Williams v. Johnson

Revised April 20, 1999

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT
________________________

No. 97-11116
________________________

EARLANDO WILLIAMS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, Texas Department
of Criminal Justice, Institutional Division,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court
for the Northern District of Texas
______________________________________________
March 29, 1999
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Earlando Williams appeals the district court’s denial of his

petition for a writ of habeas corpus. Williams claims that the

State’s failure to produce his parole officer at his revocation

hearing violated his due process right to elicit favorable

testimony regarding circumstances that would have mitigated his

violation of a parole condition. Pretermitting a determination of

a due process violation, we find that any error was harmless and

therefore affirm.

I.
 In 1966 a jury found Williams guilty of rape and sentenced him

to death. That sentence was subsequently commuted to life

imprisonment.

The Texas Department of Criminal Justice Board of Pardons and

Paroles Division granted Williams a parole release in 1991. While

on parole, Williams requested permission to move to California.1

Claiming that he feared for his life after he was assaulted and had

his home burglarized, Williams moved to California before his

parole officer acted upon his request to leave Texas.

Upon arriving in California, Williams contacted his parole

officer and provided her with his address and telephone number. On

two other occasions, Williams had telephone conversations with the

officer. Williams then moved from his initial residence in

California but failed to contact his parole officer or provide her

with his updated address and telephone number. Williams was

subsequently arrested for absconding.

At his parole revocation hearing, Williams did not contest

that he had violated a condition of his parole. He admitted that

he had left the State of Texas without written permission but

argued that his fear for his life mitigated the violation.

Although Williams requested in a pre-hearing letter that his

parole officer attend the revocation hearing to be examined and

1
A condition of Williams’s parole release was that he obtain
written permission from his parole officer prior to leaving the
State of Texas.

2
cross-examined, the parole officer was not present to testify.

Instead, she submitted an affidavit declaring that she had not

given Williams written permission to leave the State of Texas or to

go to California. The affidavit was silent with respect to any

factors that might have mitigated Williams’s unauthorized move.

Williams objected to the introduction of the affidavit on the

ground that it denied him the right to confront and cross-examine

the parole officer. The revocation hearing officer overruled the

objection and accepted the affidavit, finding good cause to deny

the confrontation and cross-examination based on an agency policy

that does not require a supervising officer to travel outside his

or her district parole office area to attend a parole revocation

hearing.

After the hearing, the Texas Board of Pardons and Paroles

(“Parole Board”), following the hearing officer’s recommendation,

revoked Williams’s parole. The administrative release hearing

report included the hearing officer’s findings, which delineated

Williams’s violation and noted Williams’s testimony that he had

traveled to California without written permission because he could

not stay in Texas for safety reasons. The findings further

indicated that Williams’s parole officer had told him that he

needed to pay supervision fees amounting to $120.00 before he could

receive travel permission and that Williams eventually had

forwarded payment of these fees to his parole officer. Finally,

the hearing officer noted in her report:

3
 [Williams’s] parole officer indicated that she was not
certain RELEASEE could be transferred to California,
however, [sic] RELEASEE gave her his address and phone
number in California and spoke to her approximately three
times by phone from California. RELEASEE was never given
a written travel permit or permission to go to
California.

Based on these findings, the hearing officer concluded that

Williams had violated a rule governing his administrative release

status.

Williams challenged the parole revocation by filing in state

court an application for a writ of habeas corpus. The Texas Court

of Criminal Appeals denied the application without written order,

based on the findings and conclusions of the state trial court,

which had rejected Williams’s claim.

Williams filed the instant petition in federal court on or

about April 15, 1997. The magistrate judge to whom the petition

was initially referred noted that the Parole Board’s decision was

based at least in part on Williams’s own admission that he had

moved to California without authorization. According to the

magistrate, there was no basis to conclude that the Board’s

decision would have been any different if Williams’s parole officer

had been present at the revocation hearing. In addition, the

magistrate noted that the state court had reviewed the record and

found that Williams had failed to establish a due process

violation. Quoting from our decision in Moore v. Johnson, 101 F.3d

1069, 1076 (5th Cir. 1996), the magistrate judge stated that he was

4
unable to conclude that “the state court decision [is] so clearly

incorrect that it would not be debatable among reasonable jurists.”

The magistrate therefore recommended the denial of Williams’s

habeas petition.

Williams filed written objections to the magistrate’s findings

and recommendation. The district court adopted the findings and

conclusions of the magistrate judge and entered judgment denying

the application for a writ of habeas corpus. Williams filed a

timely notice of appeal and this court granted a certificate of

appealability with respect to the question whether a parolee’s

right to present mitigation evidence encompasses the right of

confrontation when the parolee has admitted the violation for which

parole is revoked and, if so, whether Williams was denied that

right.

Because Williams filed his habeas petition after the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996,

Pub. L. No. 104-132, 110 Stat. 1214 (1996), that Act’s provisions

govern the disposition of this appeal. See Lindh v. Murphy, 521

U.S. 320, 117 S. Ct. 2059 (1997). Accordingly, we may not grant

relief with respect to any claim that was adjudicated on the merits

in a state court proceeding unless that adjudication “resulted in

a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by

5
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).2

II.

The seminal case regarding the due process rights of a parolee

facing revocation is Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct.

2593 (1972). In Morrissey, the Supreme Court held that a parolee

is entitled to an opportunity for a hearing prior to a final

revocation decision. That hearing must provide a basis for the

evaluation of contested material facts and a determination whether

the factual findings suggest the propriety of revocation. At the

hearing, a “parolee must have an opportunity to be heard and to

show, if he can, that he did not violate the conditions, or, if he

did, that circumstances in mitigation suggest that the violation

does not warrant revocation.” Id. at 488, 92 S. Ct. at 2603. The

requirement that a parolee be able to address both the violation

and mitigative factors accords with the Court’s recognition that a

revocation decision involves two questions---first, whether the

parolee contravened a condition of his parole, and second, whether

the parolee should be recommitted to prison.

The first step is relatively simple; the second is more

2
In addressing Williams’s claim, we are bound by § 2254(d)(1)
because that section sets forth the standard of review for pure
questions of law and for mixed questions of law and fact. See,
e.g., Trevino v. Johnson, -- F.3d --, 1999 WL 79738, at *8 (5th
Cir. Feb. 19, 1999); Corwin v. Johnson, 150 F.3d 467, 471 (5th
Cir. 1998); Drinkard v. Johnson, 97 F.3d 751, 767-68 (5th Cir.
1996). Williams’s claim does not hinge on a question of fact, in
which case our review would be governed by 28 U.S.C. § 2254(d)(2).
See Drinkard, 97 F.3d at 767.

6
 complex. The second question involves the application of
expertise by the parole authority in making a prediction
as to the ability of the individual to live in society
without committing antisocial acts. This part of the
decision . . . depends on facts, and therefore it is
important for the board to know not only that some
violation was committed but also to know accurately how
many and how serious the violations were. Yet this
second step, deciding what to do about the violation once
it is identified, is not purely factual but is also
predictive and discretionary.

Id. at 479-80, 92 S. Ct. at 2599-600. Unless there is a

determination that the parolee in fact violated a parole condition,

the discretionary aspect of the revocation inquiry need not be

reached. See id. at 483-84, 92 S. Ct. at 2601.

Although the Court noted that a parolee is not due the full

panoply of rights that apply in a criminal prosecution, it

identified the minimum requirements of due process in this context.

A revocation procedure must provide (1) written notice of the

violations charged, (2) disclosure to the parolee of the evidence

against him, (3) the 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 finds good cause for disallowing such confrontation, (5) a

neutral and detached hearing body, and (6) a written statement by

the factfinders identifying the evidence and reasons supporting the

revocation decision. See id. at 489, 92 S. Ct. at 2604.

At issue here is whether Williams, having admitted his

violation of a parole condition, was nonetheless entitled to have

7
his parole officer present at the hearing for direct or cross-

examination.3 A parolee who requests a revocation hearing and

contests the charged violation has a qualified right to confront

and cross-examine adverse witnesses. See, e.g., id.; McBride v.

Johnson, 118 F.3d 432 (5th Cir. 1997) (finding a due process

violation where hearsay evidence regarding the violation was the

sole evidentiary basis for revocation); Farrish v. Mississippi

State Parole Bd., 836 F.2d 969, 978 (5th Cir. 1988) (concluding

that the admission of hearsay statements deprived the parolee of

“his right to confront the adverse witness whose information

provided the basis for parole revocation in a situation where his

interest in exercising that right was paramount”).4 We must here

ascertain whether the Supreme Court intended Morrissey’s minimum

due process protections to apply at both the violation and the

mitigation stages of the revocation hearing or only to the question

whether the parolee breached a condition of his parole.

3
Although styled as a denial of the right of confrontation,
Williams’s claim more closely approximates a due process argument
based on the denial of his right to present his own case--that is,
to call a witness who would testify about mitigative circumstances
that might suggest that the violation did not warrant revocation.
This distinction, however, does not affect our resolution of
Williams’s appeal.
4
We explained in United States v. Grandlund, 71 F.3d 507(5th
Cir. 1996), that confrontation of a particular witness may be
disallowed upon a finding of good cause, which requires the
weighing of the defendant’s interest in confronting the witness
with the government’s interest in denying that right. The indicia
of reliability of the challenged evidence is an important factor in
this balancing test. See id. at 510.

8
 In United States v. Holland, 850 F.2d 1048 (5th Cir. 1988), we

stated:

When it is determined that a person charged with a
probation violation admits the violation charged, the
procedural safeguards announced in Morrissey v. Brewer
are unnecessary. However, even a probationer who admits
the allegations against him must still be given an
opportunity to offer mitigating evidence suggesting that
the violation does not warrant revocation.
...

Contrary to the government’s contentions, a
probationer’s admission that he violated the terms of
probation does not entitle him to less due process than
a probationer who contests the asserted violations. Even
a probationer who admits the allegations against him must
be given an opportunity to “explain away the accusation”
and to offer mitigating evidence suggesting that the
violation doesn’t warrant revocation.

Id. at 1050-51 (citations omitted).5 We think it clear from this

passage and from the Supreme Court’s decision in Morrissey that a

parolee’s admission of a violation does not eviscerate the due

process protections otherwise accorded him. Although the Court

5
With respect to the first sentence of the passage quoted from
Holland, we reiterate that there is no right to present mitigation
evidence where an admitted violation requires revocation. See
Pickens v. Butler, 814 F.2d 237, 239 (5th Cir. 1987) (“[I]t is only
where the factfinder has discretion to continue parole that the
parolee is entitled to show an excuse for the violation or that
revocation is not appropriate.”). And, once the violation is
admitted, certain of the Morrissey due process requirements become
far less relevant. Where a violation supports, but does not
mandate, revocation, however, this first sentence must be read in
the full context of Holland and cannot be interpreted as an
absolute bar to any attempt to demonstrate mitigative factors. At
most, Holland’s statement may mean that a parolee could be required
to make a greater showing of his interest in procuring the
testimony he seeks. Any other reading would disregard Holland’s
fuller explanation of the due process rights of a parolee in the
context of mitigation.

9
distinguished the question whether the parolee violated a condition

from the question whether that violation warranted revocation, it

viewed the revocation hearing as properly addressing both

inquiries. See Morrissey, 408 U.S. at 484, 92 S. Ct. at 2602

(“What is needed is an informal hearing structured to assure that

the finding of a parole violation will be based on verified facts

and that the exercise of discretion will be informed by an accurate

knowledge of the parolee’s behavior.”); cf. Black v. Romano, 471

U.S. 606, 612, 105 S. Ct. 2254, 2258 (1985) (noting that, where

there is discretion to continue probation or parole, “the parolee

or probationer is entitled to an opportunity to show not only that

he did not violate the conditions, but also that there was a

justifiable excuse for any violation or that revocation is not the

appropriate disposition”). In identifying the minimum due process

requirements for a revocation hearing, the Court did not suggest

that we adhere to those requirements at the violation stage and

simply discard them at the mitigation stage.

From this, it is clear that Morrissey (and Holland) intended

that a parolee, even one who has admitted the violation of a parole

condition, has a qualified right to confront and cross-examine

witnesses and present evidence in support of mitigation. We

caution, however, that this interpretation does not transform the

revocation hearing into a full-scale trial. See Morrissey, 408

U.S. at 489, 92 S. Ct. at 2604. A hearing body may still determine

10
that good cause exists to disallow the confrontation of a

particular witness and may bar the presentation of testimonial and

documentary evidence not relevant or material to the violation or

mitigative factors.

In this case, the respondent suggests that there was no

invasion of Williams’s right to present evidence on his own behalf

because he failed to subpoena the parole officer. As an initial

matter, we find the respondent’s reliance on the lack of a subpoena

to be disingenuous. Williams made clear in his pre-hearing letter

that he wanted his parole officer to be present for examination and

he objected to the introduction of her affidavit on the ground that

it denied him his right to confront and cross-examine the officer.

Under the circumstances, these measures sufficed to invoke his due

process rights.6 See McBride v. Johnson, 118 F.3d 432, 438-39 (5th

6
We note that Williams received a notice of his rights in the
revocation process, which included the right

[t]o be heard on the alleged violation(s). You may have
witnesses appear on your behalf, present letters,
affidavits, and statements supporting your claims or
defenses. You may examine and confront persons giving
adverse information unless the Hearing Officer finds good
cause for not allowing such to occur. You may request
that subpoenas be issued for witnesses.

In his letter to the Hearing Section of the Parole Board, Williams
requested the appointment of counsel, in part, so that he would be
afforded all his rights “such as subpoenaing [the parole officer]
and her files so that they may be examined and cross examined.” In
light of this communication, Williams cannot be faulted for not
having secured a subpoena, particularly after be was informed that
he could request that subpoenas be issued for witnesses. Moreover,
we are reluctant to hinge the right of confrontation on the
existence of a subpoena where the witness sought for testimony is

11
Cir. 1997) (finding that a parolee adequately invoked his right to

confront the witness, notwithstanding his failure to object to

hearsay testimony, where the parolee had clearly expressed his

intent to have the alleged victim be present during the revocation

proceedings).

The respondent also asserts that Williams suffered no denial

of his right of confrontation and cross-examination. In support of

this proposition, the respondent notes that Williams did not

dispute the accuracy of the parole officer’s affidavit regarding

the violation and that the hearing officer found good cause to deny

confrontation based on the agency policy of not requiring parole

officers to travel outside their district area to attend a

revocation hearing. We are not persuaded that there was sufficient

good cause to deny Williams’s right to have his parole officer

appear as a witness at the revocation hearing. The record

indicates that the hearing officer allowed the introduction of the

affidavit over objection solely on the ground that agency policy

does not require a supervising officer to travel outside her

district office area. Although we have recognized the government’s

interest in avoiding the significant effort and expenditure that

may be required to secure certain witnesses, see United States v.

McCormick, 54 F.3d 214, 225 (5th Cir. 1995); United States v.

the state-employed parole officer and a pre-hearing request is made
for her attendance.

12
Kindred, 918 F.2d 485, 487 n.1 (5th Cir. 1990),7 we have never

suggested that conservation of the public fisc will in every

instance trump a parolee’s interest in examining witnesses. A

finding of good cause requires the weighing of the respective

interests of the parolee and the government. The record provides

no evidence that the hearing officer made any particularized

inquiry. We cannot sanction a finding of good cause based on the

mere recitation of a blanket agency policy without any assessment

of the strength of the parolee’s competing interest in examining

the witness.8 The failure to evince any regard for the parolee’s

7
The respondent’s reliance on Kindred and McCormick is
misplaced. Those cases, as well as United States v. Grandlund, 71
F.3d 507 (5th Cir. 1995), involved revocations based on lab reports
that detected the use of a controlled substance. We found that the
government’s interest in avoiding the significant expense of
procuring the testimony of lab employees outweighed the parolee’s
interest in confrontation and cross-examination, particularly in
light of the circumstances and the indicia of reliability of the
hearsay at issue in those cases. Williams’s interest in
confrontation was arguably stronger than the interests pressed in
Kindred, McCormick, and Grandlund. More importantly, Williams’s
complaint, as the respondent recognizes, focuses more on the
infringement upon his right to present mitigation evidence than on
his inability to challenge the reliability of the parole officer’s
factual assertions. Thus, the cases cited by the respondent do not
speak directly to the type of due process deprivation claimed here.
8
In a given case, the government’s interest in avoiding the
expense associated with the parole officer’s attendance may very
well outweigh the parolee’s interest in her presence at the
hearing. We do not suggest that a parolee is entitled to the
testimony of his parole officer; we hold only that a parolee has a
right to elicit such testimony where a pre-hearing request is made
for the witness’s presence, the evidence sought bears directly on
the violation or mitigation, and the State’s interests do not rise
to the level of good cause to deny the request.

13
identified need for a witness’s testimony is particularly troubling

in a case such as this one, where the mitigating evidence sought to

be elicited is so closely tied to the violation itself. In this

case, Williams’s parole officer might have testified that she found

Williams’s fear to be credible and that she had indicated that he

would be able to remain in California if he paid certain fees. It

is certainly conceivable that a hearing body might have found such

testimony to be persuasive and to mitigate Williams’s violation.

The lack of a particularized finding of good cause, in

combination with Williams’s interest in having the parole officer

testify, could well lead us to conclude that a violation of

Williams’s due process rights occurred. That said, we acknowledge

that this is a close case. Williams did not seek to impeach the

factual assertions made in the parole officer’s affidavit.

Instead, he sought her testimony to bolster his own assertion that

he had been justified in fleeing Texas and that the officer had

represented that she would secure written authorization for his

move if he paid certain fees. Under these circumstances, the

hearing officer might have found that the State’s interest in

conserving resources outweighed Williams’s interest in the parole

officer’s testimony because that testimony would have been

cumulative and Williams’s own explanation was not challenged.

In this case, however, we need not delve further into the

question of error. We may not grant habeas relief unless the error

at issue “‘had substantial and injurious effect or influence in

14
determining’” the proceeding’s outcome.9 Brecht v. Abrahamson, 507

U.S. 619, 623, 113 S. Ct. 1710, 1714 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946));

accord Calderon v. Coleman, -- U.S. --, 119 S. Ct. 500, 503 (1998)

(per curiam); California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 338

(1996); Harris v. Warden, Louisiana State Penitentiary, 152 F.3d

430, 437 (5th Cir. 1998); Woods v. Johnson, 75 F.3d 1017, 1026 (5th

Cir. 1996). On the record before us, we cannot conclude that the

State’s failure to produce Williams’s parole officer as a hearing

witness contributed to the revocation decision. See Woods, 75 F.3d

at 1026 (“[U]nder Brecht, a constitutional trial error is not so

harmful as to entitle a defendant to habeas relief unless there is

more than a mere reasonable possibility that it contributed to the

verdict.”). The hearing officer acknowledged Williams’s

explanation for his violation, and there is no indication that she

questioned his credibility. It appears instead that,

notwithstanding Williams’s justification for leaving Texas without

authorization, the Parole Board found the violation sufficient to

support revocation. We therefore cannot say that the absence of

the testimony sought by Williams substantially affected or

9
Both the Supreme Court and this court have likened this
harmless-error standard to a requirement that the error have
resulted in actual prejudice. See Calderon v. Coleman, -- U.S. --,
119 S. Ct. 500, 503 (1998) (per curiam); Woods v. Johnson, 75 F.3d
1017, 1026 (5th Cir. 1996).

15
influenced the Parole Board’s decision.10 Because any error

resulting from Williams’s inability to have the parole officer

testify was harmless, we affirm the district court’s denial of the

petition for a writ of habeas corpus.

AFFIRMED

10
The only discrepancy between the hearing officer’s findings
and Williams’s claim is that the former indicated that the parole
officer was uncertain whether authorization for the move could be
obtained while Williams asserted that the officer had promised that
he would receive authorization if he paid the fees he owed. This
difference, however, relates not to the reason why Williams
violated a parole condition in the first instance, but instead to
why he may have remained in California. Even if the parole officer
would have admitted that she made any promise to provide
authorization after Williams left Texas, we are not convinced that
such testimony would have affected the outcome here, given the
obvious emphasis placed on the violation by both the hearing
officer and the Parole Board.

16