THOMPSON v. D'ILIO

Filing 26

MEMORANDUM AND ORDER that Petitioner's Unopposed 23 Motion for Clarification is granted insofar as directing the Clerk to file ECF No. 17 as a petition in a new and separate habeas proceeding under a newly issued docket number. Summons shall not issue in the new proceeding at this time, as the Court has not yet completed its sua sponte screening. Petitioner's 25 Motion to Compel is denied. The Clerk shall docket this Memorandum and Order on the dockets of both 13-cv-6282 and the newly created action. The Clerk shall serve a copy of this Memorandum and Order upon Petitioner by regular U.S. mail. Signed by Judge Freda L. Wolfson on 3/28/2018. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RICHARD THOMPSON,
Petitioner,
v.
STEPHEN D’ILIO,
Respondent.
RICHARD THOMPSON,
Petitioner,
v.
STEPHEN JOHNSON,
Respondent.

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Civil No. 13-6282 (FLW)

MEMORANDUM AND ORDER

Civil No.

(FLW)

Petitioner pro se, Richard Thompson (“Thompson” or “Petitioner”), is a federal prisoner
presently incarcerated by special arrangement at New Jersey State Prison, in Trenton, New
Jersey. In October 2013, Thompson filed a petition for writ of habeas corpus, under 28 U.S.C. §
2241, alleging that the United States Parole Commission (“Parole Commission”) violated his due
process rights under the Fifth Amendment by failing to set a final parole date and by imposing a
sex-offender special condition on any eventual parole. (See Pet., ECF No. 1.) Shortly after he
filed his Petition, Thompson filed a request to supplement his petition, in which he sought a new
parole hearing because of the Parole Commission’s alleged withholding of a letter opposing
parole submitted by the Bureau of Prisons (“BOP”). (ECF No. 2.) On October 27, 2016, the
Court denied Thompson’s original Petition, administratively terminated the proceeding under
Local Civil Rule 10.1(a), and gave Thompson 30 days to update his address and notify the Court

whether the claim in his supplement had become moot in light of subsequent parole hearings.
(Op. & Order, ECF Nos. 9–10.)
Thompson timely filed a motion to reopen the proceeding, arguing that his supplemental
claim was not moot as he had still not seen or been given an opportunity to respond to the BOP
letter opposing his parole. (ECF No. 11.) On June 23, 2017, the Court reopened the proceeding
and ordered respondent Steven D’Ilio (“Respondent”) to file an Answer to Thompson’s
supplemental petition within 30 days. (Mem. & Order, ECF No. 18.) The Court directed
Respondent to include with the answer “the relevant record, including the BOP letter.” (Id. ¶ 5.)
The Court further permitted Thompson to file a reply to Respondent’s answer within 30 days of
receipt. (Id.) At that time, the Court also noted that Thompson had recently filed, as ECF No.
17, a seemingly new habeas petition based on a 2016 parole hearing. (Id. ¶ 6.) The Court
advised, “To the extent Petitioner wishes to challenge his July 2016 parole hearing, he must
exhaust his administrative[] remedies with respect to the claims regarding his 2016 parole
proceedings. Furthermore, he must bring those claims in a new habeas proceeding, and may not
tack them on to the instant habeas proceeding.” (Id.)
Since that Order, Respondent filed a Supplemental Memorandum in Opposition to the
Supplemental Petition and accompanied it with 116 pages of administrative record. (ECF Nos.
22, 22-2.) This administrative record includes two letters from the BOP to the Parole
Commission, dated March 3, 2011 and April 9, 2013. (ECF No. 22-2 at ECF pp. 112–15.) In
each letter, apparently responding to pre-hearing letters from the Parole Commission inviting
BOP input, the BOP Director expressed opposition to paroling Thompson based on his crimes
committed while in BOP custody. (Id.) Thompson subsequently filed a reply to Respondent’s
opposition. (ECF No. 24.)

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Meanwhile, Thompson has filed two motions, which the Court now addresses. On
August 9, 2017, Thompson filed what he titled a “Motion for Clarification.” (ECF No. 23.)
Thompson asserted that his June 15, 2017 filing, docketed as ECF No. 17, was in fact intended to
be a new habeas petition commencing a separate action. (ECF No. 23 at 2.) Thompson urges
that the new petition impleaded a different defendant, that he included a cover letter explaining
his intent, and that he had paid the appropriate filing fee, but that the new petition was instead
docketed in this proceeding. (Id. at 2–3.) Accordingly, he asks the Court to issue an Order to
Show Cause why the new petition should not be granted and asks that a separate docket number
be assigned to it. (Id. at 3.) Respondent has offered no opposition to this motion.
The Court observes that the filing docketed as ECF No. 17 does indeed appear to be
formatted as a new petition, not a filing in this proceeding, and, furthermore, it is clear that
Thompson paid an additional filing fee around the time of that filing. (See ECF No. 17.)
Accordingly, the Court finds that it should be treated as an independent pleading, that it should
be assigned a new docket number, and that the new proceeding should be treated in all regards as
if it was properly commenced on June 15, 2017.
Thompson’s second motion is a motion to compel discovery from Respondent. (ECF No.
25.) Specifically, while Thompson acknowledges that Respondent produced the letters from the
BOP to the Parole Commission opposing Thompson’s parole, he alleges that Respondent
violated the Court’s June 23, 2017 Memorandum and Order by failing to produce letters from the
Parole Commission to the BOP soliciting its input. (ECF No. 25 ¶¶ 1–4.) Thompson now asks
the Court to compel production of these letters, “as they are an essential part to Petitioner’s
claim.” (ECF No. 25 ¶ 4.) Again, Respondent has offered no opposition to this motion.

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Discovery in a habeas proceeding is permitted only for good cause and only to the extent
authorized by the Court. Rules Governing § 2254 Cases, Rule 6(a), 28 U.S.C.A. foll. § 2254
(applying to this case through Rules Governing § 2254 Cases, Rule 1(b)). The Court’s June 23,
2017 Memorandum and Order directed Respondent to answer Thompson’s supplemental petition
and to “provide the relevant record, including the BOP letter.” (ECF No. 18 ¶ 5.) In his
response memorandum, counsel for Respondent certifies that he “ha[d] been informed by the
United States Parole Commission that these documents [the 116-page administrative record
attached to the response] represent Thompson’s entire file since 2012, with the exception of
audio recordings of his various parole hearings.” (Decl. of David Bober, ECF No. 22-1, ¶ 3.)
Accordingly, as it does not appear that any letters from the Parole Commission to the BOP
soliciting input were before the Parole Commission when it rendered its prior parole decision,
such letters are not part of the “relevant record,” which the Court ordered Respondent to
produce. Furthermore, it does not appear that such letters could bear on Thompson’s dueprocess rights if they were not before the Parole Commission at the time of its decision. As such,
Thompson’s motion to compel production is denied.
Therefore, IT IS, on this 28th day of March, 2018,
ORDERED that Petitioner’s unopposed Motion for Clarification, (ECF No. 23), is hereby
GRANTED insofar as directing the clerk to file ECF No. 17 as a petition in a new action; and it
is further
ORDERED that the Clerk shall docket the filing entered as ECF No. 17 in Civ. No. 136282, and its attachments and its associated filing fee, as the petition in a separate habeas
proceeding under a newly issued docket number; and it is further

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ORDERED that this newly created proceeding shall be treated for all purposes as if
commenced on the date Petitioner filed ECF Number 17, June 15, 2017; and it is further
ORDERED that SUMMONS SHALL NOT ISSUE in the new proceeding at this time,
as the Court has not yet completed its sua sponte screening under Rule 4 of the Rules Governing
§ 2254 proceedings (applying to the new proceeding through Rule 1(b) of the Rules Governing §
2254 Cases); and it is further
ORDERED that Petitioner’s Motion to Compel, (ECF No. 25), is DENIED; and it is
further
ORDERED that the Clerk shall docket this Memorandum and Order on the dockets of
both Civ. No. 13-6282 and the newly created action described above; and it is finally
ORDERED that the Clerk shall serve a copy of this Memorandum and Order upon
Petitioner by regular U.S. mail.

s/Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge

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