FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ANTONIO DEWAYNE HOOKS,
Petitioner - Appellant,
v. No. 19-6125 (D.C. No. 5:19-CV-00008-STE) SCOTT CROW, (W.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Oklahoma prisoner Antonio Hooks, proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition. We deny a COA and dismiss the appeal.
I
In 2012, Hooks pled guilty to a charge of attempted robbery with a dangerous
weapon. He was sentenced to twenty years’ imprisonment, with thirteen years
suspended. In 2017, the state moved to revoke Hooks’ suspended sentence on the
basis that he had committed ten new crimes after his release from imprisonment.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. These alleged crimes were charged in three separate state court cases, and
preliminary hearings were held for them in August 2017. At Hooks’ revocation
hearing, the state relied on transcripts of these preliminary hearings to show that
Hooks committed the new post-release crimes. The trial judge admitted the
transcripts, finding them admissible in lieu of live testimony because Hooks’
attorneys had had the opportunity to cross-examine the witnesses. Based on all the
evidence presented, the court found that the government had proved by a
preponderance of the evidence that Hooks had committed seven of the alleged
crimes, and it accordingly revoked his thirteen-year suspended sentence in full.
Hooks appealed to the Oklahoma Court of Criminal Appeals (“OCCA”). He
argued the revocation of his sentence did not meet the minimum requirements for due
process set forth in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), because it was
based entirely on hearsay evidence. The OCCA rejected this argument and affirmed
the revocation. Hooks then filed a petition for habeas relief in federal district court,
asserting the same Gagnon argument, as well as several new claims. Because the
district court determined that these new claims were not exhausted in state court, it
gave Hooks the opportunity either to dismiss his claims without prejudice or to
amend his petition to assert only the Gagnon claim.1 Hooks chose the latter
approach.
1 See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (“A habeas petitioner is generally required to exhaust state remedies.” (quotation omitted)). 2 After the state responded to his petition, Hooks filed several additional
pleadings alleging new state-law claims. The district court struck these pleadings
because the claims they presented were outside the province of federal habeas
review. Limiting its review to the Gagnon claim, the court denied Hooks’ petition
and, after a limited remand to address the issue, his request for a COA. Hooks now
seeks a COA from this court.
II
We may issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
Hooks must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). In other
words, Hooks must show that the district court’s dismissal of his habeas petition was
“debatable or wrong.” Id.
A
Hooks first argues that his revocation hearing failed to meet the minimum
requirements of due process under Gagnon and Morrissey v. Brewer, 408 U.S. 471,
489 (1972). In Gagnon, the Supreme Court held that at a minimum, a revocation
hearing must provide:
(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person
3 and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.
411 U.S. at 786 (quoting Morrissey, 408 U.S. at 489) (emphasis added).
Hooks’ Gagnon claim is based on the state court’s reliance on judicial
transcripts to revoke his suspended sentence. After recognizing that the traditional
rules of evidence do not apply in revocation proceedings, see Morrissey, 408 U.S. at
489, the district court determined that Hooks failed to provide any support for his
claim that the admission of the transcripts violated his due process rights. He fails to
do so again on appeal.
We may provide habeas relief from a state court’s evidentiary rulings only if
those rulings “rendered the [proceeding] so fundamentally unfair that a denial of
constitutional rights results.” Duckett v. Millin, 306 F.3d 982, 999 (10th Cir. 2002).
“Because the Sixth Amendment does not apply to revocation hearings,” United States
v. Jones, 818 F.3d 1091, 1098 (10th Cir. 2016), the right to confrontation in a
revocation hearing is evaluated under the constitutional minimum due process
standard recognized in Morrissey, 408 U.S. at 488-89. In Gagnon, the Supreme
Court explained the scope of this due process right: “While in some cases there is
simply no adequate alternative to live testimony, we emphasize that we did not in
Morrissey intend to prohibit use where appropriate of the conventional substitutes for
4 live testimony, including affidavits, depositions, and documentary evidence.” 411
U.S. at 782 n.5.
In this case, the trial judge conducting Hooks’ revocation hearing admitted
judicial transcripts because Hooks’ attorneys had a prior opportunity to cross-
examine the witnesses whose testimony appears in those transcripts. In his
application for a COA, Hooks does not appear to take issue with the decision to
admit the transcripts. Instead, he attacks the underlying testimony they report,
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 6, 2020 _________________________________ Christopher M. Wolpert Clerk of Court ANTONIO DEWAYNE HOOKS,
Petitioner - Appellant,
v. No. 19-6125 (D.C. No. 5:19-CV-00008-STE) SCOTT CROW, (W.D. Okla.)
Respondent - Appellee. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________
Before LUCERO, PHILLIPS, and EID, Circuit Judges. _________________________________
Oklahoma prisoner Antonio Hooks, proceeding pro se, seeks a certificate of
appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition. We deny a COA and dismiss the appeal.
I
In 2012, Hooks pled guilty to a charge of attempted robbery with a dangerous
weapon. He was sentenced to twenty years’ imprisonment, with thirteen years
suspended. In 2017, the state moved to revoke Hooks’ suspended sentence on the
basis that he had committed ten new crimes after his release from imprisonment.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. These alleged crimes were charged in three separate state court cases, and
preliminary hearings were held for them in August 2017. At Hooks’ revocation
hearing, the state relied on transcripts of these preliminary hearings to show that
Hooks committed the new post-release crimes. The trial judge admitted the
transcripts, finding them admissible in lieu of live testimony because Hooks’
attorneys had had the opportunity to cross-examine the witnesses. Based on all the
evidence presented, the court found that the government had proved by a
preponderance of the evidence that Hooks had committed seven of the alleged
crimes, and it accordingly revoked his thirteen-year suspended sentence in full.
Hooks appealed to the Oklahoma Court of Criminal Appeals (“OCCA”). He
argued the revocation of his sentence did not meet the minimum requirements for due
process set forth in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), because it was
based entirely on hearsay evidence. The OCCA rejected this argument and affirmed
the revocation. Hooks then filed a petition for habeas relief in federal district court,
asserting the same Gagnon argument, as well as several new claims. Because the
district court determined that these new claims were not exhausted in state court, it
gave Hooks the opportunity either to dismiss his claims without prejudice or to
amend his petition to assert only the Gagnon claim.1 Hooks chose the latter
approach.
1 See Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002) (“A habeas petitioner is generally required to exhaust state remedies.” (quotation omitted)). 2 After the state responded to his petition, Hooks filed several additional
pleadings alleging new state-law claims. The district court struck these pleadings
because the claims they presented were outside the province of federal habeas
review. Limiting its review to the Gagnon claim, the court denied Hooks’ petition
and, after a limited remand to address the issue, his request for a COA. Hooks now
seeks a COA from this court.
II
We may issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,
Hooks must demonstrate “that reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). In other
words, Hooks must show that the district court’s dismissal of his habeas petition was
“debatable or wrong.” Id.
A
Hooks first argues that his revocation hearing failed to meet the minimum
requirements of due process under Gagnon and Morrissey v. Brewer, 408 U.S. 471,
489 (1972). In Gagnon, the Supreme Court held that at a minimum, a revocation
hearing must provide:
(a) written notice of the claimed violations of (probation or) parole; (b) disclosure to the (probationer or) parolee of evidence against him; (c) opportunity to be heard in person
3 and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking (probation or) parole.
411 U.S. at 786 (quoting Morrissey, 408 U.S. at 489) (emphasis added).
Hooks’ Gagnon claim is based on the state court’s reliance on judicial
transcripts to revoke his suspended sentence. After recognizing that the traditional
rules of evidence do not apply in revocation proceedings, see Morrissey, 408 U.S. at
489, the district court determined that Hooks failed to provide any support for his
claim that the admission of the transcripts violated his due process rights. He fails to
do so again on appeal.
We may provide habeas relief from a state court’s evidentiary rulings only if
those rulings “rendered the [proceeding] so fundamentally unfair that a denial of
constitutional rights results.” Duckett v. Millin, 306 F.3d 982, 999 (10th Cir. 2002).
“Because the Sixth Amendment does not apply to revocation hearings,” United States
v. Jones, 818 F.3d 1091, 1098 (10th Cir. 2016), the right to confrontation in a
revocation hearing is evaluated under the constitutional minimum due process
standard recognized in Morrissey, 408 U.S. at 488-89. In Gagnon, the Supreme
Court explained the scope of this due process right: “While in some cases there is
simply no adequate alternative to live testimony, we emphasize that we did not in
Morrissey intend to prohibit use where appropriate of the conventional substitutes for
4 live testimony, including affidavits, depositions, and documentary evidence.” 411
U.S. at 782 n.5.
In this case, the trial judge conducting Hooks’ revocation hearing admitted
judicial transcripts because Hooks’ attorneys had a prior opportunity to cross-
examine the witnesses whose testimony appears in those transcripts. In his
application for a COA, Hooks does not appear to take issue with the decision to
admit the transcripts. Instead, he attacks the underlying testimony they report,
arguing that issues with the testimony “should have been an issue at [the] preliminary
hearing,” and that other evidence should have been considered or given more weight.
In essence, Hooks attempts to bring a sufficiency-of-the evidence challenge.
But he dismissed this claim when given the option to proceed only on his Gagnon
claim. He does not challenge the district court’s determination that his sufficiency-
of-the-evidence challenge was not exhausted, and he otherwise does not argue that
the trial judge violated Gagnon by relying on judicial transcripts. Accordingly,
Hooks has not shown he is entitled to a COA on his Gagnon claim.
B
Hooks’ remaining claims are also meritless. He reasserts the challenges to the
timing of his revocation proceedings rejected by the district court because they arise
under Oklahoma law and are therefore not cognizable on federal habeas review.
Because the Supreme Court has repeatedly emphasized that federal habeas review is
limited to federal-law questions, see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68
(1991), no reasonable jurist could disagree with this conclusion.
5 Finally, Hooks appears to assert a new claim that the state had a conflict of
interest in his revocation proceeding because the assistant district attorney who
participated in that proceeding also made appearances in some of the state’s other
cases against him. We will not consider this new claim, raised for the first time in
Hooks’ application for a COA. See United States v. Perez, 955 F.2d 34, 36 (10th Cir.
1992). Even if we were to address it, Hooks does not explain how the state
attorney’s appearance raises a conflict of interest or how that appearance violated his
constitutional rights. Although we liberally construe a pro se litigant’s filings, see
Erickson v. Pardus, 551 U.S. 89, 94 (2007), we will not “fashion . . . arguments for
him,” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994).
III
For the foregoing reasons, we DENY a COA and DISMISS the appeal.
Hooks’ motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero Circuit Judge