The opinion of the court was delivered by: EDWIN M. KOSIK
The petitioner, a federal prisoner proceeding pro se and in forma pauperis, presently confined at the United States Penitentiary, Lewisburg, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 on November 1, 1993. In the petition, petitioner challenges the revocation of his parole by the United States Parole Commission (the "Commission") on or around June 10, 1993. The case was referred to United States Magistrate Judge J. Andrew Smyser.
On February 9, 1994, the Magistrate Judge issued a Report and Recommendation
finding that petitioner was not given sufficient opportunity to confront and cross-examine witnesses at the revocation hearing. At the hearing, the Commission relied solely on police reports and the admissions of petitioner for its determination to revoke parole and called no witnesses to testify.
The Magistrate Judge acknowledged that petitioner's counsel informed the Commission that he would not be subpoenaing any witnesses at the hearing, however he determined that this was not an intentional waiver on the part of petitioner of his right to cross-examine witnesses.
See Morrissey v. Brewer, 408 U.S. 471, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972). Accordingly, the Magistrate Judge recommended that:
1. the Parole Commission afford petitioner a new parole revocation hearing in compliance with Morrissey v. Brewer;
2. the parole commission file with the Court a notice of action in this case within 60 days from the date of the Court's Order;
4. if the Commission does not provide the petitioner with a new revocation hearing in compliance with Morrissey v. Brewer, the Commission remove the aggravated robbery, attempted robbery and theft violations from petitioner's parole violation record and reconsider the length of the petitioner's sentence.
On February 28, 1994, the respondent United States filed objections to the Report and Recommendation.
In the document, the Government provides further evidence via telephone slips, that petitioner, through appointed counsel, was provided ample opportunity to call witnesses, but voluntarily declined to do so.
When objections are filed to a Magistrate Judge's report, the court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636(b)(1)(C); see Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). In so doing, we may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C. § 636(b)(1); Local Rule 72.31. Although our review is de novo, we are permitted by statute to rely upon the Magistrate Judge's proposed findings and recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980) and Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
We find that the evidence of record supports the Government's argument that petitioner was provided an ample opportunity to call witnesses and to confront adverse witnesses, but voluntarily declined to do so, through his counsel and otherwise. At his preliminary interview conducted February 17, 1993, the petitioner filled out Parole Form F-2 indicating that he wished to proceed with the preliminary interview and that he did not request the presence of any adverse witnesses. At the conclusion of the preliminary interview, the probation office advised petitioner of the charges and found probable cause to believe that petitioner had committed the violations, except for the charge of burglary. Part II of Form F-2, which is required to be read and acknowledged, allowed petitioner to request a local revocation hearing. Part II provides in part, "In support of any request for a local revocation hearing, you should indicate any witnesses you plan to present at the revocation hearing and any adverse witnesses you wish to appear. Such adverse witnesses will be presented unless good cause is found to deny your request for their appearance." Petitioner did not request any adverse witnesses nor did he indicate he would present any witnesses of his own.
Prior to the revocation hearing petitioner had the benefit of counsel. Both requested a continuance of the hearing until June 1993 in order to present witnesses. On June 4, 1993, counsel wrote to the parole commission: "Pursuant to our conversation earlier today, this letter is to inform you of our request not to subpoena anyone to Mr. Ball's revocation hearing next week." The hearing was held on June 10, 1993, after which the examiners recommended finding that petitioner had violated the charges against him, except for the burglary charge. The decision was affirmed on appeal.
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 ...