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Seventh Circuit won’t disturb Wisconsin probation revocation on habeas review

Eric T. Alston v. Judy P. Smith, 7th Circuit Court of Appeals No. 16-1308, 2016 WL 6083982, 10/18/2016

Eric Alston was on probation when he came to the attention of Dane County’s “Special Investigation Unit,” a law enforcement initiative targeting “serious, assaultive offenders” that offered him resources aimed at preventing him from reoffending but “came with the admonition that any probation violation would result in the Department of Corrections vigorously seeking full revocation of probation.” (Slip op. at 2).

At some point, DOC determined that Alston had violated his probation and, as promised, sought revocation. The ALJ at his revocation hearing informed the parties that she had attended a presentation about the Special Investigation Unit given by law enforcement. Specifically, she said, she had been

told about the vast resources that were being provided to these folks that were at high risk, and that the program was intended as a last chance, and that violations should be treated as sort of a last straw. And in the case of supervision that it would be expected that they wouldn’t be given another chance. In other words, [they] would be revoked, and in the case of a criminal case they would be prosecuted. What I didn’t hear is that we’re expected, that they expected us to revoke people when the violations weren’t proven, so I think to that extent, I mean I don’t think at any point that they suggested that we revoke people that hadn’t done anything. So there’s part of my decision making that’s not relevant to what their program is about, part of it that I guess you could say is [relevant].

(Slip op. at 3).

Alston requested a different ALJ, but the request was denied and he was ultimately revoked. After exhausting his administrative appeal, he filed a certiorari petition in the circuit court. That court and the court of appeals rejected his claims that the ALJ’s appearance of bias violated his due process rights. Alston then filed a habeas petition in federal district court, lost, and appealed.

As with most state inmates seeking federal habeas relief, Alston faces a substantial obstacle is AEDPA review. He argues that the Wisconsin appellate decision meets each of the three enumerated criteria for relief, alleging that

(1) the Wisconsin Court of Appeals’ decision was contrary to established federal law governing his due process right to an impartial adjudicator; (2) the decision involved an unreasonable application of that body of law; and (3) the decision was based on an unreasonable determination of the relevant facts.

(Slip op. at 5).

The Seventh Circuit disagrees. As to the first, the court rejects Alston’s assertion that SCOTUS precedent requires a separate determination of bias as to the two separate issues at a revocation hearing: whether the probationer has violated and whether revocation is merited. Nor does the panel agree that the Wisconsin court improperly applied a subjective, rather than objective, test for the appearance of bias. (Slip op. at 7).

The court also rejects Alston’s claims that the state decision involved an unreasonable application of federal law or that it unreasonably determined the facts, essentially approving the Wisconsin court’s conclusions that the facts here simply do not give rise to an impermissible probability of bias. (Slip op. at 8-10).

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