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Johnson v. State, Board of Pardons and Paroles

United States District Court, M.D. Alabama, Northern Division

February 11, 2015

GUS JOHNSON, # 108854, Petitioner,
v.
STATE OF ALABAMA BOARD OF PARDONS AND PAROLES, et al., Respondents.

RECOMMENDATION OF THE MAGISTRATE JUDGE

CHARLES S. COODY, Magistrate Judge.

This cause is before the court on a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254 (Doc. # 1) filed by state inmate Gus Johnson ("Johnson"), who contends the Alabama Board of Pardons and Paroles ("Board") denied him due process when revoking his parole.

I. BACKGROUND AND PROCEDURAL HISTORY

Johnson was convicted in July 1983 in the Circuit Court of Mobile County, Alabama, on the charge of burglary in the second degree. He was sentenced as a habitual felony offender to a term of life imprisonment. The Board granted him parole in November 1996.

On May 9, 2011, Johnson's parole officer filed a parole-violation report with the Board, alleging Johnson had violated the conditions of his parole by committing new criminal offenses, specifically, criminal surveillance and criminal trespassing in the third degree. Resp't Ex. 1 at 36-37.

On May 16, 2011, a hearing officer appointed by the Board conducted a parole-court hearing on the violations alleged in the parole officer's report. Following that hearing, the hearing officer issued a written report finding Johnson guilty of violating the conditions of his parole and recommending that his parole be revoked. Resp't Ex. 1 at 39-46.

The hearing officer's written report was forwarded to the Board. On May 24, 2011, upon considering the hearing officer's report and recommendation, the Board revoked Johnson's parole. Resp't Ex. 1 at 47.

In September 2011, Johnson filed a petition for writ of certiorari in the Circuit Court of Montgomery County, Alabama, alleging that the Board had denied him due process in revoking his parole.[1] Resp't Ex. 1 at 5-16. Specifically, he claimed (1) his parole was revoked based on the testimony of an impeached witness; (2) his revocation was based on hearsay evidence; and (3) the Board failed to provide him with an explanation of the evidence relied on to revoke his parole. Id. The Board moved to dismiss his petition. Id. at 27-47.

On June 21, 2012, the circuit court entered an order finding Johnson was afforded due process in the revocation proceedings and granting the Board's motion to dismiss his petition. Resp't Ex. 1 at 50.

Johnson appealed to the Alabama Court of Criminal Appeals, reasserting two claims he presented to the circuit court[2] and adding a claim that the parole officer listed as a witness did not testify at the revocation hearing, depriving him of his confrontation rights. On November 30, 2012, by memorandum opinion, the Alabama Court of Criminal Appeals affirmed the circuit court's judgment. Resp't Ex. 2 at 3-7.

On July 12, 2013, Johnson filed this § 2254 petition asserting:

1. His parole was revoked based on hearsay evidence.
2. The Board failed to provide him with an explanation of the evidence relied on in revoking his parole.
3. His parole was revoked based on the testimony of an impeached witness.
4. The parole officer listed as a witness did not testify at the revocation hearing.

Doc. # 1 at 6-7.

In their answer to Johnson's petition, the respondents argue Johnson received the due process to which he was entitled under Morrissey v. Brewer, 408 U.S. 471 (1972), and that the state court properly adjudicated his claims on the merits. Doc. No. # 14.[3] See Williams v. Taylor, 529 U.S. 362, 402 (2000).

Upon review of the pleadings, record, and relevant legal authorities, this court finds no evidentiary hearing is required, Rule 8(a), Rules Governing Section 2254 Cases in United States District Courts, and concludes Johnson's § 2254 petition should be denied.

II. APPLICABLE LAW

Federal Habeas Standards


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