IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40809
Summary Calendar
WILLIAM HARRIS PALMER,
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
______________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
(6:95-CV-859)
______________________________________________________
October 8, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
William Harris Palmer, a Texas prisoner (#410634), appeals
the district court’s order denying his petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that
follow, we affirm the judgment of the district court.
I. BACKGROUND
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
A jury convicted Palmer of sexual assault and sentenced him
to twenty years of imprisonment and a $10,000 fine. The Texas
Eleventh District Court of Appeals affirmed his conviction. The
Texas Court of Criminal Appeals denied Palmer’s petition for
discretionary review.
Palmer was released on parole on March 2, 1992. Just over
one year later, while still on parole, Palmer was charged with
aggravated assault for allegedly injuring Terry M. Strout with a
knife. Although the case against Palmer was later dismissed
because Strout could not be located to testify, Palmer was
arrested and charged with violating Rule 2 and Rule 5 of his
parole. Rule 2 requires the parolee to “[o]bey all municipal,
county, state and federal laws,” and Rule 5 prohibits the parolee
from, inter alia, “us[ing], attempt[ing] or threaten[ing] to use
any tool, implement or object to cause or threaten to cause any
bodily injury.”
Palmer signed a document acknowledging his rights in the
parole revocation process and requesting a preliminary hearing.
A preliminary hearing was held on September 1, 1993, to determine
whether adequate grounds existed to find that Palmer violated the
conditions of his release. The report of the preliminary hearing
stated that Palmer was read his rights and voiced an
understanding of those rights. The report also noted that the
felony charge of aggravated assault had been dismissed because
the district attorney’s office could not locate Strout, who also
2
was in violation of his parole. Nevertheless, based on the
complaint filed by Strout and on Palmer’s testimony that he
slapped Strout during a verbal altercation, the hearing officer
determined that there was probable cause to believe that Palmer
had violated Rules 2 and 5 of his parole. According to the
complaint, Palmer intentionally and knowingly injured Strout by
using a knife. The officer acknowledged that Palmer denied
pulling a knife.
Palmer requested a revocation hearing, which was held on
October 12, 1993. Again, Palmer was read his rights and voiced
his understanding of those rights. Palmer waived his right to be
represented at the hearing by an attorney. Two police officers
testified that Strout had identified Palmer as his assailant and
that a knife was recovered from Palmer’s pocket. Palmer
testified that Strout had cut himself on a fence and threatened
to cut Palmer with a knife, hence Palmer struck him. Based on
the testimony of the police officers and of Palmer, the hearing
officer concluded by a preponderance of the evidence that Palmer
had violated Rules 2 and 5. Palmer’s parole was revoked on
October 6, 1993.
Palmer subsequently filed two state applications for writ of
habeas corpus. Both were denied without written order. Palmer
then filed the instant federal petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, arguing that (1) the state could
not revoke his good-time credits without providing monetary
3
compensation, (2) the state’s custody of him was unlawful because
his flat-time and good-time credits amounted to more than his
underlying sentence, and (3) the state violated his due process
and equal protection rights and his right against cruel and
unusual punishment by returning him to prison without a new
conviction after revoking his parole.
The respondent filed a motion to dismiss Palmer’s federal
habeas petition on the ground that he had not exhausted his state
court remedies. While acknowledging that Palmer had exhausted
his state remedies with respect to the second and third claims,
respondent argued that Palmer had not exhausted his remedies with
respect to his claim that the state could not deprive him of
good-time credits without providing monetary compensation. The
magistrate judge determined that it was appropriate to address
the merits of the case notwithstanding the lack of complete
exhaustion, and issued a report and recommendation that Palmer’s
habeas petition be denied.
Palmer filed objections to the magistrate judge’s report and
recommendation. In his objections, Palmer challenged for the
first time the use of hearsay testimony at his revocation hearing
and the procedure used throughout the revocation process. The
district court, after considering the report and recommendation
of the magistrate judge and conducting a de novo review of
Palmer’s objections thereto, adopted the findings and conclusions
4
of the magistrate judge and dismissed Palmer’s petition with
prejudice.
Palmer timely filed a notice of appeal as well as a motion
for leave to proceed in forma pauperis (“IFP”) on appeal. The
district court granted Palmer a certificate of probable cause
(“CPC”) to appeal and stated that Palmer was entitled to proceed
IFP. This court later granted Palmer a certificate of
appealability (“COA”) as to all issues.
II. DISCUSSION
Because Palmer filed the instant federal habeas petition
prior to the enactment of the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the standards of review set forth
in AEDPA do not apply. Lindh v. Murphy, 117 S. Ct. 2059, 2068
(1997); Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997).
Accordingly, we apply pre-AEDPA habeas law to Palmer’s claims.
See Green, 116 F.3d at 1120. We may consider Palmer’s
application for writ of habeas corpus “only on the ground that he
is in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2254(a) (pre-
AEDPA).1
1
Under pre-AEDPA habeas law, the factual determinations of
a state court in a habeas proceeding “evidenced by a written
finding, written opinion, or other reliable and adequate written
indicia, shall be presumed to be correct,” unless one of eight
enumerated exceptions applies. 28 U.S.C. § 2254(d) (pre-AEDPA).
In this case the state courts denied Palmer’s petitions without
5
Generally, issues raised for the first time in objections to
a magistrate judge’s report are not properly before the district
court and therefore are not cognizable on appeal. Cupit v.
Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994), cert. denied, 513
U.S. 1163 (1995). However, it is well established that failure
to exhaust state remedies is not an absolute bar to appellate
review of a habeas petition. Granberry v. Greer, 481 U.S. 129,
131 (1987). In some instances, the interests of judicial economy
support the exercise of appellate jurisdiction notwithstanding
the lack of complete exhaustion. Id. at 135. In addition, this
court has held that a district court may construe an issue raised
for the first time in an objection to a magistrate judge’s report
and recommendation as a motion to amend a complaint. United
States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (reviewing the
district court’s ruling on a motion for postconviction relief
pursuant to 28 U.S.C. § 2255). In this case, the district court
apparently considered the merits of Palmer’s nonexhausted claims
and concluded that they should be dismissed. We likewise
conclude that Palmer’s claims are without merit and that ordering
Palmer to exhaust his state remedies would needlessly prolong
this litigation. See Granberry, 481 U.S. at 133 (“[I]f the court
of appeals is convinced that the petition has no merit, a belated
written order, so there are no determinations to which we apply
the presumption of correctness.
6
application of the exhaustion rule might simply require useless
litigation in the state courts.”).
Palmer asserts on appeal that he was denied due process in
connection with his parole revocation.2 Specifically, Palmer
complains that he did not receive notice of the charges upon
which his revocation was based, that he did not receive a proper
preliminary hearing, that the revocation hearing was conducted by
a “designee” rather than a panel of three members of the parole
board without his consent, that he was not provided with a
written summary of the evidence and arguments supporting
revocation, and that his revocation was based solely upon the
hearsay testimony of the two police officers.
In the context of parole revocation, the Due Process Clause
requires that a preliminary hearing be held “to determine whether
there is probable cause or reasonable ground to believe that the
arrested parolee has committed acts that would constitute a
violation of parole conditions.” Morrissey v. Brewer, 408 U.S.
471, 485 (1972). With respect to the preliminary hearing,
the parolee should be given notice that the hearing
will take place and that its purpose is to determine
whether there is probable cause to believe he has
2
Palmer also argues on appeal that (1) his incarceration
without a criminal conviction is a violation of the Thirteenth
Amendment’s prohibition against involuntary servitude, (2) the
state’s failure to restore his good-time credits denied him equal
protection of the laws, and (3) that the state’s action in
revoking his parole invaded the judicial sphere in violation of
the doctrine of separation of powers. These claims are without
merit.
7
committed a parole violation. The notice should state
what parole violations have been alleged. At the
hearing the parolee may appear and speak in his own
behalf; he may bring letters, documents, or individuals
who can give relevant information to the hearing
officer. On request of the parolee, a person who has
given adverse information on which parole revocation is
to be based is to be made available for questioning in
his presence.
Id. at 487. The hearing officer is thereafter required to make a
summary of the evidence presented at the hearing and determine
whether there is probable cause to hold the parolee for a final
decision on revocation. Id.
With respect to the revocation hearing itself, the minimum
procedural due process requirements include:
(a) written notice of the claimed violations of parole;
(b) disclosure to the parole of evidence against him;
(c) opportunity to be heard in person and to present
witnesses and documentary evidence; (d) the right to
confront and cross-examine adverse witnesses (unless
the hearing officer specifically finds good cause for
not allowing confrontation); (e) a “neutral and
detached” hearing body such as a traditional parole
board, members of which need not be judicial officers
or lawyers; and (f) a written statement by the
factfinders as to the evidence relied on and reasons
for revoking parole.
Id. at 489. The Court emphasized that a revocation hearing is
not to be equated with a criminal prosecution, stating that “the
process should be flexible enough to consider evidence including
letters, affidavits, and other material that would not be
admissible in an adversary criminal trial.” Id.
Our review of the record leads us to conclude that Palmer
was accorded due process in connection with his parole
8
revocation. First, the record indicates that Palmer received
written notice of the alleged parole violations. Second, the
record contains documentation that a preliminary hearing was held
and that such hearing comported with due process. Third, Palmer
himself acknowledges that under Texas law a revocation hearing
may be conducted either by a panel of three members of the state
parole board or by a single board employee known as a “designee.”
Palmer cites no authority, and we are aware of none, that a
parolee must be afforded an opportunity to choose whether his
revocation hearing be conducted by a “designee” or a three-member
panel. Further, we note that Palmer did not challenge the
neutrality of the hearing officer at either the preliminary or
the revocation hearing. Fourth, the record contains a written
report of the revocation hearing that includes a summary of the
evidence upon which the decision to revoke Palmer’s parole was
based.
Finally, as to Palmer’s contention that his parole was
revoked solely on the basis of hearsay,3 we note that the report
of the revocation hearing indicates that significant nonhearsay
evidence was also introduced at the hearing. Palmer himself
testified that he struck Strout, and the officers testified that
3
To the extent that Palmer complains in this appeal that
he was unlawfully imprisoned without a new criminal conviction,
we note that this argument is without merit. Conviction of a
criminal charge is not a constitutional prerequisite to the
revocation of parole. See Amaya v. Beto, 424 F.2d 363, 364 (5th
Cir. 1970).
9
a knife was recovered from Palmer’s pocket. In addition, Palmer
made no objection at the hearing to the alleged hearsay
testimony. This court has recognized that the use of hearsay in a
parole revocation proceeding is problematic in the sense that it
“prevents the parolee from confronting and cross-examining the
declarant, and unreliable hearsay undermines the accuracy of the
fact-finding process.” Farrish v. Mississippi St. Parole Bd.,
836 F.2d 969, 978 (5th Cir. 1988). Under the circumstances of
this case, however, the alleged hearsay did not constitutionally
impair the hearing.
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
10