Bryant v. Wallace

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. 1 ) is DENIED.IT IS FURTHER ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that no certificate of appealability shall issue because Petitioner has failed to make a substantial showing that he has been denied a constitutional right. 28 U.S.C. § 2253. A separate Judgment shall accompany this Memorandum and Order.Signed by Magistrate Judge Shirley Padmore Mensah on 8/26/16. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JAMES BRYANT
Petitioner,
vs.
SCOTT LAWRENCE, 1
Respondent.

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Case No. 4:13-CV-917-SPM

MEMORANDUM AND ORDER
This case is before the undersigned on a petition for writ of habeas corpus under 28
U.S.C. § 2254, filed by Petitioner James Bryant. (Doc. 1). Petitioner is represented by counsel.
The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c)(1). (Doc. 14). For the reasons stated below, the petition will be
denied.
I.

FACTUAL AND PROCEDURAL BACKGROUND
On September 17, 1975, Petitioner was convicted of first-degree murder and sentenced to

life imprisonment. Resp’t Ex. A, Doc. 8-1, at p. 3. After two parole releases and two revocations,
Petitioner was again released on parole on March 3, 2005. Id. at p. 2. As a condition of release,
Petitioner agreed to numerous conditions, including obeying all federal and state laws and not
consuming intoxicating beverages. Resp’t Ex. C, Doc. 8-1, at p. 6.

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Since the filing of his petition, Petitioner has been transferred to Algoa Correctional Center,
where Scott Lawrence is the Warden. Scott Lawrence will therefore be substituted as the proper
respondent. See Rule 2(a), Rules Governing Section 2254 Cases in the United States District
Courts.
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On January 19, 2011, Sgt. Troy Thurman of the Cole County Sheriff’s Department
responded to a domestic disturbance call from Petitioner’s wife at the time, Joyce Bryant (“Mrs.
Bryant”). Pet’r Ex. A, Doc. 1-2, at p. 20. According to the police report, Mrs. Bryant called from
the neighbors’ house, where she was hiding from her spouse. Id. Mrs. Bryant told Sgt. Thurman
that she and Petitioner had been sitting in the living room drinking beer and talking. Id. At some
point, they began to disagree, and Petitioner jumped up and started choking her with both hands.
Id. at 20-21. Mrs. Bryant told Sgt. Thurman that she thought he was going to kill her, and then he
suddenly stopped. Id. at 21. She said she was afraid for her life and was scared of Petitioner. Id.
She said that she had called from the neighbors’ house because Petitioner had taken all the
phones in the house so that she could not call 911. Id. Sgt. Thurman observed that Mrs. Bryant
was visibly upset and crying. Id. He also saw that her eyes had what appeared to be petechial
hemorrhaging from being choked. Id. He saw that her left eye was swelling and turning black
and blue and looked like she had been struck (though she denied remembering being struck). Id.
The only marks present on her neck were what appeared to be fingernail scratches on one side.
Id. Sgt. Thurman went to Petitioner’s home and asked Petitioner what had happened, and
Petitioner told him nothing had happened. Id. Sgt. Thurman explained that because Petitioner did
not wish to explain what had happened, Sgt. Thurman was going to arrest him for domestic
assault 2nd based on what his wife had stated. Id. He arrested Petitioner. Id.
On January 24, 2011, as a result of Petitioner’s arrest and Sgt. Thurman’s report,
Missouri Board of Probation and Parole (“Board” or “Parole Board”) Officer Rhonda Muenks
issued a Field Violation Report for Petitioner. Pet’r. Ex. A-1. This report listed Petitioner’s
alleged parole violations: a violation of the condition that he would obey all federal and state
laws, and a violation of the condition that he would not consume any intoxicating beverages.

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Pet’r Ex. A-1, Doc. 1-2, at p. 1. The Field Violation Report described the January 19 incident in
some detail, including the alleged choking and the alleged alcohol consumption. Id. at pp. 1-3.
Officer Muenks recommended revocation because Petitioner had “engaged in actions that have
his wife fearing for her life.” Id. at p. 3.
On February 16, 2011, Petitioner signed a document stating that a preliminary hearing
would be held on February 17, 2011, that the purpose of the hearing was to determine whether
probable cause or reasonable grounds existed to refer Petitioner’s case to the Parole Board, and
that Petitioner was being charged with two violations: “Violation of Condition of #1-LAWS, by
being arrested on 1/19/11 in Cole County for the Class C Felony of Domestic Assault 2nd (case
number 11AC-CR00270),” and “Violation of Condition #10.1-SPECIAL CONDITIONS, by
allegedly consuming alcohol on 1/19/11.” Pet’r Ex. A-1, Doc. 1-2, at p. 6. Also on February 16,
2011, parole officers created a second Field Violation Report noting that a preliminary hearing
would be held on February 17, 2011, with the hearing officer being Sara Lemberger and the
witnesses (by speakerphone) to be Sgt. Thurman and Parole Officer Rhonda Muenks. Pet’r Ex.
A-2, Doc. 1-2, at pp. 4-5. It was noted that Petitioner had requested no witnesses. Id. This report
stated the conditions Petitioner was alleged to have violated and referred back to the January 24,
2011 Field Violation Report for additional details. Id.
The February 17, 2011 preliminary hearing is summarized in a third Field Violation
Report prepared the same day. Pet’r Ex. A-4, Doc. 1-2, at pp. 6-8. It was noted that Petitioner
had acknowledged receipt of the Field Violation Reports dated January 24 and February 16,
2011, and had received notice of the hearing. Id. In his briefing, Petitioner states that he received
“the field violation report” (it is unclear which one) only minutes before the hearing began.
Traverse, Doc. 12, at p. 6. Petitioner testified, and Sgt. Thurman participated by telephone. Pet’r

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Ex. A-3, Doc. 1-2, at pp. 7-8. Sgt. Thurman testified to the information in the police report and
also testified that he had detected a faint odor of intoxicants emanating from Petitioner (a detail
not in the police report). Id. at p. 8. Petitioner denied choking or striking Mrs. Bryant and denied
consuming intoxicants. Id. Petitioner testified that he and his wife had had a conversation about
Petitioner’s frustration with Mrs. Bryant’s lack of employment and the possibility that he was
“putting her out” of the house. Id. Petitioner also testified that as Mrs. Bryant was leaving, she
stated, “You will regret this.” Id. He further testified that Mrs. Bryant left the house for about 30
to 35 minutes before returning and asking if she could stay the night; this was several minutes
before officers knocked on the door and arrested him. Id. When provided with photos of Mrs.
Bryant depicting a black eye, Petitioner indicated that she must have injured herself during the
time she left the residence and then called law enforcement with the made-up story about an
assault. Id. Petitioner also pointed out that law enforcement had not administered a breathalyzer
to ascertain whether he had been drinking. Id. at p. 9. Upon questioning by Petitioner, Sgt.
Thurman testified that when they spoke, Petitioner’s speech was not slurred, his gait was not
staggered, and he was not behaving irrationally. Mem. Supp. Pet’n, Doc. 1-1, at p. 6. The
hearing officer found that there was probable cause to believe that the alleged violations had
occurred based on the offense report and the photos of the victim. Pet’r Ex. A-3, Doc. 1-2, at p.
9.
On March 31, 2011, Petitioner was advised that his revocation hearing would be held on
April 14, 2011. Resp’t Ex. E, Doc. 8-1, at p. 9. On April 14, 2011, a revocation hearing was held.
Resp’t Ex. D, Doc. 8-1, at p. 7. Mrs. Bryant was not produced as a witness, and Petitioner
indicates that the hearing officer commented that “the [Parole Board] had no subpoena power to
get her there.” Mem. Supp. Pet’n, Doc. 1-1, at p. 7; see also Pet’r Ex. A-11, Doc. 1-2, at p. 29.

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The record contains no additional details regarding her absence. Petitioner testified at the
hearing, as did Sgt. Thurman. Resp’t Ex. D, Doc. 8-1, at p. 7. On May 3, 2011, the Board issued
a notice stating that it found, by a preponderance of the credible evidence, that Petitioner had
knowingly violated Condition #1 of his parole conditions “in that on 1-19-2011 that Joyce
Bryant reported to Deputy Thurman of the Cole County Sherriff Department that you assaulted
her and caused physical injury. You were arrested and charged with Assault 1st degree and this
charge is still pending.” Id. It also stated that, independent of the preceding finding, “the Board
finds that you knowingly violated Condition #10 Alcohol, of the Conditions and Orders of
(Parole Release), in that on 1-19-2011 your wife reported to Deputy Thurman that you had been
drinking alcohol and Deputy Thurman testified at your revocation hearing that he smelled
alcohol on your person at the time of your arrest.” Id. The Board stated that it had decided to
revoke Petitioner’s parole release. Id.
On July 20, 2011, Petitioner appealed the Board’s decision. Pet’r Ex. A-7, Doc. 1-2, at
pp. 14-18. The appeal was apparently denied. On September 26, 2011, Mrs. Bryant informed
Petitioner’s attorney that she would no longer participate in the domestic assault trial and that if
she were forced to testify, she would only do so on his behalf. Pet’r Ex. A-8, Doc. 1-2, at p. 19.
On December 14, 2011, the domestic assault charges against Petitioner were dropped pursuant to
a nolle prosequi. Pet’r Ex. A-4, Doc. 1-2, at p. 10. On September 20, 2012, Mrs. Bryant, by then
divorced from Petitioner, wrote a letter to the Parole Board, explaining that her prior account had
been untrue and that Petitioner was innocent of the charges against him. Pet’r Ex. A-10, Doc. 12, at p. 26. Mrs. Bryant stated that if she had been notified of the revocation hearing, it would
have been clear that he was innocent of the charges. Id.

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Petitioner filed a petition for a writ of habeas corpus under Missouri Supreme Court Rule
91 in the Circuit Court of Mississippi County, Missouri, asserting that he was denied his right to
confront his accuser, as well as other claims. Pet’r Ex. A-11, Doc. 1-2, at pp. 27-34. The Circuit
Court denied the petition without explanation. Resp’t Ex. A-12, Doc. 1-2, at p. 36. The Missouri
Court of Appeals and the Supreme Court also denied the petition without explanation. Resp’t Ex.
B, Doc. 8-1, at p. 4.
On May 15, 2013, Petitioner filed the instant petition for a writ of habeas corpus.
Petitioner asserts two grounds for relief: (1) that his due process rights were violated because he
was denied the right to confront his chief accuser at his final revocation hearing, and (2) that his
due process rights were violated because he was not provided with adequate notice or evidence
before his preliminary hearing.
II.

LEGAL STANDARD
Federal habeas review exists only “as ‘a guard against extreme malfunctions in the state

criminal justice systems, not a substitute for ordinary error correction through appeal.’” Woods v.
Donald, 135 S. Ct. 1372, 1376 (2015) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86,
102-03 (2011)). Accordingly, “[i]n the habeas setting, a federal court is bound by AEDPA [the
Antiterrorism and Effective Death Penalty Act] to exercise only limited and deferential review of
underlying state court decisions.” Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003) (citing 28
U.S.C. § 2254). Under AEDPA, a federal court may not grant relief to a state prisoner with
respect to any claim that was adjudicated on the merits in the state court proceedings unless the
state court’s adjudication of a 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

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determination of the facts in light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d). A state court decision is “contrary to” clearly established Supreme Court
precedents “if the state court applies a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases” or “if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result
different from [the Supreme Court’s] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06
(2000); see also Brown v. Payton, 544 U.S. 133, 141 (2005). A state court decision involves an
“unreasonable application” of clearly established federal law if it “correctly identifies the
governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case.”
Williams, 529 U.S. at 407-08; see also Bell v. Cone, 535 U.S. 685, 694 (2002). “Finally, a state
court decision involves an unreasonable determination of the facts in light of the evidence
presented in the state court proceedings only if it is shown that the state court’s presumptively
correct factual findings do not enjoy support in the record.” Jones v. Luebbers, 359 F.3d 1005,
1011 (8th Cir. 2004) (citations and internal quotation marks omitted); see also Rice v. Collins,
546 U.S. 333, 338-39 (2006) (noting that state court factual findings are presumed correct unless
the habeas petitioner rebuts them through clear and convincing evidence) (citing 28 U.S.C.
§ 2254(e)(1)).
III.

DISCUSSION
A. Ground One: Violation of Due Process—Denial of Right to Confront and
Cross-Examine Adverse Witness at Revocation Hearing
Petitioner first argues that his right to due process was violated when he was not given

the opportunity to cross-examine Mrs. Bryant at his final revocation hearing. Petitioner raised
this claim in his state habeas petition, and it was summarily denied by the circuit court, the
Missouri Court of Appeals, and the Missouri Supreme Court. Although the state courts did not
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state their reasons for the denials, a state court’s summary decision is presumed to be on the
merits for purposes of habeas review. See Carter v. Bowersox, 265 F.3d 705, 712 (8th Cir. 2001).
Despite the summary nature of the state court’s decision, this Court still must apply the
deferential standards of 28 U.S.C. § 2254(d):
By its terms § 2254(d) bars relitigation of any claim “adjudicated on the merits”
in state court, subject only to the exceptions in §§ 2254(d)(1) and (2). There is no
text in the statute requiring a statement of reasons. The statute refers only to a
“decision,” which resulted from an “adjudication.” As every Court of Appeals to
consider the issue has recognized, determining whether a state court’s decision
resulted from an unreasonable legal or factual conclusion does not require that
there be an opinion from the state court explaining the state court’s reasoning.
See Harrington v. Richter, 131 S. Ct. 770, 784 (2011). See also Brown v. Luebbers, 371 F.3d
458, 462 (8th Cir. 2004) (en banc) (“[T]he ‘summary nature’ of the discussion of the federal
constitutional question [in the state court decision] does not preclude application of the AEDPA
standard.”).
The Supreme Court has noted that “revocation of parole is not part of a criminal
prosecution and thus the full panoply of rights due a defendant in such a proceeding does not
apply to parole revocations.” Morrissey v. Brewer, 408 U.S. 471, 480 (1972). However, in
Morrissey, the Supreme Court recognized that parolees have a right to some due process before
their parole is revoked. Id. at 481-486. It held that during a final revocation hearing, a parolee is
entitled to the following “minimum requirements of due process”:
(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.

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Id. at 488-89. The Supreme Court noted that “there is no thought to equate this [final] parole
revocation to a criminal prosecution in any sense. It 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.
At issue in Ground One of the petition is “(d) the right to confront and cross-examine
adverse witnesses (unless the hearing officer specifically finds good cause for not allowing
confrontation).” Petitioner argues that this right was violated because his primary accuser, Mrs.
Bryant, was not called as a witness at his final revocation hearing, and the Parole Board did not
give an explanation of why she was not called. Petitioner argues that because his wife’s account
of the alleged domestic assault and alleged drinking of alcohol was the primary basis of the
alleged violations, the Parole Board should have produced her to testify and be subject to crossexamination, instead of simply producing Sgt. Thurman to testify about what Mrs. Bryant had
told him. Petitioner also argues that had he been able to cross-examine Mrs. Bryant, he might
have undermined her story. To support that claim, Petitioner submits two letters Mrs. Bryant
wrote indicating that her story had been false—one written five months after the final revocation
hearing, and the second written a year after that.
The Court first considers whether Petitioner is entitled to relief under § 2254(d)(1), which
requires an analysis of whether the state court’s adjudication of this claim 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.” In Morrissey, the Supreme Court
provided that parolees generally have the right to confront and cross-examine adverse witnesses
absent a showing of good cause for not allowing confrontation, but it did not specify all of the
circumstances that would or would not constitute “good cause.” It also emphasized that the

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process should be “flexible enough to consider evidence . . . that would not be admissible in an
adversary criminal trial.” Morrissey, 408 U.S. at 489. The Supreme Court later emphasized that
it “did not in Morrissey intend to prohibit use where appropriate of the conventional substitutes
for live testimony, including affidavits, depositions, and documentary evidence.” Gagnon v.
Scarpelli, 411 U.S. 778, 782 n.5 (1973) (extending Morrissey’s due process protection to
probation revocation proceedings).
Applying Morrissey and Gagnon, the Eighth Circuit has found that the authority holding
the revocation hearing2 should balance the parolee’s need for confrontation against the
government’s reasons for not allowing confrontation, with the factors to be considered including
(1) the government’s explanation for why confrontation is undesirable or impractical, and the (2)
the reliability of the evidence which the government offers in place of live testimony. See United
States v. Martin, 382 F.3d 840, 844-45 (8th Cir. 2004); United States v. Bell, 785 F.2d 640, 64243 (8th Cir. 1986). The Eighth Circuit has found that “where the government demonstrates that
the burden of producing live testimony would be inordinate and offers in its place hearsay
evidence that is demonstrably reliable, it has made a strong showing of good cause. Where, on
the other hand, the government neither shows that presenting live testimony would be
unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the
probationer is entitled to confrontation.” Bell, 785 F.2d at 643. The failure of the hearing officer
or trial court to make explicit findings about why witnesses were not produced for confrontation
does not necessarily establish a Morrissey violation or require remand, if the record is sufficient
for the reviewing court to determine whether good cause was present. See id. at 643 n.3 (noting
that although “[t]he District Court did not make an explicit finding that there was good cause for
2

In many of the cases applying Morrissey, the revocation hearing at issue was held by the
federal district court rather than by a state parole board.
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dispensing with confrontation,” remand was not necessary because “the record is sufficiently
clear to enable us to review the District Court’s implicit findings”); United States v. Kelley, 446
F.3d 688, 693 (7th Cir. 2006) (noting that although “the district court ideally should have
explained on the record why the hearsay was reliable and why that reliability was substantial
enough to supply good cause for not producing the Pattersons as live witnesses,” the Seventh
Circuit “ha[s] not strictly required district courts to make explicit reliability and good cause
findings”).
Courts in the Eighth Circuit and elsewhere have frequently found that Morrissey’s right
to confrontation is not violated where the evidence admitted in place of live adverse witness
testimony bears substantial indicia of reliability, with or without a substantial reason offered for
why it would be difficult to produce the adverse witness. See Kelley, 446 F.3d at 689-90, 692-93
(no violation of Morrissey’s right to confrontation where the government’s only witness was an
officer who testified that the victims had reported to him that the parolee had punched them and
shown them a gun; reasoning that the officer’s testimony bore substantial indicia of reliability
because the officer’s personal observations of the victim’s injuries and the officer’s observation
of a gun in the trunk of the parolee’s car corroborated the victims’ accusations); Bell, 785 F.2d at
643-45 (no violation of Morrissey’s right to confrontation where police report of a driving-whileintoxicated offense was admitted without the testimony of the arresting officer; considerable
expense would have been involved in obtaining the officer’s testimony; and the probationer’s
admissions that he had been drinking and was driving at night without his lights on enhanced the
reliability of the report); United States v. Burkhalter, 588 F.2d 604, 607 (8th Cir. 1978) (no
violation of Morrissey’s right to confrontation where the court admitted the probationer’s
vocational instructor’s out-of-court statement that the probationer had been absent from classes;

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the evidence offered was demonstrably reliable because the instructor was familiar with the
defendant, because it was the instructor’s job to monitor the defendant’s behavior and school
attendance, and because the defendant’s own admissions tended to corroborate the out-of-court
statement); United States v. Pattman, 535 F.2d 1062, 1063-64 (8th Cir. 1976) (probationer’s due
process rights were not violated when information from a police report was admitted, without the
live testimony of the arresting officer, to show the fact that an arrest occurred, because the police
report was reliable evidence of the fact of arrest).
In light of the above cases, it was not unreasonable for the state court to find that there
was good cause for the Parole Board not to produce Mrs. Bryant as a witness and that therefore
Morrissey’s limited right to confront adverse witnesses was not violated. First, as Petitioner
points out, the hearing officer indicated that Mrs. Bryant was not within the Parole Board’s
subpoena power. Petitioner has provided no evidence or argument to refute this assertion, and it
was not an unreasonable consideration in determining whether to call her. Cf. Bell, 785 F.2d at
644 (considering whether officers were within subpoena power of the revoking court in assessing
whether there was good cause for not producing them). Second, even assuming that it would
have been possible and practical for the Parole Board to produce Mrs. Bryant as a witness, Sgt.
Thurman’s testimony bore sufficient indicia of reliability that admission of his testimony without
that of Mrs. Bryant was not unreasonable under the law as clearly established by the Supreme
Court. Although much of Sgt. Thurman’s testimony consisted of his hearsay account of what
Mrs. Bryant told him, that account was corroborated by his own personal observations. Mrs.
Bryant’s account of Petitioner choking her is corroborated by Sgt. Thurman’s observation of her
injuries, including petechial hemorrhaging in both of her eyes that he found consistent with
choking. Sgt. Thurman also observed Mrs. Bryant to be visibly crying and upset. Moreover, Mrs.

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Bryant’s statement that Petitioner was drinking alcohol is corroborated by Sgt. Thurman’s
testimony that he smelled a faint odor of alcohol on Petitioner, which indicated to him that
Petitioner had been drinking. The state court could reasonably have found that these facts, taken
together, established that Sgt. Thurman’s testimony was sufficiently reliable that there was good
cause for not producing Mrs. Bryant at the final revocation hearing under Morrissey.3
Petitioner asks the Court to follow Belk v. Purkett, in which the court granted habeas
relief based in part on its finding that the parolee should have been permitted to cross-examine
adverse witnesses against him instead of having those witnesses’ accounts presented only
through police reports and victim statements. 15 F.3d 803, 808-09, 812-14 (8th Cir. 1994).
However, Belk does not provide a basis for habeas relief in the instant case. First, because Belk
was decided before AEDPA was enacted, the Eighth Circuit in Belk was not evaluating whether
a state court’s decision denying the claim was contrary to, or represented an unreasonable
application of, clearly established law as determined by the Supreme Court. Instead, the Eighth
Circuit was simply applying Morrissey to the facts of the case before it. The Supreme Court has
made it clear that “circuit precedent does not constitute ‘clearly established Federal law, as
determined by the Supreme Court,’” under 28 U.S.C. § 2254(d)(1) and “therefore cannot form
the basis for habeas relief under AEDPA.” Parker v. Matthews, 132 S. Ct. 2148, 2155 (2012).
Thus, even if the state court decision in the instant case were inconsistent with the Eighth
Circuit’s holding in Belk, that would not be a basis for granting habeas relief unless the state
court decision was also an unreasonable application of Supreme Court law—which the Court has
3

Petitioner suggests at a few points in his brief that his rights may have been violated based on
the Board’s failure to produce Mrs. Bryant as a witness at the preliminary hearing. To the extent
that he is making such an argument, it is without merit. For a preliminary hearing, Morrissey
requires only that an adverse witness be made available for questioning “[o]n request of the
parolee.” 408 U.S. at 487. The undisputed evidence in the record shows that Petitioner requested
no witnesses at his preliminary hearing. Pet’r Ex. A-2, Doc. 1-2, at pp. 4-5.
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found it was not. Second, Belk is distinguishable on its facts, because the evidence offered in lieu
of live testimony in Belk bore no substantial indicia of reliability. In Belk, unlike the present
case, no testimony was offered at the hearing that corroborated the hearsay relied on; the parolee
was the sole witness at the hearing. 15 F.3d at 810. Moreover, in Belk, the writer of the report
relied on expressed doubt about the credibility of the victim’s account as described in the report,
stating, “There appears to arise out of this investigation, a considerable creditability (sic) issue
with both the victim and the perpetrator as to the authenticity of the information and the
character of both.” Id. These facts make Belk distinguishable from the instant case, in which the
hearsay relied on was corroborated by Sgt. Thurman’s personal observations of the victim’s
injuries and the odor emanating from Petitioner.
The Court next considers whether Petitioner is entitled to relief under 28 U.S.C.
§ 2254(d)(2), which requires a finding that the state court’s adjudication of his claim “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). Petitioner makes no specific
arguments regarding this prong, and the Court finds that he has not satisfied it. As discussed
above, the state court’s implicit finding that Sgt. Thurman’s testimony about Mrs. Bryant’s
account was sufficiently reliable that Mrs. Bryant did not have to be produced is supported by
the record, including Sgt. Thurman’s personal observations of Mrs. Bryant’s injuries and Sgt.
Thurman’s personal observations of Petitioner.
For all of the above reasons, the Court cannot say that the state court’s decision on
Petitioner’s claim was either contrary to, or an unreasonable application of federal law, as
established by the Supreme Court, nor can it say that it involved an unreasonable determination
of the facts presented to the state court. Therefore, Ground One must be denied.

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B. Ground Two: Failure to Disclose Evidence and Provide Adequate Notice
Prior to Preliminary Hearing
In Ground Two, Petitioner argues that the Parole Board violated his due process rights by
failing to provide him with adequate notice or evidence at, or prior to, his preliminary hearing.
Petitioner asserts that he raised this claim in the state habeas petition he filed in the Circuit Court
of Mississippi County. Pet’n, at pp. 6-7. Respondent appears to accept this assertion. See Resp.,
Doc. 8, at p. 5. However, the Court’s review of the record shows that the state habeas petition
does not include the claim in Ground Two. See Pet’r Ex. A-11, Doc. 1-2, at pp. 27-36. Thus,
arguably, Petitioner’s claim is procedurally defaulted based on Petitioner’s failure to present his
claims in state court, and should be denied on that basis.4 However, the Court need not address
the question of procedural default, because the Court finds that Ground Two fails on the merits.
Petitioner first argues that he was denied the right to “(b) disclosure [of] evidence against
him,” described in Morrissey, because he was not given sufficient information about the charges
against him prior to the preliminary hearing. See Mem. Supp. Pet’n, Doc. 1-1, at p. 14. However,
the disclosure-of-evidence requirement described in Morrissey applies only to final revocation
4

To preserve a claim for federal habeas review, a state prisoner must present that claim to the
state court and allow that court the opportunity to address the claim. Moore-El v. Luebbers, 446
F.3d 890, 896 (8th Cir. 2006) (citing Coleman v. Thompson, 501 U.S. 722, 731-32 (1991)).
“Where a petitioner fails to follow applicable state procedural rules, any claims not properly
raised before the state court are procedurally defaulted.” Id. In Missouri, the constitutionality of
parole revocation proceedings may be addressed through a state habeas petition under Missouri
Supreme Court Rule 91. See Green v. State, 494 S.W.2d 356, 357 (Mo. 1973); Aziz v. Johnson,
No. 4:09CV1054CAS/MLM, 2009 WL 6606933, at *5 (E.D. Mo. Nov. 24, 2009) (noting that a
state habeas petition under Rule 91 is a procedure by which the petitioner could have challenged
the revocation of his parole in state court to avoid procedural default), Report and
Recommendation adopted in Aziz v. Johnson, 2010 WL 2520649 (E.D. Mo. June 15, 2010). It
does not appear that Petitioner ever presented this claim in any state court proceeding.
The federal habeas court will consider a procedurally defaulted claim only “where the
petitioner can establish either cause for the default and actual prejudice, or that the default will
result in a fundamental miscarriage of justice.” Moore-El, 446 F.3d at 896 (citing Sawyer v.
Whitley, 505 U.S. 333, 338-39 (1992)). Petitioner offers no argument as to why the Court should
find cause for the failure to include this claim in the habeas petition.
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hearings. See Morrissey, 408 U.S. at 486-88. With respect to a preliminary hearing, Morrissey
requires only that “the parolee should be given notice that the hearing will take place and that its
purpose is to determine whether there is probable cause to believe he had committed a parole
violation,” and that “the notice should state what parole violations have been alleged.” Id. at 48687. Thus, Petitioner’s argument that he should have received police reports, witness statements,
or other evidence before the preliminary hearing is without merit. The only relevant question is
whether he received the notice that Morrissey requires for preliminary hearings.
The record is somewhat unclear regarding precisely what information Petitioner was
given prior to the preliminary hearing. However, even if the Court gives Petitioner every possible
benefit of the doubt and presumes that he did not receive any Field Violation Reports, police
reports, witness statements, or other evidence before the preliminary hearing, the record shows
that Morrissey’s requirements were satisfied. On February 16, 2011, Petitioner signed a notice
stating that a preliminary hearing would be held on February 17, 2011, that the purpose of the
hearing was to determine whether probable cause or reasonable grounds existed to refer
Petitioner’s case to the Missouri Board of Probation and Parole, and that Petitioner was being
charged with two violations: “Violation of Condition of #1-LAWS, by being arrested on 1/19/11
in Cole County for the Class C Felony of Domestic Assault 2nd (case number 11AC-CR00270),”
and “Violation of Condition #10.1-SPECIAL CONDITIONS, by allegedly consuming alcohol on
1/19/11.” Pet’r Ex. A-1, Doc. 1-2, at p. 6. That notice satisfies Morrissey’s requirements.
Moreover, statements in the January 24, 2011 Field Violation Report clearly show that Petitioner
had been confronted with, and had responded to, both alleged parole violations several weeks
before the preliminary hearing. That report describes the alleged assault on Mrs. Bryant and
states, “In response to the above violation, [Petitioner] stated that he did not hit [Mrs. Bryant].”

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Pet’r x. A-1, at p. 2. It also describes the allegation that Bryant had consumed alcohol on January
19, 2011, and states, “In response to the above violation, Bryant stated he had not consumed
alcohol but [Mrs. Bryant] had.” Id.
In light of the above, Petitioner’s suggestion that he was unable to prepare an adequate
response to the charges against him—for example, by arranging for the testimony of his sons to
say that he had not choked his wife and had not been drinking—is without merit. Petitioner may
not have had every detail of the accusations against him prior to the preliminary hearing, but he
knew well before the preliminary hearing that he was being charged with parole violations for
assaulting his wife and for drinking alcohol, and he knew when and for what purpose his
preliminary hearing was being held. That is all Morrissey requires.
The facts above also distinguish this case from Belk. In Belk, it appears that the parolee
was not given any notice of the alleged parole violations until a few minutes before the hearing,
and the court reasonably questioned how he could be expected to present a defense “when he
does not know with what, specifically, he has been charged.” 15 F.3d at 806. Here, Petitioner
knew well before the preliminary hearing that he was being charged with assaulting his wife and
drinking alcohol on January 19, 2011, and he could certainly have attempted to develop evidence
relevant to those charges prior to the preliminary hearing.
For all of the above reasons, Ground Two is without merit and must be denied.
IV.

CONCLUSION
For all of the above reasons, Petitioner is not entitled to federal habeas relief. Under 28

U.S.C. § 2253, an appeal may not be taken to the court of appeals from the final order in a 28
U.S.C. § 2254 proceeding unless a circuit judge or district judge issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A). To grant such a certificate, the judge must find that the

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petitioner “has made a substantial showing of the denial of a constitutional right.” Id.
§ 2253(c)(2); Tiedman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). “A substantial showing is a
showing that issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th Cir.
1997). The Court finds that reasonable jurists could not differ on Petitioner’s claim, so the Court
will not issue a certificate of appealability. Accordingly,
IT IS HEREBY ORDERED that Petitioner’s petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254 (Doc. 1) is DENIED.
IT IS FURTHER ORDERED that this case is DISMISSED.
IT IS FURTHER ORDERED that no certificate of appealability shall issue because
Petitioner has failed to make a substantial showing that he has been denied a constitutional right.
28 U.S.C. § 2253.
A separate Judgment shall accompany this Memorandum and Order.

SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of August, 2016.

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