2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-16-2008

Napoleon Graves v. Ronnie Holt

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3215

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Napoleon Graves v. Ronnie Holt" (2008). 2008 Decisions. Paper 102.

http://digitalcommons.law.villanova.edu/thirdcircuit_2008/102
1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3215

___________

NAPOLEON GRAVES,

Appellant

vs.

RONNIE HOLT

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 07-cv-00849)

District Judge: Honorable Christopher C. Conner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

NOVEMBER 24, 2008

Before: SCIRICA, Chief Judge, CHAGARES AND WEIS, Circuit Judges

(Opinion filed December 16, 2008)

___________

OPINION

___________

PER CURIAM.

Appellant Napoleon Graves appeals from an order of the District Court

dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. 

Finding no error, we will affirm. Because the parties are familiar with the relevant facts
 The Prince William County (Virginia) prosecutor declined to prosecute criminal 1

charges.

2

and the procedural background, we will not discuss them in detail. 

Graves was sentenced in the District of Columbia Superior Court to a term

of imprisonment of 12 years for a May 1989 conviction for attempted distribution of

cocaine, and to an additional 690 days for carrying a dangerous weapon, attempted

possession of cocaine, and simple assault. On October 19, 2000, he was paroled from his

DC sentence and was to remain under parole supervision until July 1, 2008. 

On April 12, 2006, the United States Parole Commission issued a Warrant,

charging Graves with violating the conditions of his parole by driving recklessly and

refusing to take a breathalyser test. On June 16, 2006, Graves was arrested and charged

with threats, assault with a dangerous weapon, and felon in possession of a firearm, on

the basis of a domestic incident. The Parole Commission subsequently added these

charges to the April 2006 Warrant. During the parole-related probable cause

proceedings, Graves’ wife, Gladys, and stepson, Carlos Howard, were listed as adverse 1

witnesses on the basis of statements they gave to police on the day of the June 16 arrest.

On September 28, 2006, the Parole Commission held a revocation hearing. 

Graves was represented by counsel. The arresting officer, Officer Headrick, testified in

accordance with the arrest report, which incorporated the original statements given by

Mrs. Graves and Mr. Howard. In his defense, Graves’ counsel introduced new statements
3

from Mrs. Graves and Mr. Howard, disavowing their original statements. Counsel had

met with them previously, and, after obtaining the new statements, told them their

presence at the hearing would not be required. In fact they did not appear at the hearing.

The hearing examiner recommended no finding of guilt on any of the charges. As to

Charge 3(B) in particular, felon in possession of a firearm, the “no finding” decision was

based on the failure of Mrs. Graves and Mr. Howard to appear. The hearing examiner

reasoned that Officer Headrick’s testimony was insufficient to support a finding of guilt,

because he had no first-hand knowledge of Graves’ possession of the firearm. 

On October 6, 2006, the reviewing examiner disagreed with the disposition

of Charge 3(B) and found that the preponderance of the evidence supported a finding that

Graves had constructive possession of a firearm. The Parole Commission agreed with the

reviewing examiner. It issued a Notice of Action on October 11, 2006, revoking Graves’

parole and ordering him to serve 24 months imprisonment. All of Graves’ street time was

forfeited, giving him a new full term date of March 14, 2014. 

Graves timely appealed to the National Appeals Board. He contended that

Officer Headrick lied about the June 16, 2006 firearm incident, and that his testimony had

been based on unreliable hearsay – that is, on the original statements given at the scene by

Mrs. Graves and Mr. Howard. Graves claimed that Officer Headrick threatened his wife

and stepson, causing them to give the information that implicated him in the crime of

felon in possession. The Appeals Board was not persuaded and affirmed. The Board
4

acknowledged that there had been differing accounts about what had happened in the

Graves’ home prior to the police department’s arrival on the scene, and that the local

prosecutor had declined to press criminal charges. Nevertheless, the initial statements

given by Mrs. Graves and Mr. Howard were judged to be credible and they adequately

supported the charge under the applicable standard. The later statements, according to the

Board, were “not more credible than the version provided by police based upon

statements made immediately after the incident and the testimony of Officer Headrick.”

Graves filed the instant habeas corpus petition in United States District

Court for the Middle District of Pennsylvania, alleging that (1) the Parole Commission, in

adjudicating him guilty, improperly relied upon unreliable hearsay evidence (Officer

Headrick’s testimony concerning the initial statements given by Mrs. Graves and Mr.

Howard), and (2) his counsel before the Parole Commission had been ineffective in

advising these witnesses not to appear. The Parole Commission submitted an answer,

asserting that each argument advanced by Graves had not been fully presented to the

Appeals Board. The Magistrate Judge issued a Report and Recommendation,

recommending that the petition be denied. In pertinent part, he concluded that the

ineffectiveness claim was unexhausted and the due process claim lacked merit because

the Board may consider hearsay evidence, and there was a rational basis in the record to

support the revocation of Graves’ parole. In an Order entered on May 27, 2008, the

District Court adopted the Report and Recommendation, and dismissed in part and denied
5

in part Graves’ habeas corpus petition. This appeal followed.

We will affirm. As a District of Columbia prisoner Graves needs a

certificate of appealability to proceed, see Madley v. U.S. Parole Comm’n, 278 F.3d

1306, 1309 (D.C. Cir. 2002) (D.C. prisoner is state prisoner for purposes of federal

habeas corpus statute); Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) (state prisoner

in custody pursuant to judgment of state court must rely on 28 U.S.C. § 2254 to bring

claims challenging execution of his sentence); 28 U.S.C. § 2253(c)(1)(A) (certificate of

appealability required to proceed with appeal where continued detention resulted initially

from state court judgment), and we hereby grant it. 

Graves has now served his 24-month parole violator term. He was reparoled on June 15, 2008, which raises the question whether this appeal is moot. The

case-or-controversy requirement continues through all stages of federal judicial

proceedings, trial and appellate, and requires that parties have a personal stake in the

outcome. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-478 (1990). Graves’

challenge is not one to an underlying conviction; however, even if collateral

consequences are not presumed, Graves may still avoid a finding of mootness if he can

show a continuing injury that is sufficient. Spencer v. Kemna, 523 U.S. 1, 14 (1998). We

are satisfied that he has done so. Liberally construing his argument, he claims that, were

he to prevail here the Commission’s forfeiture of his “street time” (time spent on parole)

would be invalidated and the full term date of his sentence (the date until which he will be
6

subject to parole supervision) would advance accordingly. When Graves was last

released on parole, his full term date was July 1, 2008 (instead of the current March 14,

2014), and thus he has shown a collateral consequence sufficient to keep the controversy

alive. The parties have not argued otherwise.

Turning to the merits, a court’s role in reviewing decisions by the United

States Parole Commission on an application for a writ of habeas corpus is limited. See

Gambino v. Morris, 134 F.3d 156, 160 (3d Cir. 1998). The appropriate standard of

review is only whether there is a rational basis in the record for the Commission's

conclusions embodied in its statement of reasons. Id. (citing Zannino v. Arnold, 531 F.2d

687, 691 (3d Cir.1976)). The court must only ensure that the Commission’s decision is

not arbitrary and capricious, nor based on impermissible considerations. Id. Graves’ only

contention on appeal concerns the “unreliability” of Officer Headrick’s testimony to the

extent he relied upon Mrs. Graves’ and Mr. Howard’s original statements.

It is clear the Parole Commission had a rational basis to credit the testimony

of Officer Headrick over Mrs. Graves’ and Mr. Howard’s later version of events. The

police arrived at the scene after a 911 call. All residents, including Graves, his wife, and

his stepson, eventually exited the building. The police recovered a firearm in a trash can

located in the basement bathroom under a sink, and it was Mrs. Graves who showed the

officer the location of the firearm. She gave a statement at the scene which indicated that

Graves had possession of the gun at one point during an incident which involved behavior
 When questioned by police, Graves provided a statement that a neighbor had come 2

to his house with a weapon and that he had kicked the weapon from the neighbor’s hand.

 In his subsequent affidavit, Mr. Howard stated: 3

My stepfather picked up the gun to show it to me and told me

that he took it from a guy that ran out of the house. I told him

to put the weapon down until I knew exactly what was going

on. My stepfather ... was jittery, repeating, “look at this.” He

did not point the weapon at me. He was more concerned with

7

that could be interpreted as threatening. Mr. Howard gave a statement that he responded

to a call for help from his mother and emerged from his bedroom to find his stepfather

with a gun in his hand. He retrieved his shotgun from his bedroom, and, when Graves

refused to put the gun down, fired a warning shot into the floor. Only then did Graves put

the gun down. 

2

The only evidence of record calling into question the reliability of Officer

Headrick’s testimony and Mrs. Graves’ and Mr. Howard’s original statements are Mrs.

Graves’ and Mr. Howard’s subsequent affidavits recanting. We do not believe the Parole

Commission acted irrationally in discrediting these subsequent affidavits. The original

statements were given during the heat of the moment, and thus likely to be truthful,

whereas the later statements were given once the parole revocation proceedings had

commenced and the harsh reality of the probable break-up of the Graves’ family, as a

result of Graves’ likely reincarceration, began to sink in for all concerned. Furthermore,

Mr. Howard’s later affidavit still puts the gun in Graves’ hand under circumstances that

made Mr. Howard fearful for his and his mother’s safety.3
showing me the weapon. I was concerned because he was

nervous and holding a gun. From my experience with

weapons, I knew this was not a safe situation. I fired a shot of

birdshot into the floor. Napoleon Graves then sat down on

the couch and tossed the weapon to the side.”

See Appellant’s Brief, Appendix “B.”

Finally, although parolees have the right to a revocation hearing at which

they can present witnesses and cross-examine adverse witnesses, see Morrissey v.

Brewer, 408 U.S. 471, 489 (1972), Graves was not deprived of his right to cross-examine

adverse witnesses, because Mrs. Graves and Mr. Howard, having recanted, were no

longer adverse to him by the time of the revocation hearing.

For the foregoing reasons, we will affirm the order of the District Court

denying Graves’ habeas corpus petition.