Eric T. Alston, Petitioner-Appellant,
Judy P. Smith, Respondent-Appellee.
September 22, 2016
from the United States District Court for the Western
District of Wisconsin. No. 3:15-cv-00325-bbc - Barbara B.
Bauer, Posner, and Manion, Circuit Judges.
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
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.
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.
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
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].
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.
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.
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.
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 ...