* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 96-40809

Summary Calendar

 

WILLIAM HARRIS PALMER,

Petitioner - Appellant

v.

GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, INSTITUTIONAL DIVISION

Respondent - Appellee

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:95-CV-859)

______________________________________________________

October 8, 1997

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

William Harris Palmer, a Texas prisoner (#410634), appeals

the district court’s order denying his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons that

follow, we affirm the judgment of the district court.

I. BACKGROUND
2

A jury convicted Palmer of sexual assault and sentenced him

to twenty years of imprisonment and a $10,000 fine. The Texas

Eleventh District Court of Appeals affirmed his conviction. The

Texas Court of Criminal Appeals denied Palmer’s petition for

discretionary review.

Palmer was released on parole on March 2, 1992. Just over

one year later, while still on parole, Palmer was charged with

aggravated assault for allegedly injuring Terry M. Strout with a

knife. Although the case against Palmer was later dismissed

because Strout could not be located to testify, Palmer was

arrested and charged with violating Rule 2 and Rule 5 of his

parole. Rule 2 requires the parolee to “[o]bey all municipal,

county, state and federal laws,” and Rule 5 prohibits the parolee

from, inter alia, “us[ing], attempt[ing] or threaten[ing] to use

any tool, implement or object to cause or threaten to cause any

bodily injury.”

Palmer signed a document acknowledging his rights in the

parole revocation process and requesting a preliminary hearing. 

A preliminary hearing was held on September 1, 1993, to determine

whether adequate grounds existed to find that Palmer violated the

conditions of his release. The report of the preliminary hearing

stated that Palmer was read his rights and voiced an

understanding of those rights. The report also noted that the

felony charge of aggravated assault had been dismissed because

the district attorney’s office could not locate Strout, who also
3

was in violation of his parole. Nevertheless, based on the

complaint filed by Strout and on Palmer’s testimony that he

slapped Strout during a verbal altercation, the hearing officer

determined that there was probable cause to believe that Palmer

had violated Rules 2 and 5 of his parole. According to the

complaint, Palmer intentionally and knowingly injured Strout by

using a knife. The officer acknowledged that Palmer denied

pulling a knife.

Palmer requested a revocation hearing, which was held on

October 12, 1993. Again, Palmer was read his rights and voiced

his understanding of those rights. Palmer waived his right to be

represented at the hearing by an attorney. Two police officers

testified that Strout had identified Palmer as his assailant and

that a knife was recovered from Palmer’s pocket. Palmer

testified that Strout had cut himself on a fence and threatened

to cut Palmer with a knife, hence Palmer struck him. Based on

the testimony of the police officers and of Palmer, the hearing

officer concluded by a preponderance of the evidence that Palmer

had violated Rules 2 and 5. Palmer’s parole was revoked on

October 6, 1993.

Palmer subsequently filed two state applications for writ of

habeas corpus. Both were denied without written order. Palmer

then filed the instant federal petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254, arguing that (1) the state could

not revoke his good-time credits without providing monetary
4

compensation, (2) the state’s custody of him was unlawful because

his flat-time and good-time credits amounted to more than his

underlying sentence, and (3) the state violated his due process

and equal protection rights and his right against cruel and

unusual punishment by returning him to prison without a new

conviction after revoking his parole.

The respondent filed a motion to dismiss Palmer’s federal

habeas petition on the ground that he had not exhausted his state

court remedies. While acknowledging that Palmer had exhausted

his state remedies with respect to the second and third claims,

respondent argued that Palmer had not exhausted his remedies with

respect to his claim that the state could not deprive him of

good-time credits without providing monetary compensation. The

magistrate judge determined that it was appropriate to address

the merits of the case notwithstanding the lack of complete

exhaustion, and issued a report and recommendation that Palmer’s

habeas petition be denied.

Palmer filed objections to the magistrate judge’s report and

recommendation. In his objections, Palmer challenged for the

first time the use of hearsay testimony at his revocation hearing

and the procedure used throughout the revocation process. The

district court, after considering the report and recommendation

of the magistrate judge and conducting a de novo review of

Palmer’s objections thereto, adopted the findings and conclusions
1 Under pre-AEDPA habeas law, the factual determinations of

a state court in a habeas proceeding “evidenced by a written

finding, written opinion, or other reliable and adequate written

indicia, shall be presumed to be correct,” unless one of eight

enumerated exceptions applies. 28 U.S.C. § 2254(d) (pre-AEDPA). 

In this case the state courts denied Palmer’s petitions without

5

of the magistrate judge and dismissed Palmer’s petition with

prejudice.

Palmer timely filed a notice of appeal as well as a motion

for leave to proceed in forma pauperis (“IFP”) on appeal. The

district court granted Palmer a certificate of probable cause

(“CPC”) to appeal and stated that Palmer was entitled to proceed

IFP. This court later granted Palmer a certificate of

appealability (“COA”) as to all issues.

II. DISCUSSION

Because Palmer filed the instant federal habeas petition

prior to the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), the standards of review set forth

in AEDPA do not apply. Lindh v. Murphy, 117 S. Ct. 2059, 2068

(1997); Green v. Johnson, 116 F.3d 1115, 1119-20 (5th Cir. 1997). 

Accordingly, we apply pre-AEDPA habeas law to Palmer’s claims. 

See Green, 116 F.3d at 1120. We may consider Palmer’s

application for writ of habeas corpus “only on the ground that he

is in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2254(a) (preAEDPA).1
written order, so there are no determinations to which we apply

the presumption of correctness.

6

Generally, issues raised for the first time in objections to

a magistrate judge’s report are not properly before the district

court and therefore are not cognizable on appeal. Cupit v.

Whitley, 28 F.3d 532, 535 n.5 (5th Cir. 1994), cert. denied, 513

U.S. 1163 (1995). However, it is well established that failure

to exhaust state remedies is not an absolute bar to appellate

review of a habeas petition. Granberry v. Greer, 481 U.S. 129,

131 (1987). In some instances, the interests of judicial economy

support the exercise of appellate jurisdiction notwithstanding

the lack of complete exhaustion. Id. at 135. In addition, this

court has held that a district court may construe an issue raised

for the first time in an objection to a magistrate judge’s report

and recommendation as a motion to amend a complaint. United

States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (reviewing the

district court’s ruling on a motion for postconviction relief

pursuant to 28 U.S.C. § 2255). In this case, the district court

apparently considered the merits of Palmer’s nonexhausted claims

and concluded that they should be dismissed. We likewise

conclude that Palmer’s claims are without merit and that ordering

Palmer to exhaust his state remedies would needlessly prolong

this litigation. See Granberry, 481 U.S. at 133 (“[I]f the court

of appeals is convinced that the petition has no merit, a belated
2 Palmer also argues on appeal that (1) his incarceration

without a criminal conviction is a violation of the Thirteenth

Amendment’s prohibition against involuntary servitude, (2) the

state’s failure to restore his good-time credits denied him equal

protection of the laws, and (3) that the state’s action in

revoking his parole invaded the judicial sphere in violation of

the doctrine of separation of powers. These claims are without

merit.

7

application of the exhaustion rule might simply require useless

litigation in the state courts.”).

Palmer asserts on appeal that he was denied due process in

connection with his parole revocation.2 Specifically, Palmer

complains that he did not receive notice of the charges upon

which his revocation was based, that he did not receive a proper

preliminary hearing, that the revocation hearing was conducted by

a “designee” rather than a panel of three members of the parole

board without his consent, that he was not provided with a

written summary of the evidence and arguments supporting

revocation, and that his revocation was based solely upon the

hearsay testimony of the two police officers.

In the context of parole revocation, the Due Process Clause

requires that a preliminary hearing be held “to determine whether

there is probable cause or reasonable ground to believe that the

arrested parolee has committed acts that would constitute a

violation of parole conditions.” Morrissey v. Brewer, 408 U.S.

471, 485 (1972). With respect to the preliminary hearing,

the parolee should be given notice that the hearing

will take place and that its purpose is to determine

whether there is probable cause to believe he has
8

committed a parole violation. The notice should state

what parole violations have been alleged. At the

hearing the parolee may appear and speak in his own

behalf; he may bring letters, documents, or individuals

who can give relevant information to the hearing

officer. On request of the parolee, a person who has

given adverse information on which parole revocation is

to be based is to be made available for questioning in

his presence.

Id. at 487. The hearing officer is thereafter required to make a

summary of the evidence presented at the hearing and determine

whether there is probable cause to hold the parolee for a final

decision on revocation. Id.

With respect to the revocation hearing itself, the minimum

procedural due process requirements include:

(a) written notice of the claimed violations of parole;

(b) disclosure to the parole of evidence against him;

(c) opportunity to be heard in person 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 parole.

Id. at 489. The Court emphasized that a revocation hearing is

not to be equated with a criminal prosecution, stating that “the

process should be flexible enough to consider evidence including

letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.” Id.

Our review of the record leads us to conclude that Palmer

was accorded due process in connection with his parole
3 To the extent that Palmer complains in this appeal that

he was unlawfully imprisoned without a new criminal conviction,

we note that this argument is without merit. Conviction of a

criminal charge is not a constitutional prerequisite to the

revocation of parole. See Amaya v. Beto, 424 F.2d 363, 364 (5th

Cir. 1970).

9

revocation. First, the record indicates that Palmer received

written notice of the alleged parole violations. Second, the

record contains documentation that a preliminary hearing was held

and that such hearing comported with due process. Third, Palmer

himself acknowledges that under Texas law a revocation hearing

may be conducted either by a panel of three members of the state

parole board or by a single board employee known as a “designee.” 

Palmer cites no authority, and we are aware of none, that a

parolee must be afforded an opportunity to choose whether his

revocation hearing be conducted by a “designee” or a three-member

panel. Further, we note that Palmer did not challenge the

neutrality of the hearing officer at either the preliminary or

the revocation hearing. Fourth, the record contains a written

report of the revocation hearing that includes a summary of the

evidence upon which the decision to revoke Palmer’s parole was

based.

Finally, as to Palmer’s contention that his parole was

revoked solely on the basis of hearsay,3 we note that the report

of the revocation hearing indicates that significant nonhearsay

evidence was also introduced at the hearing. Palmer himself

testified that he struck Strout, and the officers testified that
10

a knife was recovered from Palmer’s pocket. In addition, Palmer

made no objection at the hearing to the alleged hearsay

testimony. This court has recognized that the use of hearsay in a

parole revocation proceeding is problematic in the sense that it

“prevents the parolee from confronting and cross-examining the

declarant, and unreliable hearsay undermines the accuracy of the

fact-finding process.” Farrish v. Mississippi St. Parole Bd.,

836 F.2d 969, 978 (5th Cir. 1988). Under the circumstances of

this case, however, the alleged hearsay did not constitutionally

impair the hearing.

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.