Bertram v. Upton

Filing 26

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied. Signed by Judge Marcia A. Crone on 9/22/11. (mrp, )

UNITED STATES DISTRICT COURT

ERIC NELSON BERTRAM,
Petitioner,
versus
JODY R. UPTON,
Respondent.

EASTERN DISTRICT OF TEXAS

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CIVIL ACTION NO. 1:08-CV-222

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Eric Nelson Bertram, a federal prisoner confined in Beaumont, Texas,
proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
The court ordered that this matter be referred to the Honorable Keith F. Giblin, United
States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and
orders of this court. The magistrate judge has submitted a Report and Recommendation of United
States Magistrate Judge. The magistrate judge recommends denying the petition.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings, and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The court has conducted a de novo review of the objections in relation to the pleadings and
the applicable law. See FED . R. CIV . P. 72(b). Although the magistrate judge erroneously noted
that petitioner was convicted in the Southern District of Illinois, petitioner’s objections concerning
the substance of the Report and Recommendation are without merit.

Petitioner contends that he was denied counsel at his parole revocation hearing. A parolee
is generally not entitled to counsel at a revocation hearing, unless he makes a colorable claim that
he did not commit the alleged violation, there are substantial mitigating circumstances, or the
parolee appears unable to speak for himself effectively. Gagnon v. Scarpelli, 411 U.S. 778, 79091 (1973). Petitioner has not demonstrated that any circumstances existed that gave him a
constitutional right to counsel. Federal regulations allow parolees to representation by appointed
or retained counsel, but petitioner did not retain counsel or follow the procedures for appointment
of counsel. Petitioner waived counsel at his preliminary hearing. Although petitioner did not
waive counsel for the revocation hearing in writing, he did not request counsel, and he did not fill
out the necessary form for appointment of counsel. Petitioner also complains that he was not
present at the revocation hearing. Petitioner was not excluded from the hearing; he declined to
attend because he was not represented by counsel.
ORDER
Accordingly, petitioner’s objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct, and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in this case in accordance with the magistrate

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judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 22nd day of September, 2011.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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