UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ANTHONY R. HAMILL,

Petitioner-Appellant,

v.

WYOMING DEPARTMENT OF CORRECTIONS STATE PENITENTIARY WARDEN, in his official capacity; WYOMING ATTORNEY GENERAL, in his official capacity,

Respondents-Appellees.

No. 96-8086

(D.C. No. 95-CV-093-J)

(D. Wyo.)

ORDER AND JUDGMENT*

Before TACHA, MCKAY, and BALDOCK, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously to grant the parties' request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Anthony R. Hamill, a Wyoming state prisoner proceeding pro se, filed a habeas corpus petition under 28 U.S.C. § 2254, seeking relief from a parole revocation proceeding. The district court dismissed his petition on the merits1 and denied petitioner a certificate of appealability. This appeal followed.

In this court, petitioner has again applied for a certificate of appealability. Our recent decision in United States v. Kunzman, ___ F.3d ___, No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997), makes it clear now that to take an appeal in this circuit in a habeas case like this one, where the petition was filed before the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), it is a pre-AEDPA certificate of probable cause that is required, rather than an AEDPA certificate of appealability. Regardless of the label, however, petitioner's substantive burden is the same. Both certificates require that petitioner make a substantial showing of the denial of a constitutional right. Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert. denied, 117 S. Ct. 746 (1997), overruled in part by Lindh v. Murphy, 117 S. Ct. 2059, 2061 (1997).

Petitioner contends that he was deprived of due process during the course of his parole revocation proceeding. On appeal, he argues three alleged due process violations:2 (1) excessive delay between his detention for suspected parole violations and the preliminary or "probable cause" hearing; (2) the presence of a non-neutral party during the state parole board's deliberations following his revocation hearing; and (3) the failure of the parole board to state the evidence relied upon in revoking his parole. The district court rejected these claims (and the others before it), and concluded that petitioner's parole revocation proceedings were "constitutionally adequate." R., tab 13 at 26. The district court also found that petitioner had failed to demonstrate he suffered prejudice as a result of any of the alleged constitutional violations. See id. at 29.

Petitioner's first due process argument focuses on the delay between his detention by authorities for suspected parole violations and his probable cause hearing. Petitioner was taken into custody on June 30, 1994, and his preliminary hearing did not occur until August 11, 1994, forty-two days later. Mere delay, however, even if assumed to be excessive, does not necessarily constitute a due process violation entitling petitioner to immediate release. McNeal v. United States, 553 F.2d 66, 68 (10th Cir. 1977). Instead, "to establish a legal right to habeas relief, the delay, taking into consideration all the circumstances, must also be prejudicial." Id.; see also Harris v. Day, 649 F.2d 755, 761-62 (10th Cir. 1981). Petitioner does not allege any prejudice as a result of the delay between his detention and his preliminary hearing.3

Petitioner also claims that he was denied the required "neutral and detached hearing body," Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (quotation omitted), by the presence during the parole board's deliberations of the corrections official who initiated petitioner's revocation proceeding and presented the state's case for revocation. We disagree. Petitioner does not allege that the official participated in the board's deliberations, cf. Shepard v. Taylor, 433 F.Supp. 984, 986 (S.D.N.Y.), aff'd mem., 573 F.2d 1295 (2d Cir. 1977) (due process violated where one of the two hearing examiners was the official who recommended and obtained the parole violation warrant application), and indeed the record includes an affidavit (which petitioner does not challenge) indicating that the official said nothing during the deliberations, see R., tab 6, exh. H at 2. The board's action in simply allowing the corrections official to remain in the room during its deliberations while asking petitioner to leave does not, in and of itself, absent any showing of actual bias or prejudice, support a conclusion that the board was less than neutral and detached.

Finally, petitioner argues that his due process rights were violated because the parole board's revocation order does not set forth the evidence upon which the board relied in revoking his parole as required by Morrissey, 408 U.S. at 489. Again, we disagree. We note that the order in this case does not consist entirely of boilerplate language that sheds no light on the basis for revocation, but contains specific findings as to what conduct charged was proven at the hearing by substantial evidence. Petitioner has not challenged the sufficiency of the evidence to support those findings. Under these circumstances, we cannot say that petitioner's due process rights have been violated.

We conclude that petitioner has failed to make a substantial showing of the denial of a constitutional right, and thus we DENY petitioner a certificate of probable cause and DISMISS the appeal. The mandate shall issue forthwith.

Entered for the Court

Bobby R. Baldock

Circuit Judge