F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 15 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
CHERI SMITH,
Petitioner-Appellant,
v. No. 03-2270
(D.C. No. CIV-03-142 WPJ/RHS)
WILLIAM SNODGRASS, New (D. N.M.)
Mexico Women’s Correctional
Facility; MARK RADOSEVICH,
Director, New Mexico Adult Probation
& Parole; PATRICIA MADRID,
Attorney General, State of New
Mexico,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before KELLY , HARTZ , and TYMKOVICH , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner Cheri Smith appeals from the denial of habeas relief sought as to
both an initial state felony conviction and subsequent state proceedings to revoke
the probation she was granted with respect to the resultant sentence. The district
court held that the claims challenging the conviction were time-barred and that
petitioner had not established any right to relief with regard to the revocation
proceedings. The district court then granted a certificate of appealability limited
to petitioner’s due process challenge to the revocation proceedings. For reasons
stated below, we affirm the denial of the due process claim and deny petitioner’s
request to expand the certificate of appealability to include all other claims raised
in the petition.
Petitioner was convicted in New Mexico state court of felony fraud and
embezzlement and the misdemeanor of acting as an insurance consultant without a
licence. She received consecutive sentences of three years for each felony and six
months for the misdemeanor. All but eighteen months was suspended, however,
and she was placed on five years’ probation with several conditions, including
payment of $7,901.40 in restitution, execution of a promissory note to guarantee
the payment, and provision of documentation from any future employer indicating
notification of her embezzlement conviction.
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In a decision issued November 17, 2000, the New Mexico Court of Appeals
vacated petitioner’s misdemeanor conviction, but affirmed the judgment in all
other respects. Petitioner did not seek review in the New Mexico Supreme Court
by the December 7, 2000 deadline, see N.M. R. App. P. 12-502(B), and the court
of appeals’ mandate subsequently issued on February 15, 2001.
By then petitioner had gained her release under the probation conditions
noted above. Pursuant to an interstate compact, she was allowed to transfer her
probation to Arizona, where she found employment. Since that time petitioner’s
compliance with her probation conditions has been a persistent issue, prompting
(a) a revised probation order setting out more specific terms regarding restitution
payment; (b) several motions by the State to revoke petitioner’s probation and a
bench warrant based on her failure to appear at a hearing; (c) several motions by
petitioner to dismiss the proceedings and quash the bench warrant; and (d) efforts
by petitioner to obtain appellate and mandamus relief in the state courts.
While the revocation proceedings continued without resolution, petitioner
commenced this action in the federal district court for New Mexico on
January 30, 2003, raising a host of complaints about the revocation proceedings
and her underlying criminal prosecution. Adopting the magistrate judge’s
recommended analysis, the district court held that petitioner’s claims regarding
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her convictions were time-barred under 28 U.S.C. § 2244(d), and then rejected her
objections to the revocation proceedings for various reasons.
As for petitioner’s motion to expand the certificate of appealability beyond
the due process claim previously certified for appeal, we have considered the
pertinent materials, concluded “that reasonable jurists would not find the district
court’s disposition of the remaining claims wrong or even debatable,” and,
therefore, deny the motion. Carter v. Ward , 347 F.3d 860, 865 (10 th Cir. 2003)
(applying standard from Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Thus, our
appellate review is limited to the disposition of petitioner’s due process challenge
to her probation revocation proceedings.
Notwithstanding the unitary reference by the district court in the certificate
of appealability, there is, in fact, no single “due process” claim designated in the
habeas petition. Rather, a number of objections that could fall under that general
rubric are scattered throughout the petition’s claims regarding the revocation
proceedings. Of these, petitioner argues on appeal that the State has deprived her
of certain procedural rights constitutionally guaranteed at revocation proceedings;
that the State has also failed to comply with specific procedural provisions of the
interstate compact that authorized the transfer of her probation to Arizona; and
that she should have been afforded counsel as a matter of due process. None of
these contentions has merit.
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Petitioner claims that she was not afforded the prompt preliminary hearing
“at or reasonably near the place of the alleged [probation] violation,” to which she
was entitled under Morrissey v. Brewer , 408 U.S. 471, 485 (1972), and Gagnon v.
Scarpelli , 411 U.S. 778, 782 (1973) (holding probation revocation procedure must
comply with “conditions specified in Morrissey v. Brewer ” for parole revocation).
But this preliminary-hearing requirement is inapposite here, where the State
pursued revocation while permitting petitioner to remain at liberty. This point
was clarified some time ago:
Gagnon v. Scarpelli , . . . and the decision on which it is based,
Morrissey v. Brewer , . . . , prescribe a two-stage procedure for parole
and probation revocation: a preliminary hearing on whether there is
probable cause to believe the terms of release were violated, and a
subsequent final hearing on the merits. In those cases, however, the
respondents were held in custody until the revocation hearing. The
reason for requiring a preliminary hearing was that the conditional
liberty of a probationer or parolee, like the more complete liberty of
others, cannot constitutionally be infringed without probable cause.
This reason for requiring a preliminary hearing is not present when,
as here, the probationer is not held in custody to await the revocation
hearing.
United States v. Sciuto , 531 F.2d 842, 846 (7 th Cir. 1976) (following United
States v. Strada , 503 F.2d 1081, 1084 (8 th Cir. 1974)); see also McDonald v.
N.M. Parole Bd. , 955 F.2d 631, 633-34 (10 th Cir. 1991) (holding Morrissey’s
“hearing requirements and time limitations must be adhered to only after the
parolee is taken into custody as a parole violator[;] . . . [u]ntil he is, he has not
been deprived of a liberty interest”).
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Petitioner also complains of the time that has passed since the State first
sought to revoke her probation in September 2001. Morrissey holds that a final
revocation hearing, i.e., one that “lead[s] to a final evaluation of any contested
relevant facts and consideration of whether the facts as determined warrant
revocation,” 408 U.S. at 488, “must be tendered within a reasonable time,” id.
(noting “lapse of two months . . . would not appear to be unreasonable”). Again,
however, the deprivation of liberty prompting the Morrissey Court to impose this
time constraint (and the event triggering calculation of the length of delay) was
the fact that “the parolee is taken into custody.” Id.; see Moody v. Daggett, 429
U.S. 78, 87 (1976) (“[I]n holding [in Morrissey ] that the revocation hearing must
be tendered within a reasonable time after the parolee is taken into custody, . . .
we established execution of the [revocation] warrant and custody under that
warrant as the operative event triggering any loss of liberty attendant upon the
parole revocation.” (quotation omitted)). Hence, this aspect of Morrissey is
distinguishable here for the same reason that its preliminary-hearing requirement
is inapposite.
That is not to say due process places no temporal constraints whatsoever on
revocation proceedings conducted without taking the probationer into custody.
Thus, for example, extended unjustified delay in executing a revocation warrant,
which by definition precedes Morrissey-Gagnon custody concerns, may implicate
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due process if the delay is demonstrably prejudicial to the violator’s ability to
defend. See United States v. Tippens , 39 F.3d 88, 90 (5 th Cir. 1994); United
States v. Taylor , 931 F.2d 842, 848 (11 th Cir. 1991). We need not delve deeply
into this question, however, as petitioner has not demonstrated any prejudice of
constitutional significance. This is not a case of process withheld or postponed
for some extended period; on the contrary, there has been a surfeit of process,
including many motions and pleadings from petitioner, that has delayed resolution
of the matter since the State first moved for revocation in 2001. Moreover, the
State’s efforts to revoke probation do not stem from a single incident receding
into an unrecoverable past; the State has repeatedly moved for revocation based
on, among other things, petitioner’s continuing failure to make restitution.
Petitioner’s claim that the State has violated procedures specified in the
interstate compact authorizing her transfer to Arizona are meritless. The relevant
sections of the compact simply acknowledge the due process requirement of a
preliminary revocation hearing recognized in Morrissey and Gagnon and, given
the interstate-transfer context, provide for it in the receiving state. Interstate
Comm’n for Adult Offender Supervision Rules , 1 § 5.108 (2004) (formerly Parole
and Prob. Compact Adm’r’s Ass’n Rules , §§ 5-102, 5-104). For reasons already
explained, this requirement is inapplicable here.
1
These Rules may be found at www.adultcompact.org. (March 12, 2004).
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Finally, petitioner claims that she is entitled to appointment of counsel in
the revocation proceedings pursuant to Gagnon , which recognized that there are
“certain cases in which fundamental fairness–the touchstone of due process–will
require that the State provide at its expense counsel for indigent probationers or
parolees.” 411 U.S. at 790. Gagnon noted, however, that the determination
whether counsel is necessary is addressed in the first instance to the “sound
discretion” of the State, and cautioned that “the presence and participation of
counsel will probably be both undesirable and constitutionally unnecessary in
most revocation hearings.” Id. An important consideration is “whether the
probationer appears to be capable of speaking effectively for himself.” Id. 791.
Petitioner has not, consistent with these principles, demonstrated that fundamental
fairness requires the State to provide her with appointed counsel to assist with her
thus-far effective opposition to its effort to revoke her probation.
Petitioner’s motion to expand the certificate of appealability to include all
issues raised in her habeas petition is DENIED. The judgment of the district
court denying the petition is AFFIRMED. Petitioner’s February 19, 2004, motion
for an order directing the State to expand the record, April 13, 2004, renewed
motion for an order to show cause why her habeas petition should not be granted,
and April 27, 2004, renewed motion to hold the New Mexico Attorney General
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and its counsel of record in contempt are DENIED. Petitioner’s July 6, 2004,
motion to file a supplemental appendix is GRANTED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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