The opinion of the court was delivered by: DuBOIS, J.
Petitioner, David Calhoun, filed a petition for writ of habeas corpus on March 17, 2009 in the United States District Court for the Northern District of Ohio. The matter was transferred to this Court by order dated April 21, 2009. Thereafter, this Court granted Calhoun's motion to submit a modified petition and, on September 25, 2009, Calhoun filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("the Petition"). United States Magistrate Judge Lynne A. Sitarskisubmitted to the Court a Report and Recommendation dated March 23, 2010 ("R & R") in which she recommended that the Petition be dismissed. Calhoun filed Objections to Magistrate's Report and Recommendation on April 21, 2010 and Respondents filed a Brief in Opposition to Petitioner's Objections to Report and Recommendation on May 4, 2010.
After reviewing the R & R, Calhouns's Objections, the government's Opposition and the documents referenced in those submissions, the Court rules as follows: the analysis of the R & R that relates to Calhoun's Equal Protection Clause claims, his Confrontation Clause claims, and the claims that his Due Process rights were violated when the Pennsylvania Board of Probation and Parole ("the Board") exceeded its jurisdiction and when the burden of proof was shifted to him at his parole revocation hearing, is approved and adopted. The recommendation that these claims be denied is modified to provide that these claims are denied and dismissed and, as modified, is approved and adopted. Calhoun's Objections covering these claims are overruled. The parts of Calhoun's Objections arguing that his Due Process rights were violated when the Magistrate Judge denied his motion to strike the Declaration of Cynthia Daub are overruled.
The analysis of the R & R relating to Calhoun's claim that his Due Process rights were violated by the lack of evidence to support the revocation of his parole by the Board and by the Commonwealth Court's ruling affirming that decision is rejected. The Court concludes, for different reasons than those in the R & R, that these claims are without merit. After independent review of these claims, applying the deferential standard of review required by the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the claim that petitioner's Due Process rights were violated by the revocation of his parole based on insufficient evidence is denied and dismissed for the reasons set forth below. Calhoun's objections on these issues are overruled as moot.
A. Calhoun's Underlying State Conviction and Parole Violation
On June 11, 2002, following his conviction on two counts of possession of a controlled substance with intent to deliver, Calhoun was sentenced to a term of three to six years imprisonment by the Honorable Carolyn Temin, a judge of the Court of Common Pleas of Philadelphia County. His term of imprisonment was calculated to end, at the earliest, on February 23, 2003 or, at the latest, on February 23, 2006. On August 11, 2003, the Board granted Calhoun parole. He was released from state custody on September 3, 2003.
On June 29, 2005*fn2, a federal grand jury returned an indictment charging that "[f]rom at least in or about July 2004 through on or about February 3, 2005" Calhoun conspired to knowingly and intentionally distribute, and possess with intent to distribute, more than five kilograms of cocaine. See Indictment at 1, United States v. Esteve et al., No. 05-363-MK-6 (E.D. Pa. June 29, 2005), ECF No. 1. That same indictment also charged that "on or about January 2, 2005 " Calhoun knowingly and intentionally possessed with intent to distribute approximately 1,240 grams of a mixture or substance containing a detectable amount of cocaine. See id. at 23. Calhoun was found guilty of these crimes by a jury on April 21, 2006. See United States v. Esteve et al., No. 05-363-MK-6 (E.D. Pa. June 29, 2005), ECF No.265.
Following his conviction, the Board held a hearing on November 16, 2006 in which it considered whether to revoke Calhoun's parole. (See Transcript of Hearing, Parole No. 235-CC (Pa. Bd. of Prob. and Parole Nov. 16, 2006).) ("Tr.") Calhoun appeared pro se, with standby counsel from the Clearfield County Public Defender's Office. The only evidence presented at the hearing to support the claim that Calhoun violated his probation was a certified copy of the federal criminal docket in the case in which Calhoun was convicted. (See Tr. 5-7). Based on this evidence, the Board determined that Calhoun was indicted on June 25, 2005 and convicted on April 21, 2006. The Board never found that Calhoun committed his crimes at a specific time. When Calhoun noted this problem at the hearing, Board Member Matthew Mangino stated that he should have raised this objection during the "evidentiary phase" of the proceeding and not at the "dispositional phase." (Tr.12.) Calhoun then consulted with his attorney and explained,
Okay. Well, yes. I just wanted to preserve that I mentioned before about the there was no evidence presented that I actually was convicted for activities resulting from time when I was on parole. That's fine. We can move on then. (Tr. 14.) Cindy Johnson, the Hearing Examiner, then noted for the record - during the "dispositional phase" of the proceeding - that Calhoun was arrested on June 29, 2005. (Tr. 14.) Calhoun responded, "Yes. That is -- right. That's the arrest date. But the -- yes, but that doesn't say when the actual activities of the crime were committed." (Tr. 14.) The transcript of the hearing shows that, although Calhoun did not object to the introduction or accuracy of the certified federal docket, he did object to the sufficiency of that evidence to support a finding that he violated his parole.
The Board found that Calhoun violated his parole and, in a notice mailed on January 8, 2007, stated that it was recommitting Calhoun as a convicted parole violator to serve thirty-six months of backtime.*fn3 It is that ruling that is at issue in this case.
Calhoun filed a petition to review the Board's decision in the Commonwealth Court of Pennsylvania. While his petition was pending, he filed a Motion to Exclude as Evidence the federal indictment filed on June 29, 2005 in the Eastern District of Pennsylvania. In a lengthy footnote, the Commonwealth Court explained its denial of the motion:
The Board filed an Answer to the Motion on April 30, 2007 pointing out that the September 15, 2005 Detention Hearing Report shows that the Hearing Examiner relied in part on the Indictment, that Calhoun did not object at the November 16, 2006 revocation hearing to the admission of a certified copy of the criminal docket indicating that he was convicted of conspiracy to distribute cocaine; that the Board relied on the certified copy of the criminal docket and Calhoun's acknowledgment of his federal conviction; that the Indictment admitted during the detention hearing is part of the proceeding as contemplated by Scott v. Pennsylvania Board of Probation and Parole, 498 A.2d 31 (Pa. Cmwlth. 1985); and that hearsay evidence is admissible in a first level probable cause hearing such as the ...