.

         The Wisconsin Court of Appeals rejected Alston's argument that ALJ Whitaker's attendance at the SIU training created a risk of bias that violated his due process rights. First, the court found that ALJ Whitaker was not biased in fact, citing the explanation of the SIU meeting she provided at Alston's hearing. The court then concluded that her attendance at the meeting did not create an impermissibly high risk of bias. It explained that members of the legal profession, including the judiciary regularly attend trainings, seminars, and meetings regarding developments in legal policy and law enforcement tactics. The law enforcement officials at the SIU training did not discuss any specifics of Alston's case and provided only general information about the workings and goals of the program. The court held, therefore, that ALJ Whitaker's attendance did not create an impermissibly high risk of bias in violation of Alston's due process rights.

         After the Wisconsin Supreme Court denied Alston's petition for review, he sought federal habeas relief. The district court found that the Wisconsin Court of Appeals' decision did not involve an unreasonable application of federal law nor an unreasonable determination of the facts. It held that because fair minded jurists could agree with the conclusion that ALJ Whitaker's attendance at the SIU ...


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