KIMBERLIN v. DEWALT No. Civ.A. AW-97-3829.
12 F.Supp.2d 487 (1998)
Brett C. KIMBERLIN v. Stephen DEWALT, Warden FCI-Petersburg.
United States District Court, D. Maryland.
June 30, 1998.
Brett C. Kimberlin, pro se.
Lynn A. Battaglia, United States Attorney, Tamera L. Fine, Assistant United States Attorney, of Baltimore, MD, for Defendant.
WILLIAMS, District Judge.
On June 27, 1997 the United States Parole Commission revoked Brett C. Kimberlin's parole.
Standard for Review
On judicial review, a parole violator may not retry the evidence against him. Garcia v. Neagle, 660 F.2d at 988; 18 U.S.C. Section 4218(d). Judicial review is satisfied as long as "some evidence" exists to support the agency's revocation.
In order to prevail, petitioner must show that the Commission "exceeded its legal authority, acted unconstitutionally or failed to follow its own regulations" in revoking his parole. See Garcia v. Neagle, 660 F.2d 983, 988 (4th Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1023, 71 L.Ed.2d 309; see also Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) (habeas petitioner must show that detention is unlawful).
Petitioner's Criminal History
On June 11, 1980 petitioner was sentenced to four years following his conviction in the United States District Court for the Southern District of Texas for conspiracy to possess with intent to distribute marijuana.
On November 3, 1980 petitioner received a consecutive 12 year sentence following his conviction in the United States District Court for the Southern District of Indiana for possession and illegal use of Department of Defense insignia, illegal use of the Seal of the
On June 4, 1981 petitioner received a consecutive five year sentence following his conviction in the United States District Court for the Southern District of Indiana for receipt of explosives by a convicted felon.
On December 30, 1981 petitioner received a 50-year concurrent sentence from the United States District Court for the Southern District of Indiana for possession of an unregistered destructive device, unlawful manufacturing of a destructive device, malicious damage by means of explosives, and malicious damage by means of explosives involving personal injury. As set forth in his presentence report, during a six day period in September, 1978 eight bombs made of Tovex 200 dynamite were detonated in the Speedway, Indiana area.
Petitioner's History of Civil Litigation Arising Out of His Criminal Conduct
On October 23, 1983 a Marion County, Indiana jury awarded $360,000 to Sandra DeLong for her injuries, and $1,250,000 for the wrongful death of Carl DeLong. The Indiana Court of Appeals reversed the wrongful death judgment, holding that Carl DeLong's suicide was, as a matter of law, an intervening cause.
Sandra DeLong attempted to collect on her judgment by obtaining a writ of attachment against petitioner's prison commissary account after a United States Probation Officer informed her that petitioner regularly transferred money to someone outside the prison. Petitioner promptly sued Mrs. DeLong, her lawyer, the probation officer, and various Bureau of Prisons and Department of Justice officials for money damages. Petitioner's action was not successful. See Kimberlin v. U.S. Department of Justice, 788 F.2d 434 (7th Cir.1986).
In 1992 Sandra DeLong obtained a ruling from the United States Court of Appeals for the Seventh Circuit upholding the disbursement of money previously seized from petitioner by the FBI toward payment of her judgment.
Petitioner's Activities During Parole
On February 13, 1994 petitioner was released on supervised parole in this district.
Despite a healthy income, petitioner continued to resist paying the DeLong judgment, which had been reinstated on June 13, 1994. In a July 12, 1994 letter to Probation Officer Koehler, he threatened to go into bankruptcy if enforcement of the judgment was to occur, and claimed that he was personally judgment-proof, with his assets and income protected under "corporate veil." (See Paper No. 12, Exhibit E and Exhibits I and J). Petitioner then proceeded with further unsuccessful appellate litigation attempting to set aside the judgment.
During this time, publicity connected to the release of petitioner's book, Citizen K, generated the attention of staff of the United States Senate Judiciary Committee. On October 11, 1996 the Committee's chief investigator informed the Commission's general counsel that certiorari in the DeLong matter had been denied by Supreme Court the previous year. The Commission in turn requested the United States Probation Office in Baltimore to review petitioner's financial circumstances and to provide the Commission with an opinion as to the probable enforceability of a special condition of parole requiring petitioner to satisfy the judgment.
On February 10, 1997 the Commission imposed a special condition of parole ordering petitioner to "immediately undertake, in good faith and with all diligent effort, to pay the final civil judgment ..." in Kimberlin v. DeLong. Petitioner was further ordered to submit a payment plan for Commission approval and to take no measures to transfer or otherwise dispose of any assets owned or controlled by him without the permission of his probation officer. Because the Knopf payment was the only immediately available source of income or wealth, it was specifically identified, and petitioner was told to direct
Petitioner submitted objections and appealed the decision. On April 28, 1997 the Commission's National Appeal Board affirmed the decision to impose a special condition that petitioner pay the Indiana civil judgment.
Rather than comply with the special condition, petitioner submitted a directive permitting Knopf to "deposit any monies which would otherwise be due me personally from Knopf (Random House) with Sandra DeLong."
Despite these maneuvers, Mrs. DeLong on April 18, 1997 obtained an order from the Marion County, Indiana Superior Court garnishing the Knopf book money in order to satisfy a judgment which by then amounted to $1,610,000 plus interest and costs.
The Parole Revocation Proceeding
On March 25, 1997 the Commission issued a summons that was served on petitioner on April 10, 1997, requiring his presence at a preliminary interview. Petitioner was charged with (1) submitting a fraudulent loan application by making a false statement as to a material fact when he denied having an outstanding judgments against him; and (2) noncompliance with the special payment condition. On April 25, 1997 petitioner attended a preliminary interview by Probation Officer Catherine J. Kirby. At that hearing petitioner denied the charges, claimed poverty and said he was trying to settle the matter with Sandra DeLong.
On May 2, 1997 the Commission found probable cause on both charges and ordered a revocation hearing. In a letter to petitioner, the Commission outlined evidence it intended to consider at the hearing, including the recently commenced bankruptcy proceeding. The Commission permitted petitioner to remain on parole pending the hearing "to permit you to prepare for the hearing and to take the necessary steps to achieve full compliance with the special payment condition ..." The Commission informed petitioner that full compliance would require that he withdraw all legal obstacles created since February 10, 1997; obtain salaried gainful employment; submit a long-term payment plan to his probation officer; and ensure that his share of the book proceeds was delivered in full to Sandra DeLong prior to the revocation hearing. The Commission noted that it did not accept his claim of financial inability to hire counsel, based upon petitioner's hiring of private counsel engaged in New York and Indiana; his hiring of a personal assistant; his substantial material assets; and his partnership interest in LADA that had made the down payment and mortgage payments on petitioner's house.
On June 6, 1997 the revocation hearing was convened at the United States Courthouse in Baltimore. Petitioner's witnesses included his mother and a friend, Julia Karamin. Probation Officer Ramsburg testified for the Commission.
Officer Ramsburg testified concerning her interviews with mortgage loan officer Rood concerning petitioner's failure to list the Indiana civil judgment on his mortgage application. By her testimony, Rood initially disclaimed having any knowledge of the judgment at the time the loan was made. After being interviewed by Ramsburg, Rood sent letters and spoke with petitioner alleging that he had been told about a judgment that petitioner had said was void and unenforceable. Petitioner testified that he did not conceal the judgment and believed that it no longer valid, and presented a letter from an attorney to support that claim. The examiner found the lawyer's letter to petitioner did
Next, petitioner denied any attempt to avoid the special condition and offered to settle with Mrs. DeLong for $30,000. He further contested Officer Ramsburg's testimony concerning the sudden changes in his financial situation after the February 10, 1997 Notice of Action. The examiner found that petitioner used "deceitful maneuvers to hide his ability to pay" and that his "relatives and friends are obviously acting to help him by filing claims and liens to protect his money and property from being available to satisfy the victim's judgment." The examiner further found that the "evidence against [petitioner] was provided by the subject himself," and that at no time did petitioner "indicate any concern or empathy for the victim." Finally, the examiner found that petitioner's settlement offers were not undertaken in good faith; concluded that petitioner had resisted parole supervision by Officer Ramsburg "in every way he can," and recommended revocation of parole with a presumptive parole date of two years. Id., Exhibit W at 11-14 and Exhibit V at 15. Petitioner was taken into custody at the conclusion of the hearing.
On June 27, 1997 the Commission adopted the examiner's recommendation, revoking petitioner's parole and continuing him to a presumptive parole date of June 5, 1999.
Petitioner's administrative appeal, in which he raised substantially the same arguments raised in his federal habeas corpus petition, was denied by the Commission in a written decision on September 4, 1997. Id., Exhibit Y.
Analysis of Arguments Presented
Validity of the Indiana Civil Judgment
Petitioner first argues that parole revocation was improperly based upon his failure to pay a civil judgment which should be held void and unenforceable. Petitioner bases his claim upon the fact that the judge who presided over the jury trial that resulted in the judgment later was convicted of corruption.
Preliminarily, the Court notes that the judge in question was convicted not of soliciting bribes from parties in litigation, but of using a kick-back scheme involving judicial appointments and an insurance company.
In any event, the Commission itself is not obliged to entertain such an attempt to introduce and initiate a collateral attack upon a prior court judgment. See Argro v. United States, 505 F.2d 1374, 1376-77 (2d Cir.1974); Bloodgood v. Garraghty, 783 F.2d 470, 472 (4th Cir.1986) (legal sufficiency of prior conviction not subject to challenge at parole revocation proceeding); see also Garcia v. Neagle, 660 F.2d 983, 990 (4th Cir.1981) (where a prisoner had been held civilly liable for $600,000 in restitution, the Commission had sufficient evidence to support its evaluation of the gravity of petitioner's fraud offense).
Validity of the Commission's Imposition of a Special Condition
The Commission has broad authority to impose any condition of parole that is reasonably related to the nature and circumstances of the offense and the history and characteristics of the parolee. See 18 U.S.C. Section 4209(a)(1) and (2) (1976). The conditions may be modified at any time, and such modification may be made immediately effective "to prevent harm to the parolee or the public." Id., Section 4209(d)(1). A decision to impose a special condition of parole is committed to agency discretion, see 18 U.S.C. Section 4218(d) (1976), and must be upheld if the record reveals a "rational basis" to support it. See Bagley v. Harvey, 718 F.2d 921, 925 (9th Cir.1983).
Clearly a "rational basis" exists for requiring petitioner to pay a civil debt to his crime victim. Petitioner has a lengthy criminal history. Despite his high earnings, he failed to show any good faith by paying his crime victim.
At the time petitioner was paroled in February 1994, the Indiana civil judgment was on appeal
Petitioner's claim of denial of due process likewise fails.
Furthermore, nothing in the Commission's regulations requires notice and a hearing before a special parole condition can be imposed. Petitioner's attempt "to expand the due process safeguards inherent in revocation proceedings to supervisory proceedings" must fail. See United States ex rel. Vitoratos v. Campbell, 410 F.Supp. 1208, 1212 (N.D.Ohio 1976). Similarly, the Commission's regulations do not require special proceedings before a condition requiring a payment plan is imposed.
In 1994, petitioner gave the Commission written and oral evidence of his intent to make himself "judgment proof" so as to resist paying the judgment. For that reason, the Commission had a rational basis for ordering the special condition to take immediate effect.
Nor has the special condition deprived petitioner of equal protection of the law in relation to all other civil creditors. The Commission has a legitimate state interest in treating paroled convicts differently from other citizens, and the special condition was rationally related to such interest. See Moss v. Clark, 886 F.2d 686, 690 (4th Cir.1989) (relaxed standard of scrutiny applies to equal protection claims by prisoners).
Nor did the special condition violate petitioner's First Amendment rights, in violation of Simon & Schuster, Inc. v. NYS Crime Victims Board, 502 U.S. 105, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991). In that case, the Supreme Court held New York's "Son of Sam" law unconstitutional under the First Amendment, because it required that anyone who contracted with persons accused or convicted of a crime for the production of works describing the crime to pay all monies owed to the perpetrator to the crime victim instead. Here, the Commission, in an effort to further petitioner's rehabilitation and maintain public respect for the law, directed plaintiff to "immediately undertake, in good faith and with all diligent effort, to pay the final civil judgment ..." in favor of Mrs. DeLong. The book money was but one of several resources from which the judgment could have been paid. Thus Simon & Schuster, Inc. does not apply to the facts presented here.
Petitioner also argues that the Commission has applied a restitution law against him, even though the law did not take effect under after he committed the crime upon which the Indiana civil judgment is based. However, changes in the parole guidelines interpreting the statutory criteria for parole release, as well as interpretations of the Commission's supervision statute, are not considered ex post facto laws. See Franzese v. Clark, 732 F.Supp. 653, 654 (E.D.Va.1990) (retroactive application of revised parole guidelines does not offend the ex post facto clause). Further, the restitution statute, 18 U.S.C. Section 3681, has not been cited by the Commission as its authority for the special condition of parole.
Validity of the Parole revocation Hearing
Petitioner's allegations of due process violations in connection with the revocation hearing likewise provide no basis for habeas corpus relief. The Commission gave facially valid reasons for its decision to revoke petitioner's parole. Thus petitioner's claim that
Furthermore, the hearing officer at the revocation hearing was neither the parole officer who made a report of parole violation, nor the officer who recommended the commencement of parole revocation proceedings. Thus the hearing officer was sufficiently neutral and detached to conduct the hearing. See Morrissey v. Brewer, 408 U.S. 471, 486, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Petitioner claims the preliminary hearing officer and the final hearing examiner were biased and somehow acting upon instructions.
Petitioner's contention to the contrary, the Commission did not change the mortgage fraud allegation between the time of initial interview and the final decision. (See Paper No. 12, Exhibits T and X). Furthermore, case law and agency regulations do not require disclosure of evidence against a parolee within a certain deadline, but merely that the parolee be advised of the evidence against him.
At his preliminary hearing, petitioner had an opportunity to request any adverse witness he wished to appear at his final revocation hearing. Petitioner did not request any adverse witnesses.
The Validity of the Commission's Actions in Light of Petitioner's Bankruptcy Proceedings
Petitioner claims that parole revocation violates the automatic stay provisions of
Case law also holds that the automatic stay does not prevent parole revocation proceedings. See Birk v. Simmons, 108 B.R. 657, 659 (Bankr.S.D.Ill.1988) (automatic stay did not bar revocation hearing based on debtor's failure to pay restitution obligation imposed as a special condition of probation); Gilliam v. Metropolitan Government of Nashville, 67 B.R. 83, 87 (Bankr.M.D.Tenn.1986) (automatic stay did not bar revocation hearing based on debtor's failure to pay fine and court costs as special condition of probation); see also Hucke v. Oregon, 992 F.2d 950 (9th Cir.1993), cert. denied, 510 U.S. 862, 114 S.Ct. 178, 126 L.Ed.2d 137 (1993) (probation revocation hearing begun after filing of bankruptcy petition and based on debtor's attempt to discharge restitution payments did not violate automatic stay).
The revocation proceedings were based upon petitioner's lack of rehabilitation through his acceptance of responsibility for his crimes and sincere attempts to make amends to his victim. It was not undertaken solely as a collection action to benefit the DeLong family. Petitioner's reliance on the automatic stay as a ground for habeas corpus relief is misplaced.
Furthermore, it does not appear that there has been an actual settlement in the civil judgment obtained by Mrs. DeLong or that the bankruptcy proceedings have been concluded. In any event, such matters are between petitioner and other parties, not the Commission, and have little impact on the reasons for parole revocation proceedings that concluded prior to negotiation of such settlement.
Denial of Appointment of Counsel
Under 18 U.S.C. Section 4214 a parolee is to be appointed counsel if he is financially unable to retain counsel prior to revocation proceedings. The proper time for a parolee to apply for counsel is at the preliminary interview stage of proceedings. See 28 C.F.R. Section 2.48(b). At his preliminary interview, petitioner was given Form CJA-22 (for appointment of counsel), which he chose not to submit. Although he continued to request postponements from the Commission in order to apply for appointed counsel, he continued to submit the required application (or its functional equivalent). Given the evidence submitted by petitioner concerning monies obtained from LADA, his inheritance, and the book contract, as well as information that petitioner had hired attorneys in Maryland, Indiana and New York in the recent past, the Commission properly held that petitioner was not entitled to appointed counsel.
For all of the reasons set forth herein, the undersigned shall deny petitioner's habeas corpus petition, with prejudice, and direct the Clerk of Court to close this case.
In accordance with the foregoing Memorandum,
1. That this Order, together with the foregoing Memorandum,
2. That the Warden of FCI-Petersburg
3. That petitioner's petition for habeas corpus relief (Paper No. 1)
4. That petitioner's Traverse and Motion for Summary Judgment and Hearing (Paper No. 19)
5. That the Clerk of Court
6. That the Clerk of Court
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