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Revised November 2, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50019
Summary Calendar
ROBERT LEE JONES,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
For the Western District of Texas
October 31, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Robert Lee Jones, Texas prisoner # 647786, appeals the denial
of his 28 U.S.C. § 2254 petition. We affirm.
FACTS AND PROCEDURAL HISTORY
Jones received deferred adjudication and a six-year term of
probation, commencing on August 13, 1992, on two assault charges in
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Bexar County, Texas. In April 1996, while he was on probation,
Jones was arrested in Travis County for driving while intoxicated
("DWI"), for which offense he also received probation.
In April 1998, Bexar County moved to revoke Jones's probation
in both assault cases based on allegations that Jones had made
threats, had driven while his license was suspended, and had failed
to pay court-ordered costs. The motions to revoke were amended on
July 7, 1998, to allege, in addition to other charges, that Jones
had been arrested for DWI in April 1996 and that he had failed to
report that arrest.
At the time Jones was arrested for DWI, he was reporting to
the Bexar County probation office by mail, using a form which he
was required to complete and return each month. On the forms Jones
submitted to Bexar County for the months between April and November
1996, he failed to disclose his arrest and incorrectly stated that
he had not been arrested since his last report date. Jones's Bexar
County supervision was transferred to Travis County on November 1,
1996, and Jones began reporting to Travis County probation officer
Cynthia Rodriguez. Jones alleges that he told Rodriguez at their
first meeting about the DWI arrest. Respondent contends that Bexar
County did not learn of the DWI arrest until July 1, 1998.
On August 4, 1998, Jones pleaded true to the allegations in
the motions to revoke; his probation was revoked, guilt was
adjudicated, and he was sentenced to two years imprisonment in each
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case. Jones filed state habeas applications, asserting, inter
alia, that the two year delay in seeking revocation based on his
DWI arrest violated his due-process rights. The Texas Court of
Criminal Appeals denied the applications without written order.
Jones subsequently filed a 28 U.S.C. § 2254 petition, which
was denied by the district court. The district court granted Jones
a certificate of appealability ("COA") on the following issues: 1)
whether, under the circumstances of the instant case, the delay in
filing a probation-revocation charge against Jones based on his DWI
arrest violated his due process rights, and 2) whether the Travis
County probation officer supervising Jones's probation was an agent
for the Bexar County probation office for purposes of conveying
knowledge of his 1996 DWI conviction.
DISCUSSION
Jones argues that his due process rights were violated by
Bexar County's delay in seeking revocation based on the 1996 DWI
offense because the delay in seeking revocation, coupled with the
Travis County probation officer's knowledge of the violation, was
fundamentally unfair. The respondent counters that the delay in
initiating revocation proceedings on Jones's DWI arrest was not
fundamentally unfair because he concealed his arrest when he was
still under Bexar County supervision and because Bexar County did
not have actual knowledge of the violation until July 1998.
Because Jones's due process claim was adjudicated in state
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court on the merits, this court will not overturn the state court's
decision unless it was "contrary to" or was an "unreasonable
application of" clearly established federal law as determined by
the Supreme Court. See 28 U.S.C. § 2254(d)(1); Hill v. Johnson,
210 F.3d 481, 484-85 (5th Cir. 2000).
It is well established that due process must be afforded
probationers in connection with the revocation of probation.
Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Jones posits that
respondent's delay in moving for revocation of his probation was so
unreasonable as to violate his due process rights, citing United
States v. Tyler, 605 F.2d 851 (5th Cir. 1979).
In Tyler, a probationer was convicted of three misdemeanor
charges during the course of his probation. 605 F.2d at 852.
Although his probation officer was aware of these incidents, the
officer did not seek revocation until later, when marijuana was
seized from Tyler. Id. After the district court determined that
there was insufficient evidence that Tyler possessed marijuana, the
officer filed a second revocation petition. Id. This second
petition relied, for the first time, on the three misdemeanor
charges one of which the probation officer had known about for
over two years. Id. at 852-53 & n.3. This court concluded that
the second hearing violated Tyler's right to due process,
specifically holding that the two-year and three-month delay,
coupled with the probation officer's decision not to file the
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underlying charges in the first petition, was fundamentally unfair.
Id. at 853.
Jones's case is distinguishable from Tyler in three important
ways. First, Tyler noted that delay attributable to deception by
the probationer would not support a finding of due process
violation. Id.(citing United States v. Sciuto, 531 F.2d 842, 847
(7th Cir. 1976)). Jones's misrepresentations on Bexar County's
written reporting forms explains the first seven months of delay in
this case, for which respondent cannot be held accountable.
Second, the remaining delay of one year and eight months is
significantly shorter than the two-year and three-month delay in
Tyler. Id. Finally, Tyler's fundamental unfairness determination
was based in large part on the probation officer's failure to
include all known violations in the first motion to revoke, raising
them only after the outcome of the first proceeding failed to
satisfy him. Id. There is no comparable allegation against
Jones's probation officer, who added the DWI arrest to a pending
motion for revocation prior to its final adjudication.
Further, we have noted with approval the Eighth Circuit's
holding that an original decision not to issue a revocation warrant
in response to a probation violation may be reasonable and is not
made unreasonable by a reevaluation in light of additional
violations that the probationer later committed. Cortinas v.
United States Parole Comm'n, 938 F.2d 43, 45 (5th Cir. 1991)(citing
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White v. United States Parole Comm'n, 856 F.2d, 59, 61 (8th Cir.
1988)). Thus, even if we were to assume that Bexar County knew
about the DWI in November 1996 but had originally decided not to
revoke Jones's parole based on the DWI arrest, it would not be a
due process violation to partially rely on the DWI in a 1998 motion
for revocation based on his later violations.
Because we find that the revocation proceedings in this case
comport with due process requirements, it is not necessary to
consider the second COA issue concerning whether Travis County's
probation officer was an agent of Bexar County in the circumstances
of this case.
Based on the foregoing, we affirm the district court's denial
of Jones's § 2254 petition.
AFFIRMED.
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