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MONKS v. UNITED STATES PAROLE COMMN.

December 6, 1978

William R. MONKS, Petitioner,
v.
UNITED STATES PAROLE COMMISSION et al., Respondents



The opinion of the court was delivered by: NEALON

Petitioner, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, instituted this habeas corpus action pursuant to 28 U.S.C. § 2241. Petitioner contests the validity of the July 19, 1977 decision of the United States Parole Commission (Commission) denying him parole. There is no dispute concerning the averments made in the habeas petition and the statements contained in the exhibits appended to respondents' answer. Accordingly, since the pleadings do not present factual issues material to the questions of law raised by this case, an evidentiary hearing is unnecessary. See 28 U.S.C. § 2243; Boeckenhaupt v. United States Parole Commission, Civil No. 77-771, slip op. at 1 (M.D.Pa., filed Sept. 12, 1977); DeVyver v. Warden, 388 F. Supp. 1213, 1215-16 (M.D.Pa.1974). See generally C.A. Wright, Procedure for Habeas Corpus, 77 F.R.D. 227, 245 (1978). Because I believe that the Commission improperly weighed in its deliberations on petitioner's parole application petitioner's reversed murder conviction and failed to state with sufficient specificity the reasons for classifying his offense behavior severity as "greatest" and the reasons for denying him parole and continuing his case to June of 1979, the Commission will be instructed to grant petitioner a new parole hearing.

 FACTS

 In 1974, petitioner was convicted in the United States District Court for the District of Vermont of two counts of bank "burglary" *fn1" and of one count of interstate transportation of a stolen motor vehicle. *fn2" Petitioner received a "regular adult" prison term *fn3" of eight years on each of the bank burglary convictions and a regular adult term of three years on the interstate transportation of a stolen motor vehicle charge. These sentences were ordered to run concurrently. In January of 1977, petitioner pled guilty in the United States District Court for the District of New Jersey to one count of conspiracy *fn4" and one count of bank "larceny." *fn5" The New Jersey district court sentenced petitioner pursuant to 18 U.S.C.A. § 4205(b)(2) (Supp.1978) *fn6" to five years on the conspiracy count and ten years on the bank larceny charge. These terms were ordered to run concurrently with each other and concurrently with the prison terms imposed by the Vermont district court.

 Petitioner received his initial parole hearing on June 8, 1977, after having served more than one-third of the Vermont sentence. *fn7" The hearing summary indicates that the hearing examiners took into consideration a number of factors in deciding to recommend that parole be denied, among which were petitioner's juvenile record, which includes a reversed murder conviction; the multiple offenses for which petitioner is currently in prison; petitioner's demonstrated lack of remorse for his criminal activity; and remarks apparently made by a United States Attorney to the effect that petitioner is not a "good parole risk." *fn8"

 The hearing examiners also evaluated petitioner's parole application under the Commission's "paroling policy guidelines." *fn9" Petitioner's offense behavior severity was rated as "greatest" because of the multiple offenses for which petitioner had been convicted. Petitioner's salient factor score, i. e., parole prognosis, fell within the "good" range. Under the "guidelines" applied in petitioner's case the customary time to be served for an inmate whose offense severity was rated as "greatest" and whose salient factor score fell within the "good" range is 48 months Or more. *fn10" Based upon the foregoing, the hearing examiners recommended that petitioner, who at that time had served 40 months in prison, not be paroled and that his case be continued for a regular review hearing in June of 1978.

 The Regional Commissioner assigned to petitioner's case disagreed with the hearing examiners' recommendation and referred the matter to the National Commissioners, *fn11" who decided to continue petitioner's case to the statutory required review hearing in June, 1979. The following statement was provided petitioner as an explanation for the continuance of his parole application until June, 1979:

 
Your offense behavior has been rated as greatest severity because of multiple offenses. You have a salient factor score of 6. You have been in custody a total of 42 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a range of 48 or more months to be served before release for cases with good institutional program performance and adjustment. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior and thus is incompatible with the welfare of society. Commission guidelines for greatest severity cases do not specify a maximum limit. Therefore, the decision in your case has been based in part upon a comparison of the relative severity of your offense behavior with offense behaviors and time ranges specified in the very high severity category.
 
18 U.S.C. § 4208 prohibits a continuance in your case of more than 24 months without review. Your next review has been scheduled in accordance with this statute.

 Petitioner attempted to appeal the National Commissioners' decision. This appeal, however, was untimely *fn12" and was accordingly treated as a motion to reopen. *fn13" The motion was denied because it did not present "new or significant information deemed sufficient to warrant a recommendation for the reopening of (petitioner's) case. . . ." *fn14" Petitioner's appeal from this ruling was dismissed because "the denial to reopen a case . . . is not an appealable decision." *fn15"

 Petitioner then instituted an action under 28 U.S.C. § 2255 in the United States District Court for the District of New Jersey contending that the denial of parole had frustrated the intention of the sentencing court. Relief in that proceeding was denied.

 Petitioner now seeks habeas relief from this Court. Some of the claims asserted by him arguably have merit in light of Geraghty v. United States Parole Commission, 579 F.2d at 259-263, slip op. at 35-41 (3d Cir. 1978), Petition for cert. filed, 47 U.S.L.W. 3351 (U.S. Oct. 5, 1978) (No. 78-572). Since he may be among the class certified by the district court in Geraghty, I will decline to entertain those claims raised by him in this action that are also being litigated in Geraghty. *fn16" See Jacobs v. United States Parole Commission, Civil No. 78-311, slip op. at 1 (M.D.Pa., filed July 17, 1978). See also Bryan v. Werner, 516 F.2d 233, 239 (3d Cir. 1975) (not error for district court to refuse to consider a claim being litigated in a class action in another district court where plaintiff is a member of the class).

 Petitioner also believes that he is entitled to relief on the following grounds:

 (1) the refusal to allow petitioner to contest the validity of the parole denial through ...


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