United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 8, 2001 Decided March 15, 2002
No. 00-7261
Phillip E. Duckett,
Appellant
v.
Margaret Quick, Director, D.C. Board of Parole, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 98cv00831)
Beverly G. Dyer, Assistant Federal Public Defender, ar-
gued the cause for appellant. With her on the briefs was A.
J. Kramer, Federal Public Defender.
Mary L. Wilson, Assistant Corporation Counsel, argued
the cause for appellees. With her on the brief were Robert
Rigsby, Corporation Counsel, Charles L. Reischel, Deputy
Corporation Counsel, and Edward E. Schwab, Senior Coun-
sel.
Before: Ginsburg, Chief Judge, Rogers and Garland,
Circuit Judges.
Opinion for the Court filed by Chief Judge Ginsburg.
Ginsburg, Chief Judge: Phillip Duckett petitioned the Unit-
ed States District Court for a writ of habeas corpus, alleging
that the District of Columbia Board of Parole (BOP) revoked
his parole in violation of the Due Process Clause of the
Fourteenth Amendment to the Constitution of the United
States. The district court denied the petition and Duckett
appealed. Finding no merit in Duckett's claims, we affirm
the judgment of the district court, albeit for reasons distinct
from those given by the district court.
I. Background
In May, 1995 Duckett was released on parole. Just over a
year later he was arrested for failing to report to his parole
officer; as a result, in October, 1996 the BOP revoked his
parole. After unsuccessfully challenging the revocation in the
courts of the District of Columbia, Duckett petitioned the
district court for a writ of habeas corpus. Because the BOP
could not locate a usable audiotape recording of the original
parole revocation hearing, it granted Duckett a new hearing.
Duckett, who had the assistance of counsel at this second
hearing, raised two defenses. First, he argued that he did
not know he was required to report and denied that his parole
officer told him to report. Second, Duckett argued that
because he had found a job and a place to live and had stayed
out of trouble, the BOP should not revoke his parole based
upon a minor violation. Nonetheless, the BOP again revoked
Duckett's parole because of his failure to report.
Duckett renewed his habeas petition, which was denied by
the district court in October, 2000. The district court con-
cluded that Duckett had received all the process he was due
under Morrissey v. Brewer, 408 U.S. 471 (1972); the BOP's
revocation decision was supported by Duckett's admission
that he failed to report; and the BOP's failure to follow D.C.
municipal regulations did not deny Duckett due process.
Duckett v. Quick, No. 98-0831, slip op. at 2-3 (Oct. 4, 2000).
Duckett filed a notice of appeal, and the district court issued
a certificate of appealability.
II. Analysis
"The writ of habeas corpus shall not extend to a prisoner
unless ... [h]e is in custody in violation of the Constitution or
laws or treaties of the United States." 28 U.S.C.
s 2241(c)(3). Duckett challenges the BOP's revocation of his
parole as violating in a number of respects his constitutional
right not to be deprived of liberty without due process of law.
First, Duckett contends due process entails a substantive
component requiring the BOP to consider not only whether
he violated a condition of his parole but also whether "circum-
stances in mitigation suggest that the violation does not
warrant revocation." For this Duckett relies principally upon
Black v. Romano, 471 U.S. 606 (1985). Although the Court in
Black did not hold that due process always requires "that the
factfinder in a revocation proceeding ... be granted discre-
tion to continue probation or parole," it acknowledged that
"concerns for fundamental fairness would preclude the auto-
matic revocation of probation" in some circumstances. Id. at
612, 615 (citing Bearden v. Georgia, 461 U.S. 660, 672 (1983)).
Furthermore, "where such discretion exists ... 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." Black, 471 U.S. at 612.
Black is of no help to Duckett because the record does not
indicate that the BOP revoked his parole based solely and
mechanically upon its finding he violated a condition of parole,
and the transcript of the revocation hearing confirms he had
the opportunity to argue that his violation was excusable and
that his parole should not be revoked. Duckett testified that
he did not recall being told to report to his parole officer,
presented to the BOP evidence that while on parole he had a
job and a place to live, and argued against revocation on those
grounds. The BOP, however, determined that the reporting
requirement was one of the most important conditions of
parole, and that Duckett's violation of that requirement was
"flagrant." Thus, the BOP appears to have considered both
the seriousness of Duckett's violation and the mitigating
factors he advanced. As a result, even if due process re-
quires the BOP to have exercised discretion before revoking
his parole, we cannot conclude that it failed to do so.
Duckett, noting that the hearing examiner "did not explicit-
ly find that [his] testimony that he did not recall being
instructed to report back was not credible," and again empha-
sizing the factors militating against revocation, also argues
that "the record in this case does not support a rational
conclusion that [he] was not suitable for continued parole." If
the BOP's decision were either totally lacking in evidentiary
support or were so irrational as to be fundamentally unfair,
then the revocation of his parole indeed would violate due
process. See Douglas v. Buder, 412 U.S. 430, 432 (1973)
(holding that revocation of probation "totally devoid of sup-
port" violates due process); Bearden, 461 U.S. at 672 (estab-
lishing substantive due process right not to have probation
revoked due to inability, despite reasonable efforts, to pay
fines or restitution, unless alternative punishments are inade-
quate).
Duckett has not made either showing, however. The BOP
had before it Duckett's admission that he failed to report, and
his parole officer's statement that he had instructed Duckett
upon his release to report back to him on June 5, 1995. Thus,
there was evidentiary support for the BOP's conclusion that
Duckett had violated a condition of his parole. And revoking
Duckett's parole for failing to report as instructed was not
fundamentally unfair. Unlike the violation at issue in Bear-
den, Duckett's violation was within his control. Furthermore,
we think the BOP's conclusion that failing to report as
directed is a major violation of parole was reasonable; as the
BOP explained, parole "is about accountability" and failing to
report prevents the Government from monitoring a parolee's
conduct. See United States v. Manfredonia, 341 F. Supp.
790, 795 (S.D.N.Y. 1972) ("The requirement to report, to
account, is centrally and necessarily implied in the probation-
er's status").
Next, Duckett argues that he was denied due process
because the BOP failed to produce "a record of the hearing
sufficient to establish compliance with due process require-
ments." More specifically, he claims that neither the BOP's
written decision nor the audiotape of his second revocation
hearing "documents a finding" that he was told to report.
The BOP did, however, state as a fact found in its "Order"
dated July 21, 1999 that Duckett had "[f]ailed to report as
directed" by his parole officer. Because the BOP's written
statement memorialized this finding, it is of no moment that
there are gaps in the tape of the hearing.
In a relatively undeveloped argument, Duckett contends
that he was denied "the right to confront and cross-examine
adverse witnesses," Morrissey, 408 U.S. at 489, because the
BOP did not allow him to cross-examine his parole officer and
did not find good cause why he should not be allowed to do so.
Indeed, the BOP did not find good cause why the officer's
testimony had to be admitted in documentary form, thereby
depriving Duckett of the opportunity to cross-examine him.
The right to cross-examine witnesses can be waived, however,
see Taylor v. United States, 414 U.S. 17, 19-20 (1973) (defen-
dant in criminal trial waived right to cross-examine witnesses
by failing to attend trial), and two circuits have recognized
specifically that the right to cross-examine witnesses in a
parole revocation hearing can be waived, see White v. White,
925 F.2d 287, 291-92 (9th Cir. 1989) (stating Morrissey right
to cross-examine can be waived but holding parolee's admis-
sion of parole violations did not constitute waiver); McBride
v. Johnson, 118 F.3d 432, 438-39 (5th Cir. 1997) (holding
parolee had "invoke[d]" right of cross-examination by ques-
tioning witness's absence at prior hearing and objecting to
proffered hearsay testimony).
There is no indication that Duckett, who was represented
by counsel at the revocation hearing, asked to cross-examine
his parole officer. Indeed, Duckett nowhere asserts that he
made such a request and, when asked at oral argument,
Duckett's counsel was unable to assert that Duckett had
invoked his right at the hearing. Because Duckett has failed
to establish that he did not waive his right to cross-examine
his parole officer, we cannot grant his petition on this ground.
Cf. Johnson v. Zerbst, 304 U.S. 458, 468-69 (1938) (burden
rests on habeas petitioner to establish that he did not waive
his right to counsel).
Finally, Duckett presses most vigorously his argument that
the BOP denied him due process by failing to comply with
D.C. municipal regulations requiring the BOP to (1) exercise
discretion in determining whether violation of a condition
requires revocation of parole, (2) consider certain specific
factors, and (3) discuss each factor in its written decision.
D.C. Mun. Regs. tit. 28 ss 219.6, 219.8, 219.12. Duckett
contends that these regulations, like the regulations govern-
ing the parole determinations at issue in Greenholtz v. In-
mates of the Nebraska Penal and Correctional Complex, 442
U.S. 1 (1979), and Board of Pardons v. Allen, 482 U.S. 369
(1987), create a liberty interest in parole and, most important,
that a violation of the regulations is therefore a denial of due
process.
Although it is obvious that in this case the BOP did not
comply with the D.C. regulation requiring it to discuss in its
written decision its consideration of each factor listed in
s 219.8 of the regulations, the BOP did not thereby deny
Duckett due process. Duckett's argument is based upon the
erroneous assumptions that his liberty interest in remaining
on parole arose from the regulations governing parole revoca-
tion, and that therefore due process required the BOP to
comply with the regulations. In fact, Duckett's constitutional
interest in remaining free on parole was independent of any
regulation governing revocation procedures. Morrissey, 408
U.S. at 480-82. Moreover, even when a liberty interest does
arise from a state or local regulation, the procedures required
before a person may be deprived of his constitutional right to
liberty are derived not from the regulation but from the
Constitution itself. See Greenholtz, 442 U.S. at 14-16 (dis-
cussing procedures required by the Constitution). The gen-
eral rule is that "[o]nce state law defines the substance,
constitutional law establishes the minimum procedures." Ar-
chie v. City of Racine, 847 F.2d 1211, 1217 (7th Cir. 1988);
see also Brandon v. District of Columbia Board of Parole,
823 F.2d 644, 648-49 (D.C. Cir. 1987) ("state procedural law
requirements must be enforced in state courts under state
law"). Therefore, Duckett's argument that due process re-
quired the BOP to follow its own regulations must fail. The
procedures required by due process before one's parole may
be revoked, set out in Morrissey were, as we have held,
provided to Duckett to the extent they were not waived by
him.
Duckett invokes yet another claimed liberty interest, name-
ly, that of keeping his good time credits, which he claims were
"effectively invalidated" when the BOP revoked his parole.
See Wolff v. McDonnell, 418 U.S. 539 (1974). Because Duck-
ett had a liberty interest in remaining on parole, and the
parole revocation procedures required under Morrissey and
provided to Duckett are more extensive than those required
under Wolff for revocation of good time credits, Wolff, 418
U.S. at 563-72, Duckett's loss of good time credits could not
have violated the requirements of due process.
III. Conclusion
For the foregoing reasons the judgment of the district
court denying Duckett's petition for a writ of habeas corpus is
Affirmed.