VAN ZANT v. FLORIDA PAROLE COMMISSION et al

Filing 164

ORDER - Petitioner's 160 Motion for Order Directing Respondent to Present Evidence is Denied. - - - REPORT AND RECOMMENDATION It is recommended - 1. That petitioner's 159 Motion for Stay and Abeyance be Denied. - 2. T hat the 1 petition for writ of habeas corpus be Denied. - 3. That a certificate of appealability be Denied. - - R&R flag set - - ( Internal deadline for referral to district judge if objections are not filed earlier: 2/10/2010. ) - - - Signed by MAGISTRATE JUDGE ELIZABETH M TIMOTHY on January 13, 2010. (cbj)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA PANAMA CITY DIVISION

PHILLIP VAN ZANT, Petitioner, vs. FLORIDA PAROLE COMMISSION, Respondent. ___________________________________/ ORDER, REPORT AND RECOMMENDATION This cause is before the court on Petitioner's petition for writ of habeas corpus filed under 28 U.S.C. § 2254 (Doc. 1), supporting documents (Doc. 2), supporting legal memorandum (Doc. 12), and supplemental pleading (Docs. 27, 152). The Florida Parole Commission (hereinafter Parole Commission) filed an answer and supplemental answer to the petition and relevant portions of the state court record (see Doc. 19, Exhibits; Docs. 129, 153). Petitioner filed a reply and supplemental reply (Docs. 149, 161, 163). The matter is referred to the undersigned magistrate judge for report and recommendation pursuant to 28 U.S.C. § 636 and N. D. Fla. Loc. R. 72.2(b). After careful consideration of all issues raised by Petitioner, it is the opinion of the undersigned that no evidentiary hearing is required for the disposition of this matter, Rules Governing Section 2254 Cases 8(a). It is further the opinion of the undersigned that the pleadings and attachments before the court show that Petitioner is not entitled to relief. I. BACKGROUND AND PROCEDURAL HISTORY The relevant aspects of the procedural background of this case are undisputed and established by the state court record (see Doc. 19, Exhibits; Doc. 129, Exhibits). Petitioner's history with the Parole Commission began with his commitment in the Florida Department of Corrections for second Case No. 5:05cv208/RS/EMT

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degree murder in 1979 (Doc. 129-1, Ex. A). Petitioner's first grant of parole was in 1983 (Doc. 1291, Ex. C). He violated his parole conditions by possessing a rifle and shotgun, which led to revocation of his parole 1985 (id.). In 1986, he was again granted parole (Doc. 129-1, Ex. D). He violated his conditions by failing to follow the instructions of his parole officer to have no contact with his wife without prior written authorization, which led to revocation of his parole in 1987 (id.). Petitioner was paroled again in 1991 (Doc. 129-1, Ex. E). He violated his conditions by committing criminal trespass on another woman's property and having contact with her on numerous occasions after having been instructed to have no contact, which led to revocation of his parole in 1992 (id.). Petitioner was most recently paroled in 1999 (Doc. 129-2, Ex. F). On August 8, 2001, the Parole Commission revoked his parole based upon the determination that he violated condition 7 of his parole by "failing to obey all laws ordinances or statutory conditions of Parole in that on or about July 26, 2000, in Clarke County, Georgia, he did unlawfully and intentionally make harassing phone calls to Virginia Baird Johnston, by repeatedly calling [her], after being told by [her] not to call" (see Doc. 19, Ex. A). This revocation is the subject of the instant federal habeas action. Petitioner sought review of the Parole Commission's decision in the Florida courts by filing a petition for writ of habeas corpus in the Circuit Court in and for Lafayette County, Florida, Case No. 2001-CA-000117 (Doc. 19, Ex. B). On October 1, 2001, the state court denied the petition (Doc. 19, Ex. C). Petitioner sought review of the decision by filing a petition for writ of certiorari in the Florida First District Court of Appeal (hereinafter First DCA) (Doc. 19, Ex. E). On October 3, 2002, the appellate court denied the petition for certiorari (Doc. 19, Ex. F). Van Zant v. Florida Parole Comm'n, 835 So. 2d 1117 (Fla. 1st DCA 2002) (Table). On March 6, 2002, Petitioner filed a petition for writ of mandamus in the in the Circuit Court in and for Leon County, Florida, Case No. 2002-CA-000753, seeking to set aside the parole revocation (Doc. 19, Ex. G). On October 16, 2002, the court issued an order dismissing the petition as an abuse of the writ (Doc. 19, Ex. I). Petitioner sought review of the decision by filing a petition for writ of certiorari in the First DCA (Doc. 19, Ex. J). On July 8, 2003, the appellate court denied the petition (Doc. 36, Ex. K). Van Zant v. Florida Parole Comm'n, 853 So. 2d 414 (Fla. 1st DCA 2003) (Table).

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On July 8, 2003, Petitioner filed another habeas petition challenging the parole revocation; this time he filed it in the Circuit Court in and for Escambia County, Florida, Case No. 2003-CA001397 (Doc. 36, Ex. L). On January 8, 2004, the state court dismissed the petition for abuse of the writ (Doc. 36, Ex. N). Petitioner sought review of the decision by filing a petition for writ of certiorari in the First DCA (Doc. 36, Ex. O). On July 30, 2004, the appellate court dismissed the case for lack of jurisdiction (Doc. 36, Ex. P). Van Zant v. Florida Parole Comm'n, 886 So. 2d 232 (Fla. 1st DCA 2004) (Table). Petitioner filed the instant federal habeas action on October 7, 2005 (Doc. 1). II. STANDARD OF REVIEW Section 2254(a) of Title 28 provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court" upon a showing that his custody is in violation of the Constitution or laws of the United States. As the instant petition was filed after April 24, 1996, it is subject to the more deferential standard for habeas review of state court decisions under § 2254 as brought about by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub.L. 104-132, § 104, 110 Stat. 1214, 1218-19. In relevant part, section 2254(d) now provides: (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim­ (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C.A. § 2254 (2002).

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The United States Supreme Court explained the framework for § 2254 review in Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000).1 The appropriate test was described by Justice O'Connor as follows: In sum, § 2254(d)(1) places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied--the state court adjudication resulted in a decision that (1) "was contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id., 529 U.S. at 412­13 (O'Connor, J., concurring); Ramdass v. Angelone, 530 U.S. 156, 120 S. Ct. 2113, 2119­20, 147 L. Ed. 2d 125 (2000). In employing this test, the Supreme Court has instructed that on any issue raised in a federal habeas petition upon which there has been an adjudication on the merits in a formal State court proceeding, the federal court should first ascertain the "clearly established Federal law," namely, "the governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision." Lockyer v. Andrade, 538 U.S. 63, 71­72, 123 S. Ct. 1166, 155 L. Ed. 2d 144 (2003). The law is "clearly established" if Supreme Court precedent at the time "would have compelled a particular result in the case." Neelley v. Nagle, 138 F.3d 917, 923 (11th Cir. 1998), overruled on other grounds by Parker v. Head, 244 F.3d 813, 835 (11th Cir. 2001).

U n le s s otherwise noted, references to W illia m s are to the majority holding, written by Justice Stevens for the C o u r t (joined by Justices O'Connor, Kennedy, Souter, Ginsburg, and Breyer) in parts I, III, and IV of the opinion (529 U . S . at 367­75, 390­99); and Justice O'Connor for the Court (joined by Justices Rehnquist, Kennedy, Thomas, a n d -- e x c e p t as to the footnote-- S c a lia ) in part II (529 U.S. at 403­13). The opinion of Justice Stevens in Part II was j o in e d by Justices Souter, Ginsburg, and Breyer.
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Next, the court must determine whether the State court adjudication is contrary to the clearly established Supreme Court case law, either because "`the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or because `the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.'" Lockyer, 538 U.S. at 73 (quoting Williams, 529 U.S. at 405­06). The Supreme Court has clarified that "[a]voiding these pitfalls does not require citation to our cases--indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365, 154 L. Ed. 2d 263 (2002) (quoting Williams, 529 U.S. at 405­06). If the State court decision is found in either respect to be contrary, the district court must independently consider the merits of the petitioner's claim. If on the other hand, the State court applied the correct Supreme Court precedent and the facts of the Supreme Court cases and the petitioner's case are not materially indistinguishable, the court must go to the third step and determine whether the State court "unreasonably applied" the governing legal principles set forth in the Supreme Court's cases. The standard for an unreasonable application inquiry is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409. Whether a State court's decision was an unreasonable application of legal principle must be assessed in light of the record the court had before it. Holland v. Jackson, 542 U.S. 649, 652, 124 S. Ct. 2736, 2737­38, 159 L. Ed. 2d 683 (2004) (per curiam); cf. Bell v. Cone, 535 U.S. 685, 697 n.4, 122 S. Ct. 1843, 1851 n.4, 152 L. Ed. 2d 914 (2002) (declining to consider evidence not presented to state court in determining whether its decision was contrary to federal law). An objectively unreasonable application of federal law occurs when the State court "identifies the correct legal rule from Supreme Court case law but unreasonably applies that rule to the facts of the petitioner's case" or "unreasonably extends, or unreasonably declines to extend, a legal principle from Supreme Court case law to a new context." Putman v. Head, 268 F.3d 1223, 1241 (11th Cir. 2001). The State court's incorrect or erroneous application of clearly established law will be held to be reasonable and not warrant a writ so long as the State court adjudication results in a "satisfactory conclusion." Williams, 529 U.S. at 410­12.

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Section 2254(d) also allows federal habeas relief for a claim adjudicated on the merits in State court where that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). The Supreme Court has clarified that: "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041, 154 L. Ed. 2d 931 (2003) (dictum). When performing its review under § 2254(d), the federal court must bear in mind that any "determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see e.g. Miller-El, 537 U.S. at 340 (explaining that a federal court can disagree with a state court's factual finding and, when guided by AEDPA, "conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence"); Jones v. Walker, 496 F.3d 1216, 1226­27 (11th Cir. 2007) (holding that § 2254(d)(2)'s "unreasonable determination" standard "must be met by clear and convincing evidence," and concluding that that standard was satisfied where prisoner showed "clearly and convincingly" that the state court's decision "contain[ed] an `unreasonable determination' of fact."). Only if the federal habeas court finds that the petitioner satisfied AEDPA, and § 2254(d), does the court take the final step of conducting an independent review of the merits of the petitioner's claims. See Panetti v. Quarterman, 551 U.S. 930, 953, 127 S. Ct. 2842, 2858, 168 L. Ed. 2d 662 (2007); Jones, 496 F.3d 1216 (same). The writ will not issue unless the petitioner shows that he is in custody "in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254(a). Within this framework, the court will review Petitioner's claims. III. PETITIONER'S CLAIMS Ground One: "Actual Innocence/Fundamental Error--Respondent failed to show essential element of crime charged." Petitioner claims there was insufficient evidence to support the parole revocation, and the Parole Commission and state court's adjudication of this claim was based upon an unreasonable
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determination of the facts in light of the evidence presented in the state court proceeding (Doc. 1 at 6­9; Doc. 12 at 1­16; Doc. 27, attached Supplemental Pleading; Doc. 149 at 1­21, 43­44).2 He contends he was charged with violating Condition #7 of his parole, which required him to obey all laws or statutory conditions of parole, by making harassing phone calls to a former girlfriend, Virginia Johnston (see id.). Petitioner contends the evidence failed to show that he violated Georgia law (either O.C.G.A. § 16-11-39.1, which defines the crime of making harassing phone calls, or O.C.G.A. § 46-5-21, which defines the crime of using the telephone for obscene purposes), because there was no evidence that conversation ensued during any of the phone calls and no evidence that he made any phone calls with the intent to harass Ms. Johnston, which are essential elements of the crimes defined in those statutes (id.). Petitioner argues that the hearing examiner made no factual finding that he telephoned Ms. Johnston with the intent to harass her, and there was no evidence of such intent (id. at 5). Petitioner states he was never convicted of a violation of Georgia's harassing phone call law; in fact, the prosecutor filed a notice of his intent not to prosecute the charge on December 4, 2000. He also contends the evidence, including Ms. Johnston's testimony and the transcript of her answering machine tapes, demonstrated that he did not intend to harass her when he called her. Petitioner states Ms. Johnston acknowledged at the hearing that Petitioner's purpose for calling her was to persuade her to continue their relationship (Doc. 149 at 17). He further contends the transcripts of Ms. Johnston's answering machine tapes showed that Petitioner left three "polite" messages on her machine on a Monday, and he made four attempts to call her collect from the county jail on Thursday, July 27, 2000, after he was arrested for the parole violation (see Doc. 27, attached Supplemental Pleading at 4­5 and attached transcript; Doc. 149 at 8, 11­12). The answering machine transcript shows that Ms. Johnston received two more attempted collect calls on Sunday, and then a call from Petitioner's brother on Monday (see Doc. 27, attached transcript). Petitioner additionally contends that Ms. Johnston's testimony that he called her 150­200 times from July 5­26, 2000, is refuted by her telephone records, which did not show any calls from the 912 area code (the area code where Petitioner lived) (Doc. 149 at 18). Petitioner states that Investigator Cole

The page references used in this Report reflect the page numbers as enumerated in the court's electronic d o c k e tin g system rather than those the parties may have assigned.
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acknowledged in his testimony that the telephone records dating from July 11­26, 2000, did not indicate repeated phone calls by Petitioner (Doc. 12 at 6). Petitioner additionally points out that the telephone records showed that Ms. Johnston called him on three occasions during that period, July 18, July 19, and July 24 (Doc. 149 at 17, 18). Petitioner acknowledges that when his counsel asked Ms. Johnston why she called Petitioner, she responded that she was calling to tell him to quit calling her (Doc. 1 at 9). In support of his claim that there was insufficient evidence that he violated Georgia's harassing phone call statute, Petitioner cites cases from Massachusetts, Maryland, and Florida in which those courts have overturned convictions under similar statutes because there was insufficient evidence to prove the defendant's intent to harass beyond a reasonable doubt (Doc. 149 at 13­16). Additionally, Petitioner states that Ms. Johnston's credibility was impeached by evidence that she invited Petitioner to her home over the July 4th weekend of 2000, and she called him three times after that. Petitioner further asserts Ms. Johnston was motivated to falsely accuse him of making harassing phone calls because she was angry over the fact that he had not previously told her that he was on parole. Petitioner states that after the final revocation hearing, he obtained additional evidence that would have impeached Ms. Johnston's credibility. He states he received information that Ms. Johnston was convicted of felony hit and run in 1994 and subsequently violated her probation twice for public intoxication and once for battery on a police officer. The Parole Commission further contends that the actual innocence standard does not apply to the instant case (Doc. 129 at 11). The Commission contends an actual innocence claim is not itself a basis for habeas relief but merely a means for obtaining federal review of a procedurally barred constitutional claim (id. at 11­12). The Commission argues Petitioner is attempting to assert actual innocence as an independent basis for challenging the parole revocation, not to overcome a procedural bar; therefore, his claim is not cognizable (id. at 11). The Parole Commission further argues that Petitioner has failed to show the existence of new reliable evidence that was not presented at the revocation hearing; and he has failed to establish that it is more likely than not that, in light of the new evidence, no reasonable parole examiner would have found him guilty by a preponderance of the evidence (id. at 12­14).

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The Parole Commission further contends that conviction of a new crime is not necessary to find a violation of parole (id. at 14). The fact finder may determine, independent of a formal conviction, that a law has been violated, including a determination that a specific intent element was satisfied (id. at 14, 17). Even if a parolee has been acquitted of a new law violation, the fact finder in a parole revocation hearing may determine that a parole violation occurred based on the same conduct (id.). The Parole Commission argues that in Petitioner's case, the record shows that the criminal charge of making harassing phone calls was not prosecuted by the State of Georgia because Petitioner was being returned to Florida on the parole violation, not for lack of evidence (id. at 14­15). The Parole Commission contends that under Florida law, a state court reviewing a decision of an administrative agency, such as the Parole Commission, may not re-weigh the evidence or reevaluate the credibility of witnesses (id. at 16­17, 19). The state court must simply evaluate whether the record conclusively demonstrates that the hearing examiner's factual findings were support by competent substantial evidence (id. at 16­19). The Parole Commission contends that the record of Petitioner's revocation hearing demonstrates that there was competent substantial evidence that Petitioner intentionally made harassing phone calls to Ms. Johnston by repeatedly calling her after being told by her not to do so; therefore, the state court properly upheld the parole revocation (id. at 17­19). To the extent Petitioner asserts a freestanding claim of actual innocence based upon his discovery of "new evidence," namely, the transcript of Ms. Johnston's answering machine tapes and evidence of her criminal record, he has not stated a cognizable claim for federal habeas relief. Neither the Supreme Court nor the Eleventh Circuit has recognized a freestanding claim of actual innocence in federal habeas corpus, especially in non-capital cases. See Herrera v. Collins, 506 U.S. 390 at 417, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993) (assuming, without deciding, that "in a capital case a truly persuasive demonstration of `actual innocence' made after trial would render the execution of a defendant unconstitutional and warrant federal habeas relief if there were no state avenue open to process such a claim"); House v. Bell, 547 U.S. 518, 554, 126 S. Ct. 2064, 165 L. Ed. 2d 1 (2006) (declining to resolve the issue left open in Herrera whether freestanding innocence

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claims are cognizable in federal habeas). Therefore, to the extent Petitioner asserts a freestanding claim of actual innocence based upon the recently obtained transcripts of Ms. Johnston's answering machine tapes or other evidence, he has not stated a cognizable claim for relief. Petitioner's claim may also be liberally construed as challenging the sufficiency of the evidence to support the parole revocation. The state court record demonstrates that Petitioner exhausted this claim in the state courts. Therefore, the court will review Ground One to the extent Petitioner claims that the parole revocation violated due process because there was insufficient evidence to support the revocation. 1. Clearly Established Supreme Court Law

As an issue of federal law, Petitioner's claim of insufficiency of the evidence derives from the Fourteenth Amendment due process requirement that the evidence presented at trial be sufficient to convict. Although the Supreme Court has not specifically held that the Due Process Clause requires sufficiency of the evidence in probation or parole violation proceedings, it has suggested this. See Black v. Romano, 471 U.S. 606, 615­16, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985) ("The decision to revoke Romano's probation satisfied the requirements of due process. . . . The courts below concluded, and we agree, that there was sufficient evidence to support the state court's finding that Romano had violated the conditions of his probation."); see also Douglas v. Buder, 412 U.S. 430, 93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973) (probation revocation invalid under Due Process Clause where there was no evidentiary support for finding that probation conditions were violated). However, as recognized by the Eleventh Circuit, the Supreme Court has not established that due process in a parole or probation revocation proceeding requires proof beyond a reasonable doubt that the parolee committed the alleged violation. See United States v. Taylor, 931 F.2d 842, 848 (11th Cir. 1991) (there is no requirement in a probation revocation hearing to prove beyond a reasonable doubt that the defendant committed the alleged acts; all that is required is that the evidence reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation). Indeed, the Supreme Court has not specifically stated the standard of proof that must be met in probation or parole revocation proceedings to satisfy the Due Process Clause. See, e.g., Black, 471 U.S. at 615­16 ("Bearden v. Georgia[, 461 U.S. 660, 666, and n.7, 103

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S. Ct. 2064, 76 L. Ed. 2d 221 (1983)] recognized substantive limits on the automatic revocation of probation where an indigent defendant is unable to pay a fine or restitution. We have no occasion in the present case, however, to decide whether concerns for fundamental fairness prohibit the automatic revocation of probation in any other context."); Douglas v. Buder, 412 U.S. 430, 93 S. Ct. 2199, 37 L. Ed. 2d 52 (1973) (probation revocation invalid under Due Process Clause where there was no evidentiary support for finding that probation conditions were violated). Under Florida law, it is the hearing examiner's function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact. Heifetz v. Department of Business Regulation, 475 So. 2d 1277, 1281 (Fla. 1st DCA 1985). The Parole Commission is bound to accept the hearing examiner's findings if the findings are supported by competent, substantial evidence. See Tedder v. Fla. Parole Comm'n, 842 So. 2d 1022, 1025 (Fla. 1st DCA 2003) (Commission is not at liberty to reweigh the evidence considered by the hearing examiner where the examiner's finding is supported by competent, substantial evidence); see also Richardson v. Fla. Parole Comm'n, 924 So. 2d 908 (Fla. 1st DCA 2006) (Commission improperly re-weighed evidence in rejecting examiner's conclusions instead of determining whether competent, substantial evidence supported examiner's findings). If, as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer's role to decide the issue one way or the other. Tedder, 842 So. 2d at 1025. 2. Federal Review of State Court Decision

In Petitioner's state habeas petition, Petitioner challenged the sufficiency of the evidence to support the parole revocation (see Doc. 19, Ex. B). The basis for Petitioner's parole revocation was Petitioner's failure to obey the law by making harassing phone calls to Virginia Baird Johnston by repeatedly calling her after she told him not to. The Georgia harassing phone call statute states: § 16-11-39.1. Harassing phone calls (a) A person commits the offense of harassing phone calls if such person telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person or the family of such other person; uses over the telephone language threatening bodily harm; telephones and intentionally fails to hang up or disengage the connection; or knowingly permits any
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telephone under such person's control to be used for any purpose prohibited by this subsection. O.C.G.A. § 16-11-39.1 (West). Under this criminal provision, one commits the offense of harassing phone calls if one telephones another person repeatedly "for the purpose of annoying, harassing, or molesting another person." See Moss v. State, 245 Ga. App. 811, 813 (Ga. App. 2000) (quoting O.C.G.A. § 16-11-39.1). No requirement exists that any conversation take place. Id. The hearing examiner's written summary of the evidence adduced at the final parole hearing is included in Petitioner's parole record (Doc. 129-2, Ex K). Ms. Johnston, the recipient of the phone calls, testified that she and Petitioner dated from April or May through "the first of July," but on or about July 5, she told him to leave her alone and stop calling her (Doc. 129-2, Ex. K at 44­45). She testified that "that didn't work," and Petitioner continued calling her, despite her asking him not to do so (id.). She stated that his continuous calls upset her because her answering machine was always full and she could not get messages she wanted to get (id.). She testified that she changed her telephone number because Petitioner would not stop calling her, but within three days, Petitioner obtained her telephone number (id. at 44). She stated she was unsure how Petitioner obtained her new number, and when she inquired of Petitioner, he told her that he could get information about anybody (id.). When asked what Petitioner said when he called her, Ms. Johnston responded that she often did not speak to him, but when she did, he begged her "not to do what she was doing" (id. at 45). She stated that she learned he was on parole after she told him not to call her anymore (id.). Ms. Johnston also testified that she and Petitioner began dating around Easter of 2000 (id.). She testified that Petitioner lived several hours away, but he visited her in Athens every other weekend, and when he did not visit, he called her and sent flowers and cards, which she did not find objectionable at that time (id.). Ms. Johnston acknowledged that she went to Destin, Florida, with Petitioner in June of 2000, and they stayed at a hotel on the beach (id.). She testified that when they planned the trip, she understood from Petitioner that they were going to stay in a hotel on the beach, but Petitioner's friend failed to obtain rooms on the beach, so she became upset and obtained herself a room on the beach (id.). She testified that she subsequently forgave him for this incident, and Petitioner visited her later in June (id.). Ms. Johnston testified that on one occasion in June, Petitioner came to Athens uninvited, which infuriated her, so she did not permit him to stay at her
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apartment (id.). She testified that around the beginning of July, their relationship changed (id.). She stated that Petitioner's phone calls were continuous, and even though he said he would not call as often, he kept on doing it, so she told him she "had enough" and "just leave me alone please" (id.). She stated she asked the manager of her apartment complex to intercept Petitioner if he attempted to visit her, and although she did not observe Petitioner at the complex after that, she was told that he had appeared there and called the management office numerous times (id. at 44­46). When asked if Petitioner ever accosted her, Ms. Johnston responded that he "never did anything like that," he just "drove [me] crazy on the telephone" (id. at 46). When asked whether it was true that between July 1­5, Petitioner visited her in Athens, and the two of them "were on good terms," Ms. Johnston responded that if Petitioner visited her in July, they "were not on good terms" (id. at 47). Ms Johnston testified that after she told Petitioner not to call her anymore, he came to Athens and went to her church, but she did not attend services that day (id. at 45). She testified that Petitioner called her after church and then wanted her to go to lunch with him (id. at 46). She stated that he "called and talked and talked and talked, hung up and then called back and filled the machine up" (id.). She testified there were messages recorded on her answering machine tape from his repeated phone calls, during which he asked her to pick up the phone and talk to him (id.). When asked if the gist of Petitioner's phone calls was to find out "what was going on" and persuade her to continue the relationship, Ms. Johnston responded "yes" (id.). She stated that even during their relationship she told him to quit calling her continuously, but it continued until she "had enough" (id.). Petitioner's counsel asked Ms. Johnston if she initiated calls to Petitioner, and counsel produced telephone records from Ms. Johnston's new telephone number, beginning on July 11, at the hearing (id. at 46, 49). Ms. Johnston admitted that she may have initiated calls to Petitioner, but stated the purpose of her calls was to tell Petitioner to quit calling her (id. at 46). Ms. Johnston described Petitioner as possessive and compulsive (id.). She stated that she did not request that the Georgia criminal charges against Petitioner for making harassing phone calls and stalking be dropped, but the prosecutor decided not to prosecute the charges so Petitioner could be returned to Florida (id. at 45).

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Petitioner's counsel then asked Ms. Johnston if she took any medication to treat depression (id. at 47). She responded that she did not, but she took medication for seizures (id.). When asked if she suffered from memory lapses, she responded by stating that she does not miss "blocks of time," but she may forget a period of fifteen seconds (id.). Petitioner's counsel asked her why she could not remember the July 4th weekend, and she responded that she "doesn't remember that far back" (id.) (Petitioner's final hearing was January 24, 2001, more than six months later). Petitioner's counsel also asked Ms. Johnston if she told Detective Cole that she went to Destin with a girlfriend, instead of Petitioner (id. at 47). Ms. Johnston responded that she told Detective Cole that "there was a girl involved" (id.). Detective Ivey testified that he met with Ms. Johnston on July 27, 2000, at her home (id. at 47). He testified that during that meeting, Ms. Johnston showed him her "caller ID," which showed calls beginning on July 22, 2000, a phone call on July 26, 2000, and several calls on July 27, 2000 (id. at 47­48). Detective Ivey also testified that Ms. Johnston's mother came to Ms. Johnston's house while he was there and gave him an answering machine tape (id. at 47). Ms. Johnston gave him items she had received from Petitioner since she told him not to contact her, including a box of flowers, letters, and packages (id. at 47­48). Detective Ivey testified that he did not recall that the nature of the letters or packages was threatening or intimidating, but they were harassing in nature because of the repeated contact (id. at 48). Detective Ivey's five-page police report was not admitted as evidence, but was included in Petitioner's parole record (Doc. 153 at 9; Doc. 129-2, Ex. K at 53­60).3 Detective Cole also testified at the revocation hearing. He testified that he began

investigating Ms. Johnston's complaint of harassing phone calls in July of 2000, and his investigation extended into August (id. at 48). He testified that Ms. Johnston told him that on July 5, she told Petitioner that she did not want to see him anymore, and on July 10, she changed her phone number because he continued to call her (id.). According to Petitioner's partial transcript of

The report included Detective Ivey's observations of dates, times, and telephone numbers of incoming calls o n Ms. Johnston's "caller ID," which included three calls from the 912 area code, one on July 22 and two on July 27 ( D o c . 129-2, Ex. K at 56). The report also included a transcript of taped messages on Ms. Johnston's answering machine fr o m a caller whom she identified as Petitioner (id. at 59­60).
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the final hearing, Detective Cole testified that Ms. Johnston's phone records "did not indicate specifically that Mr. Van Zant made those repeated calls" (see Doc. 12-1 at 34). The hearing examiner asked, "So you're saying that what you have could not specifically show that it was from Phillip Van Zant. That's what you said there?" (id. at 35), and Detective Cole responded, "That's right" (id.). Lafreda Baird, Ms. Johnston's mother, testified at the final hearing. She testified that she recalled seeing Petitioner at her daughter's apartment, but could not remember if it was the weekend of July 4 (Doc. 129-2, Ex. K at 48). She testified that Petitioner "could not accept no for an answer," and she told him that he needed to "get on with his life" and leave her daughter alone (id.). Petitioner testified on his own behalf. He presented the hearing examiner with a letter from Mr. Norman Haley, Petitioner's counsel during the preliminary parole proceedings, in which Mr. Haley stated that a person named "Kane" told him (Haley) that he saw Petitioner open Ms. Johnston's apartment door with a key on July 4, 2000, thus supporting Petitioner's contention that he was Ms. Johnston's houseguest that weekend (id. at 47). Petitioner admitted that he called Ms. Johnston on July 9 (the day he went to her church and then called her to invite her to lunch) (id. at 49). Petitioner submitted copies of two money orders he paid to Ms. Johnston, dated June 30, 2000, in the amount of $200.00 and July 17, 2000, in the amount of $100.00, which she cashed (id.). Petitioner testified that Ms. Johnston's telephone records showed no phone calls from his area code, but the records showed phone calls from her to him (id.). The hearing examiner noted that the telephone records began on July 11 and showed that Ms. Johnston called Petitioner's telephone number in Wray, Georgia, [phone], on July 18, July 19, and July 24, 2000 (Doc. 129-2, Ex. K at 49; Doc. 12-2 at 1­17). The hearing examiner also noted that there were a number of phone calls to Ms. Johnston's number from a calling number identified as all zeros (Doc. 129-2, Ex. K at 49; Doc. 12-2 at 1­17). Petitioner testified that he did not call Ms. Johnston with the intent to annoy or harass her, and he wished to take a polygraph examination to prove this (Doc. 129-2, Ex. K at 49). Petitioner pointed out the following areas in Ms. Johnston's testimony that showed she was prone to exaggeration: (1) at the preliminary hearing she testified that she lost a kidney and was in a coma for six months as a result of a horse riding accident, but her mother testified that she did not lose a

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kidney and she was in a coma for only a couple of days; and (2) Ms. Johnston told Detective Cole that she went to Destin with a girlfriend, when, in fact, she went with Petitioner (id.). At the request of Petitioner's counsel, the final hearing was reconvened five months later to enable Petitioner to take a polygraph examination and counsel to obtain copies of credit card records and checks from Ms. Johnston (Doc. 129-2, Ex. K at 50). At the continued hearing on July 28, 2001, Petitioner's counsel presented testimony from Arney Herrin, a polygraph examiner, although the parole record includes only a letter from Mr. Herrin to Petitioner's counsel describing the results of the examination, as well as a report of the results (id. at 63­65). According to the letter, Mr. Herrin asked Petitioner, "Did you lie about making harassing phone calls to Virginia Johnston on or about July 5?" (id. at 64). Petitioner answered "No" and told Herrin that during the time of July 5, he and Ms. Johnston were at the beach on vacation (id.). Petitioner told Mr. Herrin that after the vacation, he tried to call Ms. Johnston several times but not to harass her (id.). Mr. Herrin did not see any physiological indications of deception in Petitioner's answer to the question (id. at 63, 64). Mr. Herrin also asked Petitioner, "Did you even lie about telling Virginia Johnston that she ought to be dead or that you ought kill [sic] her?" (id. at 64). Petitioner apparently answered "No" (id.). Mr. Herrin did not see any physiological indications of deception in Petitioner's answer to the question (id. at 63, 64). The hearing examiner's summary included several documents submitted as exhibits at the final hearing. One document is an entry of nolle prosequi filed by the Athens-Clarke County prosecutor in the criminal case filed against Petitioner for stalking and making harassing phone calls (Doc. 129-2, Ex. K at 52). Additionally, Petitioner submitted affidavits from his mother and brother, which were also included as exhibits (see Doc. 129-2, Ex. K at 43; Doc. 12-1 at 12, 13). Petitioner's mother stated that Petitioner stayed with Ms. Johnston as her guest from July 1­5, 2000; that Petitioner lived with her (his mother) from July 9­27, 2000, and was at work every weekday and at home every night and weekend during that time; and that Ms. Johnston called her (Ms. Van Zant's) home on July 24 and asked her to tell Petitioner that she had called (Doc. 12-1 at 12). Petitioner's brother stated that he lived with his mother and Petitioner from July 9­27; that Petitioner was at work every day and at home every night and weekend during that time; and that on July 19, 2000,

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he answered the telephone, and Ms. Johnston asked to speak to Petitioner, so he summoned Petitioner to the phone (id. at 13). Additional exhibits included the following: (1) Certificate of Parole, (2) Parole Commission's Warrant, (3) Notice of Hearing, (4) a letter from Petitioner's counsel dated January 12, 2001, requesting that the final hearing be postponed, (5) checks requested from Ms. Johnston, (6) VISA records requested from Ms. Johnston, (7) copies of money orders to Ms. Johnston, and (8) a letter to Petitioner's counsel from Arney Herrin, the polygraph examiner, and written test results from the polygraph examination (see Doc. 129-2, Ex. K at 43). The hearing examiner's summary included several factual findings. The hearing examiner found that Petitioner made repeated telephone calls to Ms. Johnston with the intent to harass her (see Doc. 129-2-2, Ex. K at 50). In making this finding, the hearing examiner implicitly, if not explicitly, found Ms. Johnston's testimony credible that on or about July 4 or 5, she asked Petitioner to quit calling her, and he continued to call her, filling up her answering machine and causing her to change her telephone number (id.). The hearing examiner also found Detective Cole's testimony credible that Ms. Johnston told him that on July 5, she told Petitioner that their relationship was over, and she was forced to change her telephone number on July 10, 2000, due to the number of phone calls from Petitioner (id.). The hearing examiner implicitly discredited Petitioner's testimony that he did not call Ms. Johnston for the purpose of harassing her. The Parole Commission adopted these findings, including the hearing examiner's credibility determinations and findings of specific intent, thereby concluding that the findings were supported by competent, substantial evidence (see Doc. 19-1, Ex. A). Based upon these findings, the Parole Commission determined that the preponderance of the evidence showed that Petitioner violated Condition 7 of his parole, which required him to obey all laws, by unlawfully making harassing phone calls to Ms. Johnston (id.). Upon review of the Parole Commission's decision by the state court, the state court concluded that there was competent, substantial evidence to support the Parole Commission's decision (Doc. 12, Ex. C). In its written opinion, the state court made the following determinations: The attachments to Petitioner's complaint show that the Florida Parole Commission revoked Petitioner's parole for having failed to obey all laws, ordinances or statutory conditions by making harassing phone calls to a certain individual. Through a Parole
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Revocation Hearing, the Commission chose to revoke Petitioner's parole based on sworn testimony by the alleged harassed individual, as well as by considering testimony of a detective involved with the situation. Petitioner has failed to convince this Court that the Commission abused its discretion. (Doc. 19, Ex. C). The state court did not specifically cite to any United States Supreme Court case for the standard to be applied in resolving Petitioner's claim. However, a state court is not required to cite United States Supreme Court cases or even be aware of the cases, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002). Petitioner has not shown that the state court reached an opposite conclusion from the United States Supreme Court on a question of law. Furthermore, Petitioner has not identified any United States Supreme Court case with a set of materially indistinguishable facts that was decided differently from his case, nor is the court aware of any such case. Therefore, Petitioner has failed to show that the state court's decision was contrary to Supreme Court law. Additionally, Petitioner has failed to show that the state court's decision was based upon an unreasonable determination of the facts or constituted an unreasonable application of clearly established federal law. The hearing examiner found as fact that on or about July 5, 2000, Ms. Johnston told Petitioner not to call her. The evidence supporting this finding included sworn testimony from Ms. Johnston herself that "somewhere around" July 4 or 5 she asked Petitioner not to call her (see Doc. 129-2, Ex. K at 44). Petitioner contends that the following evidence impeached Ms. Johnston's credibility: (1) evidence that Petitioner was Ms. Johnston's houseguest from July 1­5, (2) Ms. Johnston's phone records showing that she called Petitioner on July 18, July 19, and July 24, which was after she told Petitioner not to call her, and (3) a copy of a money order showing that Ms. Johnston accepted $100.00 from Petitioner on July 25. Despite Petitioner's argument to the contrary, this evidence does not clearly refute Ms. Johnston's testimony that on July 5, the last day of Petitioner's visit, she told him not to call her anymore. Furthermore, during the hearing, the hearing examiner heard firsthand Ms. Johnston's testimony and was able to observe her demeanor while she testified, which enabled him to attach significance to her testimony based upon her perceived credibility. The hearing examiner apparently accorded weight to her testimony that on

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July 5, she told Petitioner not to call her anymore, despite evidence that Petitioner visited her during the July 4 weekend. As Petitioner has failed to present clear and convincing evidence to rebut the hearing examiner's assignment of credibility to Ms. Johnston's testimony or to rebut the examiner's factual finding that on or about July 5, Ms. Johnston asked Petitioner to stop calling her, this factual finding by the hearing examiner is presumed correct. The hearing examiner also found that Petitioner repeatedly called Ms. Johnston after July 5, 2000, the date she told him not to call her anymore. The evidence supporting this finding included Ms. Johnston's testimony that on July 5, she told Petitioner to leave her alone and stop calling her; that Petitioner continued calling her after that date; that she could hear Petitioner's voice when he left messages on her machine, but she did not answer the calls; that on July 9, Petitioner "called and talked and talked and talked, hung up and then called back and filled the machine up," and that on July 10, she changed her telephone number because Petitioner would not stop calling her. The hearing examiner apparently accorded credibility to this testimony. Furthermore, contrary to Petitioner's contention, this testimony was not refuted by Ms. Johnston's telephone records. Although her telephone records do not reflect repeated phone calls from Petitioner's home number (or any number in his 912 area code) to Ms. Johnston's new number for the period July 11­26 (the period reflected in the phone records), the phone records do not clearly refute Ms. Johnston's testimony that Petitioner made repeated calls to her old telephone number after July 5, the date she told him never to call her, and before she changed her phone number on July 10. Petitioner has failed to present clear and convincing evidence to rebut the hearing examiner's finding that Petitioner repeatedly called Ms. Johnston after July 5, 2000; therefore, this factual finding is presumed correct. The hearing examiner additionally found that Petitioner intentionally made harassing phone calls to Ms. Johnston. The evidence supporting this finding included Ms. Johnston's testimony that on July 5, she told Petitioner not to call her anymore, yet he continued to call her with such frequency that she changed her telephone number. Ms. Johnston additionally testified that after she changed her number, Petitioner called her on the new number, and when she asked him how he obtained her new number, he told her that a friend of his could get any information about anything. Ms. Johnston testified that even during their relationship, she told him that his continuously calling

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her annoyed her (see Doc. 129-2, Ex. K at 46). This testimony suggests that the purpose of Petitioner's repeated telephone calls to Ms. Johnston was to harass her, as it shows: (1) Petitioner knew that his continuous phone calls annoyed Ms. Johnston, (2) he continued to call her despite this knowledge, (3) he continued to call her with such frequency that she changed her phone number, and (4) he then obtained her new number from a third party and continued to call her. Petitioner argues that the following evidence shows that he did not intend to harass Ms. Johnston, rather, he called to inform her of an emergency, attempt to salvage their relationship, and find out "what was going on": (1) the transcript of Ms. Johnston's answering machine tapes, which shows that he left three messages requesting that she return his call on Monday at 9:33 p.m., 9:43 p.m., and 9:51 p.m., and that he called her collect four times from the county jail on Thursday, July 27 at 10:33 a.m., 10:40 a.m., 10:49 a.m. and 1:08 p.m. (see Doc. 129-2, Ex. K at 59­60; Doc. 149 at 11­12, 17), (2) Ms. Johnston's admission that the thrust of Petitioner's phone calls was to persuade her to continue the relationship (see Doc. 129-2, Ex. K at 46), and (3) the results of the polygraph examination, which showed that there were no indications of deception when Petitioner answered "No" to the question, "Did you lie about making harassing phone calls to Ms. Johnston on or about July 5th?" (see Doc. 149 at 17; Doc. 129-2, Ex. K at 63­65). Additionally, Petitioner apparently testified at the final hearing that he did not call Ms. Johnston with the intent to annoy or harass her (see Doc. 129-3, Ex. K at 49). The evidence identified by Petitioner does not clearly and convincingly refute the hearing examiner's finding that Petitioner intentionally made harassing phone calls to Ms. Johnston. Therefore, the hearing examiner's finding that Petitioner intended to harass Ms. Johnston is presumed correct. In light of the hearing examiner's findings and the record before the Parole Commission, there was sufficient evidence to support the parole revocation based upon Petitioner's failure to obey the law. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979) (on review of sufficiency of the evidence claim, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found evidence to support the charged violation under the applicable standard of proof). Therefore, Petitioner has failed to demonstrate that the state court's adjudication of his claim was contrary to

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or an unreasonable application of Supreme Court precedent, or that the decision was based upon an unreasonable determination of the facts in light of the evidence presented. Accordingly, he is not entitled to federal habeas relief on this claim B. Ground Two: "Denied Equal Protection of Law."

Petitioner contends other Georgia residents were protected from losing their liberty as a result of violating Georgia's harassing phone call statute, O.C.G.A. § 16-11-39, by the requirement that all essential elements of the statute be satisfied, but his liberty was taken without evidence that he called Ms. Johnston repeatedly for the purpose of harassing her. Petitioner contends this unequal application of the law violated the Equal Protection Clause (Doc. 1 at 6, 10; Doc. 12 at 17). The Parole Commission did not address whether Petitioner exhausted this claim in the state courts. The Commission contends Petitioner's constitutional claim is without merit because he failed to show he was similarly situated with other persons (see Doc. 129 at 19­20). Regardless of whether Petitioner exhausted this claim in the state courts, his claim is without merit. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."). "To establish an equal protection claim, a prisoner must demonstrate that (1) he is similarly situated to other prisoners who received more favorable treatment; and (2) the state engaged in invidious discrimination against him based on race, religion, national origin, or some other constitutionally protected basis." Sweet v. Secretary, Dept of Corrections, 467 F.3d 1311, 1318­19 (11th Cir. 2006) (citing Jones v. Ray, 279 F.3d 944, 946­47 (11th Cir. 2001) and Damiano v. Florida Parole and Prob. Comm'n, 785 F.2d 929, 932­33 (11th Cir. 1986)). In the instant case, the record demonstrates that Petitioner was not similarly situated with other residents of Georgia. Petitioner was on parole and was required to obey specific conditions that all other Georgia residents were not required to obey. As a consequence of being on parole, he was subject to losing his liberty if there was competent, substantial evidence that he violated any condition of his parole, including the condition that he not violate any law. Other Georgia residents were subject to losing their liberty only if there was evidence proving beyond a reasonable doubt that they violated the law. Petitioner has thus failed to show he was similarly situated to other Georgia

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residents. Additionally, Petitioner's contention in his reply brief that he was similarly situated with Jack F. Durie, Jr., the probationer in Durie v. State, 901 So. 2d 171 (Fla. 5th DCA 2005), is unconvincing. The evidence adduced at Mr. Durie's probation revocation hearing is not similar to the evidence adduced at Petitioner's parole revocation hearing.4 Furthermore, an essential element of a violation of the Florida harassing phone call statute under which Durie was charged was that conversation ensued, whereas an ensuing conversation was not an essential element of the Georgia harassing phone call statute. Therefore, Petitioner has failed to demonstrate that he was treated differently than other Florida parolees who were similarly situated. Furthermore, Petitioner does not allege that he was treated differently on account of invidious discrimination tied to a constitutionally protected interest such as race, religion, or national origin. See Snowden v. Hughes, 321 U.S. 1, 8, 64 S. Ct. 397, 88 L. Ed. 497 (1944) ("The unlawful administration . . . of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial

In Durie, the probationer was charged with violating his probation by violating Florida's harassing phone call s ta tu te , Florida Statutes § 365.16(1)(d), which provided that whoever "makes repeated telephone calls, during which c o n v e r s a tio n ensues, solely to harass any person at the called number" is guilty of a misdemeanor. See Fla. Stat. § 365.16(1)(d). The relevant facts are that Mr. Durie personally called Assistant Attorney General Angela M c C r a v y at h e r office and was told by her secretary that Ms. McCravy could not accept the call because Mr. Durie was represented b y counsel in the criminal matter in which Mr. Durie was involved at the time. 901 So. 2d at 173. M r . Durie s u b s e q u e n tly left three successive five-minute messages on W e d n e s d a y , August 29, 2001, at 1:43 p.m., 1:49 p.m., and 2 :0 8 p.m., on Ms. McCravy's voice mail. Id. From the transcripts of these calls, it was apparent that Mr. Durie called th r e e times, at least in part, because the automatic voice mail system disconnected the phone call after several minutes o f recording. Id. The messages consisted of legal arguments professing his innocence of a charge, punctuated by u n fla tte r in g words maligning Ms. McCravy's ethics and legal work. Id. Mr. Durie stated he intended to file a Florida B a r complaint and threatened that his case would come back to haunt Ms. McCravy for the rest of her life. Id. M s . M c C r a v y listened to the voice mail messages and reported them to the police. Id. The trial court dismissed Mr. Durie's a r g u m e n t that his intent was not solely to harass by pointing out that Mr. Durie, an attorney himself, knew that attorneys w e r e ethically prohibited from communicating about a client's case with persons represented by counsel without p e r m is s io n of that person's counsel. Id. at 176. The court then convicted Mr. Durie of violating the condition of his p r o b a tio n requiring to obey all laws, based upon his violation of the harassing phone call statute. Id. at 176­77. The appellate court determined that the trial court erred as a matter of law in misinterpreting the harassing phone c a ll statute as including a requirement that Durie show that his intent to persuade, instead of or in addition to his intent to harass, was legitimate. Id. at 177. Furthermore, the appellate opined that although there was little question Mr. Durie k n e w that the messages would upset and threaten Ms. McCravy, the messages contained extensive legal and rational d is c u s s io n in which Durie was trying to explain his view of the entire matter, which demonstrated that Durie was m o tiv a te d at least in part by a desire to convince M s . M c C r a v y that he had been unjustly convicted. Id. at 176. In light o f the trial court's misinterpretation of the law, as well as the evidence that at least part of Durie's intent was to persuade, th e r e was not competent, substantial evidence that supported a determination that Mr. Durie's intent was solely to harass. Id. at 174­75. The appellate court therefore reversed the order revoking Durie's probation. Id. at 177.
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of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination."); Sweet, 467 F.3d at 1319 (affirming dismissal of petitioner's equal protection claim because petitioner failed to establish that he was treated differently from similarly situated prisoners or that he was treated differently on account of invidious discrimination); see also Cruz v. Skelton, 543 F.2d 86, 92-93 (5th Cir. 1976) (affirming dismissal of prisoner's equal protection claim because there was no allegation of "`invidious discrimination' based on such considerations as race, religion, national origin, or poverty"). Accordingly, Petitioner has failed to demonstrate that the revocation of his parole violated the Equal Protection Clause. C. Ground Three: "Denied Due Process Right to Have Witnesses Subpoenaed in Violation of the 6th & 14th Amendment[s]." Petitioner states that before the preliminary and final revocation hearings, he requested that the following witnesses be subpoenaed to appear in his defense: (1) Dr. David Jarret, a psychiatrist, (2) Dr. Van Morris, a neurologist, (3) Mr. Larry Steyerman, (4) Mr. Kane, and (5) Mrs. Kane (Doc. 1 at 10­12). Petitioner states Dr. Jarret and Dr. Van Morris could have testified about Ms. Johnston's temporal lobe brain damage and her "mental diagnosis," which would have shed light on her propensity to fabricate and explain why she accused Petitioner of making harassing phone calls (id. at 11; Doc. 12 at 18­23; Doc. 149 at 26­27). Petitioner states Mr. Steyerman spoke to Ms. Johnston immediately before and after her discovery on July 26, 2000, that Petitioner was on parole and could have testified to Ms. Johnston's "hysterical reaction" to the news (Doc. 1 at 11; Doc. 149 at 27). Petitioner states this testimony would show Ms. Johnston's motivation for falsely accusing him of making harassing phone calls (Doc. 1 at 11; Doc. 149 at 27). Petitioner asserts that Mr. and Mrs. Kane would have verified that Petitioner was Ms. Johnston's house guest on July 5, 2000 (Doc. 1 at 11; Doc. 149 at 26­27). The Parole Commission did not address whether Petitioner exhausted this claim in the state courts. The Commission contends Petitioner's due process claim is without merit (see Doc. 129 at 20­22). The Supreme Court has held that the following minimum requirements of due process must be accorded to a parolee or probationer in a revocation proceeding:

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(a) written notice of the claimed violations of parole; (b) disclosure to the parolee 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. Morrissey v. Brewer, 408 U.S. 471, 488­89, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). "These requirements in themselves serve as substantial protection against ill-considered revocation." Gagnon v. Scarpelli, 411 U.S. 778, 787, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973). A revocation hearing does not "equate . . . to a criminal prosecution in any sense," thus, the parolee is not entitled to "the full panoply" of due process rights to which a criminal defendant is entitled. Morrissey, 408 U.S. at 489­90. The final revocation proceeding "is a narrow inquiry; 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. at 489. As Petitioner acknowledges, and as evidenced by the Notice of Rights at Final Revocation Hearing form signed by him on December 19, 2000, prior to the final revocation hearing, the hearing examiner, Mr. Willis, notified Petitioner of his rights, including the right to obtain witnesses to appear in his behalf and request that the Parole Commission issue subpoenas for the attendance of those witnesses (see Doc. 129-2, Ex. K at 39). In the space provided on the Notice of Rights at Final Revocation Hearing form for Petitioner to list witnesses he desired to be subpoenaed for his hearing, there is no mention of Dr. David Jarret, Dr. Van Morris, or Mr. Larry Steyerman (see id.); however, Petitioner's partial transcript of the pre-hearing meeting with Mr. Willis on December 19 shows that Petitioner requested that Dr. Jarret, Mr. Steyerman, and Mr. Kane be subpoenaed for the final hearing (see Doc. 149 at 24­25).5 It is undisputed that after the pre-hearing meeting, the Parole Commission appointed Attorney Replogle as counsel to represent Petitioner. Petitioner does not allege, nor is there any

According to the partial transcript, Petitioner also requested that the Parole Commission subpoena the attorney w h o represented him at the preliminary hearing, Mr. Norman Haley, as well as his mother and brother, Lena and Roy V a n Zant (see Doc. 12 at 20, Appendix at A53­55); however, none of these witnesses are the subject of Ground Three.
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indication in the record, that Attorney Replogle requested issuance of subpoenas for any of these witnesses, or that the Parole Commission in any way prevented Petitioner's counsel from presenting testimony of Dr. Jarret, Dr. Morris, Mr. Steyerman, Mr. Kane, Mrs. Kane, or any other witnesses. Indeed, the hearing examiner continued the hearing from January to June, at Attorney Replogle's request, to provide counsel additional time to collect and present additional evidence. There is no evidence that counsel sought issuance of subpoenas for these witnesses during the five-month continuance or that the Parole Commission denied any such request. Therefore, Petitioner has failed to demonstrate a violation of Morrissey. Furthermore, to the extent Petitioner contends the Parole Commission fa