Pool v. Maye

Filing 41

MEMORANDUM AND ORDER ENTERED: Petitioner's second motion for immediate release 25 is denied. Signed by District Judge John W. Lungstrum on 02/15/17. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TERRY AUSTIN POOL,
Petitioner,
v.

CASE NO. 16-3148-JWL

NICOLE ENGLISH,
Respondent.

MEMORANDUM AND ORDER

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 Assessment dated December 23, 2013, p.2;
and Ex. I, Mandatory Parole Hearing and Prehearing Summary, dated
March 11, 2016, pp. 3-4.
Likewise, the record shows that on January 24, 2017, petitioner
and his institutional case manager signed a progress report that
included his disciplinary history, including dates, infractions, and
disciplinary action. The report also contained information concerning
his programming and institutional adjustment. Id., Ex. M.
The letter opposing release
Petitioner also complains of the failure to provide him with a
letter opposing his release. The Commission may not disclose
information where that disclosure “might result in harm, physical or
otherwise, to any person.” 18 U.S.C. § 4208(c)(3). Where such an
exclusion is necessary, the Commission must “summarize the basic
contents of the material withheld…and furnish such summary to the
inmate.” Id.
By a letter dated July 21, 2014, the Commission provided a
statement that it was withholding a victim letter of opposition,
described as nine pages in length, dated September 29, 2011. Doc. #34,
Ex. N. While that statement provides no information concerning the
particular contents of the letter, the petition in this matter
suggests that petitioner had received information earlier from the
Commission that the letter was written by his sister. Doc. #1,
Supporting Memorandum, pp. 8-9 (alleging petitioner’s sister seeks
control of their mother’s estate).

The record shows that petitioner did not have access to the
disciplinary reports or the letter opposing his release. However, it
is also clear that by the time of the January 2017 hearing, neither
the disciplinary incidents nor the letter in opposition presented new
material concerning a development or change occurring since a prior
interim hearing as contemplated by the governing regulation. In this
context, the Court is persuaded that the documentation provided to
petitioner was adequate. The petitioner’s rights in a parole hearing
are limited in scope, and the petitioner’s disciplinary history, in
particular, had been referenced in at least three earlier hearings.
See Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S.
1, 9-10, 14 (1979)(discussing factual and predictive appraisals
involved in parole decisions and noting that the “full panoply of due
process required to convict and confine” is not required in parole
hearings).
Finally, the Court concludes the remedy sought by petitioner,
immediate release, should not be granted. If the Commission’s decision
is adverse to him, petitioner will have an available administrative
remedy that will allow an orderly review of the alleged error. Release
is an extreme remedy that is not favored by the courts. See Hilton
v. Braunskill, 481 U.S. 770, 775 (1987)(“[The Supreme] Court has
repeatedly stated that federal courts may delay the release of a
successful habeas petitioner in order to provide the State an
opportunity to correct the constitutional violation found by the
court.”). Where, as here, petitioner has a viable appellate procedure,
release is not warranted.
IT IS, THEREFORE, BY THE COURT ORDERED petitioner’s second motion
for immediate release (Doc. #25) is denied.

IT IS SO ORDERED.
DATED:

This 15th day of February, 2017, at Kansas City, Kansas.

s/ John W. Lungstrum
JOHN W. LUNGSTRUM
U.S. District Judge