The opinion of the court was delivered by: MUIR
Ready, an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 alleging that the Parole Commission improperly rescinded his parole. The case was referred to United States Magistrate Quinn to conduct necessary proceedings and to make his report and recommendation to the Court. On August 1, 1979, the Magistrate issued a rule to show cause. On August 6, 1979, Ready filed an amended petition. On August 8, 1979, Ready was directed to file a further amendment indicating whether he had exhausted administrative remedies. An amended petition was filed on August 13, 1979. The Respondents filed their answer on August 20, 1979. Ready filed a traverse on September 14, 1979. On October 1, 1979, Respondents filed a supplemental brief in opposition to Ready's petition which was supported by documents filed on October 2, 1979. On November 13, 1979, Ready filed additional documents. Because of the lengthy illness of Magistrate Quinn of which the Court became aware in January, 1980, the case was reassigned to this Court which will rule on Ready's petition without the benefit of a Magistrate's Report. For the reasons which follow, the Court will order Ready released on parole unless a new parole rescission hearing is held within 30 days of the date of the order accompanying this opinion.
Ready began his term in federal custody following the imposition of a five-year term of imprisonment on November 8, 1974 by the United States District Court for the Eastern District of Missouri upon Ready's conviction for interstate transportation of forged securities. On October 12, 1976, Ready was sentenced to a term of 15 years in prison following his conviction for conspiracy, filing false tax claims and cashing refund checks in the United States District Court for the District of Kansas. This sentence was to be served consecutively to the five-year term previously imposed.
Ready received his initial parole hearing on August 3, 1977. By notice of action dated August 16, 1977, he was advised that parole had been denied and that his case had been continued for review in August, 1979. By notice of action dated May 2, 1978, the National Appeals Board of the Parole Commission established an effective date of parole of November 7, 1978 through a community treatment center.
In August, 1978, the Northeast Regional Commissioner of the Parole Commission received letters from the United States Attorney in Kansas and the Internal Revenue Service which expressed shock that Ready was to be paroled. By notice of action dated September 22, 1978, Ready was advised that his case had been reopened pursuant to 28 C.F.R. § 230.34(b) (1978) and that a rescission hearing had been scheduled. A supplemental statement of the charges against Ready was included in a notice of action dated November 21, 1978. This notice advised Ready that possible basis for rescission included his alleged advice to inmates at the United States Penitentiary at Leavenworth, Kansas of how to obtain money fraudulently from the IRS, Ready's holding himself out as an officer of the Court and issuing false subpoenae to various governmental agencies and his progress while at the community treatment center. Prior to the rescission hearing, Ready's counsel sought permission to call witnesses at the proceeding and to cross examine adverse witnesses. The Parole Commission's counsel advised Ready's attorney that cross examination was not permitted at rescission hearings nor were witnesses allowed to be present although statements from witnesses would be considered. Information on which the decision could be based was disclosed to Ready's attorney prior to the rescission hearing in a letter dated November 21, 1978.
An examiner panel of the Parole Commission conducted a rescission hearing on December 5, 1978 at Lewisburg. By a notice of action dated December 27, 1978 Ready was advised that his parole was rescinded and a presumptive parole date of December 5, 1980 had been established. Ready filed an administrative appeal to the Northeast Regional Office. By notice of action dated February 13, 1979 the Regional Office affirmed the examiner panel's decision but modified the reasons. As modified, Ready's parole was rescinded because the Commission found that he had supplied information to inmates at Leavenworth instructing them how to obtain money fraudulently from the IRS, that Ready falsely held himself out as an officer of the Court and issued false subpoenae to various governmental agencies, and that he adjusted poorly to the halfway house placement by continual curfew violations. Ready filed an appeal to the National Appeals Board which affirmed the Regional Office's decision by notice of action dated July 9, 1979.
Ready alleges several deficiencies in the parole rescission process. First, the Commission allegedly failed properly to institute the rescission process. Second, the National Appeals Board allegedly did not render a decision in a timely manner. Third, the Commission allegedly violated its own regulations in moving to rescind Ready's parole because much of the information which led to that action was not new information as required by 28 C.F.R. § 2.34(b) (1978). Fourth, Ready allegedly was denied due process of law at the rescission hearing because he was not permitted to call witnesses in his behalf or to cross examine adverse witnesses. Fifth, the Commission's decision to retard his parole was allegedly arbitrary and capricious.
Ready's first two claims require but little comment. The uncontroverted affidavit of the Commission's regional counsel demonstrates that the Commission complied with 28 C.F.R. § 2.34(b) (1978) in obtaining the approval of the National Commissioners in re-opening Ready's case. Although the Commission did not comply with 18 U.S.C. § 4215(b) in that its decision on Ready's appeal of his rescission was issued 45 days beyond the 60 days provided, Ready was not prejudiced by that delay. Cf. U. S. ex rel. Fitzpatrick v. U. S. Parole Commission, 444 F. Supp. 1302 (M.D.Pa.1978). Consequently, neither claim is a ground for relief.
Title 28 C.F.R. § 2.34(b)(1) (1978) provided for the rescission of parole "(u)pon receipt of new information adverse to the prisoner regarding matters other than institutional misconduct." Ready takes the position that the Commission was aware of his alleged involvement in aiding prisoners at Leavenworth to obtain fraudulent refunds from the IRS at the time the Commission made its initial decision to grant him parole on November, 1978. This claim is supported by a letter Ready sent to the Commission following his parole hearing on August 3, 1977. That letter discusses the allegations that Ready was involved in the prisoner's IRS fraud at Leavenworth and denies any involvement. Ready's mention of the Leavenworth incident was in response to the hearing summary of his August 3, 1977 initial parole hearing. That summary states that his indictment and "subsequent conviction for income tax fraud, was part of the Leavenworth prisoner tax fraud case." Ready felt that that statement was inaccurate and, in his letter to the National Appeals Board, stressed that his income tax conviction was unrelated to the prisoner tax frauds at Leavenworth.
The Respondents do not contest that they received this letter from Ready. They maintain, however, that the new information which caused the Commission to reopen Ready's case was a letter dated August 23, 1978 to the chairman of the National Appeals Board from the United States Attorney for the District of Kansas which stated that while an inmate at the United States Penitentiary at Leavenworth, Ready:
knowingly supplied information to fellow inmates concerning the methods by which he fraudulently obtained money from the Internal Revenue Service. This information was used by other inmates to file additional false tax returns with the Internal Revenue Service . . . . Mr. Ready confessed to having supplied this information to fellow inmates in a statement given to representatives of the United States Attorney's Office and the Internal Revenue Service during the month of November 1977.
In addition, the United States Attorney charged that during the months of December, 1976 and January, 1977 "Mr. Ready fabricated his own subpoenas and sent these spurious subpoenas to various government agencies to Kansas, Missouri and the District of Columbia." The Commission also received a letter from the Internal Revenue Service which made similar allegations against Ready with respect to the prisoner tax frauds at Leavenworth. The Respondents maintain that until the receipt of those letters, the only information they had about Ready's involvement with the tax fraud at Leavenworth was Ready's denial.
This case is distinguishable from that of Bonomo v. McCall, Civil No. 79-1396 (M.D.Pa. Dec. 10, 1979) in which this Court held that the Parole Commission could reopen a prisoner's case based upon the occurrence of an institutional disciplinary violation which occurred prior to the setting of a final parole date because it did not appear in that case that the Commission had any notice of the violation when it set the parole date. In this case, the Commission had before it Ready's letter concerning the events at Leavenworth and chose not to pursue the matter. The Commission cannot now, under the guise of new information, rescind Ready's parole after receiving letters from the Internal Revenue Service and the United States Attorney which strongly objected to Ready's release on parole.
The information concerning Ready's use of subpoena and his adjustment to the community treatment center was new information within the meaning of 28 C.F.R. § 2.34 (1978) because there is nothing in the record to indicate the Commission was aware of the information prior to the decision to hold a rescission hearing. Because the Court cannot determine whether the Commission would have moved to rescind Ready's parole or whether it would have rescinded Ready's parole if it had not considered the letters from the I.R.S. and the U.S. Attorney concerning the Leavenworth tax ...