The opinion of the court was delivered by: NEALON
On January 31, 1977, respondent in this habeas corpus action was given 15 days to supplement the record of petitioner's parole consideration to explain an apparent error in the statement of reasons for the denial of parole. See Notice of Action dated Nov. 4, 1975. In the alternative, should an explanation of the apparent error in fact be impossible, respondent was given 30 days within which to conduct a new parole hearing. By letter dated February 4, 1977, respondent advised the Court that a new parole hearing would be conducted. Following a hearing held February 8, and by notice of action dated February 23, the Parole Commission informed petitioner that parole was again being denied, and that petitioner would be continued for a review hearing in October, 1977. See Document #22.
Petitioner has filed motions for leave to file a supplemental petition and for release on bail pending resolution of the action. Respondent has filed a brief in opposition to the motion for release on bail. The Court will take this motion under advisement. Respondent's brief opposing the filing of a supplemental petition was due March 10, 1977 but has not been filed despite detailed notice of the necessity to do so. See Order of Feb. 16, 1977. Consequently, in accordance with Local Rule 301.01, the motion for leave to file a supplemental petition is deemed unopposed, and leave will be granted. See Fed. R. Civ. P. 15(d). Respondent will be given 15 days to file a supplemental answer. See Rule 4 of the Rules Governing Section 2254 Cases in the United States District Court.
In the Order of January 31, 1977, I reserved the question of whether the statement of reasons supplied petitioner in the November 1975 notice of action was adequate. See generally United States ex rel. Jacoby v. Arnold, 442 F. Supp. 144 (M.D. Pa. 1977). If petitioner has now been supplied with a notice fully comporting with the requirements of due process, see Notice of Action dated Feb. 23, 1976, this issue may now be moot. See Hill v. Attorney General, 550 F.2d 901 (3d Cir. 1977). At this time this issue remains before the Court, and should be addressed in the supplemental answer.
In the supplemental petition it is argued that respondent has made judicial admissions to the effect that petitioner would be entitled to release after 144 months in custody. It is now clear that petitioner has served over 148 months in custody. Therefore, it is argued, petitioner is entitled to release. Respondent must address this issue in the supplemental answer.
In addition, by petitioner's brief in reply to respondent's brief in opposition to the motion seeking bail, petitioner seeks to raise a third ground for the granting of habeas corpus relief. In the brief opposing the bail motion, respondent had attached the affidavit of Frank C. Johnston.
Therein, Mr. Johnston states that the most recent denial of parole was based upon the determination that institutional progress was poor until 1973, and that the record of institutional misconduct including, but apparently not limited to two murders justified denial of parole. The murders, committed in 1962 and 1964, were mentioned in both the November 1975 and February 1977 notices of action. However, the notices contain no reference to petitioner's institutional progress between 1964 and 1973. By way of reply brief, petitioner contends that court orders in Adams v. Carlson, 368 F. Supp. 1050 (E.D. Ill. 1973), and 375 F. Supp. 1228 (E.D. Ill. 1974), removed the only blemishes on his institutional record for the period 1964 to 1973. Consequently, petitioner argues both that he had good institutional progress in the years 1964 to 1973, and that he had no notice during parole consideration that purported misconduct for those years was a ground for the denial of parole.
Petitioner cannot by way of brief raise new grounds for the granting of habeas corpus relief. See 6 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE, Civil § 1504 (1971). Instead, the Court will grant petitioner leave to file a supplemental petition within 15 days raising this further ground. See Fed. R. Civ. P. 15(d); Rule 1(b) & 11 of the Rules Governing Section 2254 Cases in the United States District Court. The personal affidavit of the petitioner may be incorporated by reference. A response, if necessary, will be ordered.
NOW, this 14th day of April, 1977, in accordance with the memorandum this day filed, it is hereby ordered that respondent file a supplemental answer within fifteen (15) days. And further it is ordered that leave to file a further supplemental petition within fifteen (15) days raising matters connected with the affidavit of Frank C. Johnston is granted.
Chief Judge United States District Court
MEMORANDUM AND ORDER (August 10, 1977)
The rather involved history of this case is set forth in the Memorandum of April 14, 1977. As I explained at that time, two contentions remain to be considered in this action:
(1) whether, under the doctrine of judicial preclusion, respondent's sworn statements to the effect that petitioner would probably be entitled to release after 144 months in custody prevent respondent from contesting petitioner's release now that an error in the calculation of petitioner's period of confinement has been discovered and it is known that he has already been confined in excess of 144 months; and
(2) whether petitioner has been given adequate statements of reasons when those statements failed to include the determinative reason for the denial of parole.