* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 15 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

CHERI SMITH,

Petitioner-Appellant,

v. WILLIAM SNODGRASS, New Mexico Women’s Correctional Facility; MARK RADOSEVICH, Director, New Mexico Adult Probation & Parole; PATRICIA MADRID, Attorney General, State of New Mexico, Respondents-Appellees. No. 03-2270 (D.C. No. CIV-03-142 WPJ/RHS)

(D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , HARTZ , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Cheri Smith appeals from the denial of h abeas relief sought as to both an initial state felony conviction and subsequ ent state proceedings to revoke the probation she was granted with respect to the r esultant sentence. The district court held that the claims challenging the convicti on were time-barred and that petitioner had not established any right to relief with regard to the revocation proceedings. The district court then granted a certificate of appealability limited to petitioner’s due process challenge to the revocation proceedings. For reasons stated below, we affirm the denial of the due proce ss claim and deny petitioner’s request to expand the certificate of appealability to include all other claims raised in the petition. Petitioner was convicted in New Mexico state court of felony fraud and embezzlement and the misdemeanor of acting as an in surance consultant without a licence. She received consecutive sentences of thr ee years for each felony and six months for the misdemeanor. All but eighteen month s was suspended, however, and she was placed on five years’ probation with se veral conditions, including payment of $7,901.40 in restitution, execution of apromissory note to guarantee the payment, and provision of documentation from any future employer indicating notification of her embezzlement conviction.-3-

In a decision issued November 17, 2000, the New Mex ico Court of Appeals vacated petitioner’s misdemeanor conviction, but af firmed the judgment in all other respects. Petitioner did not seek review in the New Mexico Supreme Court by the December 7, 2000 deadline, see N.M. R. App. P. 12-502(B), and the court of appeals’ mandate subsequently issued on February15, 2001. By then petitioner had gained her release under the probation conditions noted above. Pursuant to an interstate compact, sh e was allowed to transfer her probation to Arizona, where she found employment. Since that time petitioner’s compliance with her probation conditions has been apersistent issue, prompting (a) a revised probation order setting out more spec ific terms regarding restitution payment; (b) several motions by the State to revoke petitioner’s probation and a bench warrant based on her failure to appear at a h earing; (c) several motions by petitioner to dismiss the proceedings and quash the bench warrant; and (d) efforts by petitioner to obtain appellate and mandamus reli ef in the state courts. While the revocation proceedings continued without resolution, petitioner commenced this action in the federal district courtfor New Mexico on January 30, 2003, raising a host of complaints about the revocation proceedings and her underlying criminal prosecution. Adopting the magistrate judge’s recommended analysis, the district court held that petitioner’s claims regarding-4-

her convictions were time-barred under 28 U.S.C. § 2244(d), and then rejected her objections to the revocation proceedings for variou s reasons. As for petitioner’s motion to expand the certificat e of appealability beyond the due process claim previously certified for appe al, we have considered the pertinent materials, concluded “that reasonable jur ists would not find the district court’s disposition of the remaining claims wrong o r even debatable,” and, therefore, deny the motion. Carter v. Ward , 347 F.3d 860, 865 (10 th Cir. 2003) (applying standard from Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Thus, our appellate review is limited to the disposition of p etitioner’s due process challenge to her probation revocation proceedings. Notwithstanding the unitary reference by the distri ct court in the certificate of appealability, there is, in fact, no single “due process” claim designated in the habeas petition. Rather, a number of objections th at could fall under that general rubric are scattered throughout the petition’s clai ms regarding the revocation proceedings. Of these, petitioner argues on appeal that the State has deprived her of certain procedural rights constitutionally guaranteed at revocation proceedings; that the State has also failed to comply with speci fic procedural provisions of the interstate compact that authorized the transfer of her probation to Arizona; and that she should have been afforded counsel as a matter of due process. None of these contentions has merit.-5-

Petitioner claims that she was not afforded the pro mpt preliminary hearing “at or reasonably near the place of the alleged [pr obation] violation,” to which she was entitled under Morrissey v. Brewer , 408 U.S. 471, 485 (1972), and Gagnon v. Scarpelli , 411 U.S. 778, 782 (1973) (holding probation revoc ation procedure must comply with “conditions specified in Morrissey v. Brewer ” for parole revocation). But this preliminary-hearing requirement is inappos ite here, where the State pursued revocation while permitting petitioner to r emain at liberty. This point was clarified some time ago: Gagnon v. Scarpelli , . . . and the decision on which it is based, Morrissey v. Brewer , . . . , prescribe a two-stage procedure for parol e and probation revocation: a preliminary hearing on whether there is probable cause to believe the terms of release were violated, and a subsequent final hearing on the merits. In those c ases, however, the respondents were held in custody until the revocati on hearing. The reason for requiring a preliminary hearing was thatthe conditional liberty of a probationer or parolee, like the more complete liberty of others, cannot constitutionally be infringed without probable cause. This reason for requiring a preliminary hearing is not present when, as here, the probationer is not held in custody to await the revocation hearing. United States v. Sciuto , 531 F.2d 842, 846 (7 th Cir. 1976) (following United States v. Strada , 503 F.2d 1081, 1084 (8 th Cir. 1974)); see also McDonald v. N.M. Parole Bd. , 955 F.2d 631, 633-34 (10 th Cir. 1991) (holding Morrissey’s “hearing requirements and time limitations must be adhered to only after the parolee is taken into custody as a parole violator[ ;] . . . [u]ntil he is, he has not been deprived of a liberty interest”).-6-

Petitioner also complains of the time that has pass ed since the State first sought to revoke her probation in September 2001. Morrissey holds that a final revocation hearing, i.e., one that “lead[s] to a fi nal evaluation of any contested relevant facts and consideration of whether the fac ts as determined warrant revocation,” 408 U.S. at 488, “must be tendered within a reasonable time,” id. (noting “lapse of two months . . . would not appearto be unreasonable”). Again, however, the deprivation of liberty prompting the Morrissey Court to impose this time constraint (and the event triggering calculati on of the length of delay) was the fact that “the parolee is taken into custody.” Id.; see Moody v. Daggett, 429 U.S. 78, 87 (1976) (“[I]n holding [in Morrissey ] that the revocation hearing must be tendered within a reasonable time after the paro lee is taken into custody, . . . we established execution of the [revocation] warrant and custody under that warrant as the operative event triggering any loss of liberty attendant upon the parole revocation.” (quotation omitted)). Hence, this aspect of Morrissey is distinguishable here for the same reason that its p reliminary-hearing requirement is inapposite. That is not to say due process places no temporal c onstraints whatsoever on revocation proceedings conducted without taking the probationer into custody. Thus, for example, extended unjustified delay in ex ecuting a revocation warrant, which by definition precedes Morrissey-Gagnon custody concerns, may implicate1 These Rules may be found at www.adultcompact.org. (March 12, 2004). -7- due process if the delay is demonstrably prejudicia l to the violator’s ability to defend. See United States v. Tippens , 39 F.3d 88, 90 (5 th Cir. 1994); United States v. Taylor , 931 F.2d 842, 848 (11 th Cir. 1991). We need not delve deeply into this question, however, as petitioner has not demonstrated any prejudice of constitutional significance. This is not a case of process withheld or postponed for some extended period; on the contrary, there ha s been a surfeit of process, including many motions and pleadings from petitione r, that has delayed resolution of the matter since the State first moved for revoc ation in 2001. Moreover, the State’s efforts to revoke probation do not stem fro m a single incident receding into an unrecoverable past; the State has repeatedl y moved for revocation based on, among other things, petitioner’s continuing fai lure to make restitution. Petitioner’s claim that the State has violated proc edures specified in the interstate compact authorizing her transfer to Ariz ona are meritless. The relevant sections of the compact simply acknowledge the due process requirement of a preliminary revocation hearing recognized in Morrissey and Gagnon and, given the interstate-transfer context, provide for it in the receiving state. Interstate Comm’n for Adult Offender Supervision Rules , 1 § 5.108 (2004) (formerly Parole and Prob. Compact Adm’r’s Ass’n Rules , §§ 5-102, 5-104). For reasons already explained, this requirement is inapplicable here.-8-

Finally, petitioner claims that she is entitled to appointment of counsel in the revocation proceedings pursuant to Gagnon , which recognized that there are “certain cases in which fundamental fairness–the to uchstone of due process–will require that the State provide at its expense couns el for indigent probationers or parolees.” 411 U.S. at 790. Gagnon noted, however, that the determination whether counsel is necessary is addressed in the fi rst instance to the “sound discretion” of the State, and cautioned that “the p resence and participation of counsel will probably be both undesirable and const itutionally unnecessary in most revocation hearings.” Id. An important consideration is “whether the probationer appears to be capable of speaking effectively for himself.” Id. 791. Petitioner has not, consistent with these principle s, demonstrated that fundamental fairness requires the State to provide her with app ointed counsel to assist with her thus-far effective opposition to its effort to revo ke her probation. Petitioner’s motion to expand the certificate of ap pealability to include all issues raised in her habeas petition is DENIED. Th e judgment of the district court denying the petition is AFFIRMED. Petitioner ’s February 19, 2004, motion for an order directing the State to expand the reco rd, April 13, 2004, renewed motion for an order to show cause why her habeas pe tition should not be granted, and April 27, 2004, renewed motion to hold the New Mexico Attorney General-9-

and its counsel of record in contempt are DENIED. Petitioner’s July 6, 2004, motion to file a supplemental appendix is GRANTED.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge