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GERAGHTY v. UNITED STATES PAROLE COMMN.

February 24, 1977

JOHN M. GERAGHTY, Individually and on behalf of a class, Petitioner,
v.
UNITED STATES PAROLE COMMISSION, ET AL., Respondents



The opinion of the court was delivered by: HERMAN

 Petitioner, John M. Geraghty, is presently an inmate at the Federal Community Treatment Center, Chicago, Illinois, *fn1" serving a 30 month sentence *fn2" imposed by the United States District Court for the Northern District of Illinois for the offenses of conspiracy to commit extortion, 18 U.S.C. § 1951, and false declarations to a grand jury, 18 U.S.C. § 1623. On appeal, petitioner's conviction was affirmed. United States v. Braasch, 505 F.2d 139 (7th Cir. 1974). Certiorari was denied by the United States Supreme Court, 421 U.S. 910, 95 S. Ct. 1561, 43 L. Ed. 2d 775 (1975).

 On September 15, 1976, petitioner, through retained counsel, filed this action in the United States District Court for the District of Columbia. By order dated November 12, 1976, the Honorable Joseph C. Waddy construed the action as a petition for a writ of habeas corpus and transferred the action to this Court. This Court issued a rule to show cause (Document 5, filed December 7, 1976) in response to which respondent has filed an answer and petitioner has filed a motion for summary judgment and a brief in support thereof. Respondent has opposed petitioner's motion for summary judgment. Because the issues presented are issues of law, no evidentiary hearing is required. 28 U.S.C. § 2243; deVyver v. Warden, U.S. Penitentiary, 388 F. Supp. 1213 (M.D. Pa. 1974). Thus, the case is ripe for disposition.

 The substantive issues raised by Geraghty's petition concern the decision of the United States Parole Commission not to release him on parole. From the record before the Court, it appears that in June 1976, petitioner was considered for parole. 28 C.F.R. § 2.14 (1976). Petitioner's case was designated an "original jurisdiction" case and referred to the National Commissioners for decision. 28 C.F.R. §§ 2.17 and 2.13(b) (1976). On July 7, 1976, the National Commissioners denied parole and continued petitioner until the expiration of his term for the stated reasons that:

 
"Your offense behavior has been rated as very high severity because it involved extortion. You have a salient factor score of 11. You have been in custody for a total of 9 months. Guidelines established by the Commission for adult cases which consider the above cases indicate a range of 26-36 months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, a decision outside the guidelines at this consideration is not found warranted."

 Petitioner appealed to the National Appeals Board, 28 C.F.R. § 2.27 (1976), which, on October 19, 1976, affirmed the decision of the National Commissioners.

 JURISDICTION

 As noted above, Judge Waddy construed this action as a habeas corpus action. *fn3" Nevertheless, petitioner has persisted in asserting that there is a separate declaratory and injunctive aspect to the case, jurisdiction for which is alleged under 28 U.S.C. §§ 1331 and 1361. *fn4" The Court concurs in Judge Waddy's reading of the complaint and finds petitioner's contention to be completely without merit. The gist of petitioner's action is a challenge to the Parole Commission and Reorganization Act (PCRA), *fn5" the guidelines promulgated by the Commission, *fn6" and the Parole Commission's decision denying petitioner's release on parole. As such, the action presents a claim that petitioner is "in custody in violation of the Constitution or laws . . . of the United States . . ." 28 U.S.C. § 2241(c)(3). The "declaratory" and "injunctive" relief sought by petitioner against the Parole Commission is, in effect, a request for a ruling that petitioner is entitled to release on parole. *fn7" Thus, the action falls squarely within the class of cases for which habeas corpus is the exclusive remedy. Preiser v. Rodriguez, 411 U.S. 475, 36 L. Ed. 2d 439, 93 S. Ct. 1827 (1973); see Gerstein v. Pugh, 420 U.S. 103, 107 n.6, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); Wolff v. McDonnell, 418 U.S. 539, 554-555, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974); United States ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659-660 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 41 L. Ed. 2d 383, 94 S. Ct. 2532 (1974); Battle v. Norton, 365 F. Supp. 925 (D. Conn. 1973); cf. Ricketts v. Ciccone, 371 F. Supp. 1249 (W.D. Mo. 1974). Consequently, 28 U.S.C. § 2241 provides the sole jurisdictional basis for this action.

 MOTION TO CERTIFY CLASS

 Petitioner purports to bring this habeas corpus action as a class action. *fn8" The complaint contains class allegations, and a motion to certify the class was filed with the complaint in the United States District Court for the District of Columbia. That motion was not acted upon by Judge Waddy and is presently before this Court. Petitioner has pressed for, and respondents have opposed, certification before both the United States District Court for the District of Columbia and this Court.

 For the reasons stated in United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied 421 U.S. 921, 43 L. Ed. 2d 789, 95 S. Ct. 1587 (1975), the Court holds that Rule 23 of the Federal Rules of Civil Procedure is not applicable to a petition for a writ of habeas corpus. Accord Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975); but see Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973); Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972); Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla. 1972). Despite the technical nonapplicability of Rule 23, procedures analogous to a class action have been fashioned in habeas corpus actions where necessary and appropriate. United States ex rel. Sero v. Preiser, supra; Bijeol v. Benson, supra; see Williams v. Richardson, supra; Mead v. Parker, supra; Adderly v. Wainwright, supra.

 In this case, class certification is neither necessary nor appropriate. Petitioner contends that class certification is necessary to ensure that the legal issues presented do not evade appellate review. This contention is based on petitioner's concern that his sentence will expire and thereby moot any appeal from this Court's decision. The motion for class certification represents petitioner's attempt to structure his suit to fit into the exception to the mootness doctrine enunciated in Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975); see e.g., Gerstein v. Pugh, supra, at 110 n. 11. However, the possibility of mootness on appeal is not a proper consideration for determining whether or not the action should be maintained as a class action. Cf. Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C. (setting forth the prerequisites to a class action). The issues petitioner raises may be litigated without the presence of a class.

 Class certification is inappropriate for several reasons. Two of the issues raised -- the Commission's characterization of petitioner's offense as extortion and access to certain Commission files -- relate solely to petitioner's individual case and have no class-wide applicability. *fn9" Cf. LoCicero v. Day, 518 F.2d 783 (6th Cir. 1975). Another issue -- the applicability of the guidelines, 28 C.F.R. § 2.20 (1976) to prisoners sentenced under 18 U.S.C. § 4208(a)(2) (1958) -- is similarly inapplicable to all the members of the proposed class. The remaining issues -- the constitutionality of the PCRA and the guidelines -- do present questions of law common to the class; however, not all members of the class have the same interest as petitioner. For example, prisoners who are, or will be, paroled under the PCRA and the guidelines clearly do not have the same interest as petitioner in seeking to have the statute declared unconstitutional. Thus, petitioner's claims are not typical of those of the proposed class. Cf. Rule 23(a)(3) of the Fed. R. Civ. P.; see Sosna v. Iowa, supra at 403 and n. 13. Furthermore, this Court does not have habeas corpus jurisdiction over all the members of the proposed class. ...


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