of the identification; and that the hearsay contained in the police reports would be addressable at trial. The Magistrate Judge concluded that there would have been good cause for an exception to the need of confrontation and cross examination of witnesses.
Moreover, 28 C.F.R. § 2.50(c) provides that a parolee, at a local hearing, must make his request for witnesses known to the Commission. Form F-2 provides expressly for such a request which was not made in this case. Title 18 U.S.C. § 42.4(a)(2)(D), repealed, but still applicable to this case, provides for the confrontation of witnesses if the parolee, "so requests", unless the Commission specifically finds substantial reason for not allowing. There is an apparent reason for the regulation and the statute mandating that a parolee facing a revocation hearing request to confront witnesses in advance of the hearing. Allowing a parolee to wait until the conclusion of his hearing to request cross examination of witnesses would allow him to trump any hearing result.
Accordingly, at this juncture, we believe petitioner is estopped from exercising a right which he and counsel elected not to exercise before the hearing. We do not agree with the Magistrate Judge that petitioner's right to demand cross examination of adverse witnesses was not waived. Under the authority of Morrissey, supra, which details a parolee's rights at a revocation hearing, the right to confront and cross examine adverse witnesses is not absolute. 408 U.S. at 487.
Notwithstanding the issue of waiver, we feel that petitioner has not alleged any "actual prejudice" from the missed opportunity to cross examine adverse witnesses, as he must do to qualify for a new hearing. See Country v. Bartee, 808 F.2d 686, 687 (8th Cir. 1987). As we noted earlier, the Magistrate Judge found substantial evidence in the police report linking petitioner to the alleged violations. Nothing indicates that had he been able to confront witnesses, a different result would have occurred.
Accordingly, we will not adopt the Report and Recommendation of the Magistrate Judge and will close the case. An appropriate Order is attached.
AND NOW, this 31st day of March 1994, IT IS HEREBY ORDERED AS FOLLOWS:
1. The Report and Recommendation of the Magistrate Judge dated February 9, 1994 (Document 8) is not adopted;
2. The petition for writ of habeas corpus is denied;
3. Judgment is hereby entered in favor of the respondent and against the petitioner;
4. The Clerk of Court is directed to close this case and forward a copy of this Memorandum and Order to United States Magistrate Judge J. Andrew Smyser; and
5. Any appeal of this Order shall be deemed frivolous, without merit and lacking in good faith.
Edwin M. Kosik
United States District Judge