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Pool v. English

United States District Court, D. Kansas

February 15, 2017

TERRY AUSTIN POOL, Petitioner,
v.
NICOLE ENGLISH, Respondent.

          MEMORANDUM AND ORDER

          JOHN W. LUNGSTRUM U.S. District Judge

         This matter is before the Court on petitioner's second motion for order of immediate release (Doc. #25).

         Background

         On October 18, 2016, the Court granted habeas corpus relief and directed the United States Parole Commission (“Commission”) to provide petitioner with a new parole hearing within ninety (90) days, considering the case as an original jurisdiction matter.

         On January 20, 2017, the respondent advised the Court that due to an error in communication, the hearing was not conducted within the time allowed. On January 23, 2017, the Court advised the parties that unless a hearing were conducted by February 1, 2017, the Court would hear argument on petitioner's motion for immediate release.

         On January 31, 2017, the Commission notified the Court that the hearing had been held that day. On the same day, petitioner filed the present motion for immediate release.

         The motion

         Petitioner contends the new hearing conducted by the Commission was so defective that it failed to provide him with a hearing as contemplated by parole statutes. He cites the failure to provide him with prior access to documents to be considered by the Commission and a failure to notify him of the material, specifically, institutional misconduct reports and a letter opposing his release, that it would consider in making a decision.

         Discussion

         Petitioner claims the Commission failed to disclose the appropriate documents concerning his institutional disciplinary history and a letter opposing his release. As a result of this failure, he was unable to respond in detail to the hearing examiner's questions concerning his institutional history or to address the letter opposing his release.

         The statutes governing parole proceedings contemplate that thirty days before a proceeding, the prisoner will receive notice of the time and place of the hearing and “reasonable access to a report or other document to be used by the Commission in making its determination.” 18 U.S.C. § 4208(b).

         Ordinarily, at least 60 days before a statutory interim hearing is conducted, the prisoner will receive notice of the right to request disclosure of the documents to be considered by the Commission. 28 C.F.R. § 2.55(a). At a statutory interim hearing, the Commission only considers “significant developments or changes … since the initial hearing or a prior interim hearing” and the disclosure requirement is limited to relevant documents. 28 C.F.R. § 2.55(b).

         The disciplinary reports

          The materials before the Court show that petitioner has had ten serious disciplinary incidents during his incarceration. The most recent of these disciplinary incidents occurred in May 2009. and the incidents were considered at parole hearings conducted in 2010, 2011, 2013, and 2016. See Doc. #34, Ex. A. Hearing Summary dated February 11, 2010, pp. 2-4; Ex. C., Hearing Summary dated November 11, 2011, pp. 2-4; Ex. F., Post Hearing ...


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