United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. LUNGSTRUM U.S. District Judge
matter is before the Court on petitioner's second motion
for order of immediate release (Doc. #25).
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.
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.
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.
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.
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.
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.
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).
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 ...