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Curtis v. Chester

November 24, 2010

BRUCE A. CURTIS, PETITIONER-APPELLANT,
v.
CLAUDE CHESTER, WARDEN, USP-LEAVENWORTH; UNITED STATES PAROLE COMMISSION, RESPONDENTS-APPELLEES.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. No. 5:07-CV-03266-RDR).

The opinion of the court was delivered by: Tymkovich, Circuit Judge.

PUBLISH

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Bruce Alan Curtis, a federal prisoner proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2241 to challenge the United States Parole Commission's decision to revoke his parole and set an above-guidelines reconsideration date of 15 years.*fn1 He argues the parole board violated his Sixth Amendment right to confront adverse witnesses and also engaged in impermissible "double counting" to arrive at the reconsideration date. The district court found these claims to be groundless and denied his petition.

We have jurisdiction under 28 U.S.C. § 1291. After a careful review of the record, we agree Curtis's rights were not violated and therefore AFFIRM.

I. Background

Curtis was convicted in federal court of first degree felony murder in 1976 resulting from an attempted rape. He was given a life sentence but was eligible for parole. He was initially paroled in 1998 but was reincarcerated on at least two occasions after committing minor offenses. In 2002, Curtis was once again released on parole.

Weeks after his 2002 release, Curtis assaulted a female victim. The victim told police Curtis punched her in the face, attempted to rape her, and threatened to kill her. Curtis was charged with attempted forcible rape, attempted forcible sodomy, felony assaults, and threats. As part of a plea agreement, Curtis pleaded guilty to assault and the state dismissed the remaining charges with prejudice.

The United States Parole Commission found probable cause for revoking Curtis's parole. See 28 C.F.R. § 2.48. In making this determination, the parole board relied on the dismissed charges relating to attempted rape as well as the new assault conviction. During the revocation hearing, Curtis objected to both the presence of one adverse witness (the police officer who investigated the incident) and the absence of another adverse witness (the victim). The victim was not present, even though a subpoena had been issued, because she had moved without a forwarding address and none of the parties could locate her.

The board revoked Curtis's parole based on his assault conviction and its finding that Curtis had attempted to rape the victim. Furthermore, it found a pattern of dangerous and violent behavior that was not sufficiently reflected in Curtis's guidelines parole reconsideration date. The board therefore gave him an above-guidelines reconsideration date of 15 years.

II. Analysis

Curtis raises the following issues on appeal: (1) whether it was error for the parole board to rely on the dismissed attempted rape charge without allowing him to confront the victim; (2) whether the board engaged in impermissible "double counting" to arrive at its above-guidelines sentence; and (3) whether the district court erred in denying an evidentiary hearing and denying production of the revocation hearing audio tape.

A. Standard of Review

Our review of parole board decisions is ...


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