Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division.
No. 92 C 90--Gene E. Brooks, Judge.
Before POSNER, Chief Judge, CUDAHY, Circuit Judge, and GRANT, District Judge. *fn*
William Phifer is an inmate moving to reopen a Petition for a Writ of Habeas Corpus. He originally filed a petition with the district court, alleging numerous errors in a parole revocation hearing. The district court located one error and conditionally granted his writ; the district court did not, however, address Phifer's remaining claims. Instead, the district court directed that the writ of habeas would issue unless the Parole Commission ordered and scheduled a new parole revocation hearing. Phifer essentially contends that a full revocation hearing, as contemplated by the district court's order, was never held. Because the Parole Commission did not accord Phifer a full second hearing, the district court's original failure to address all of Phifer's claims became a problem; a number of Phifer's claims have never been addressed. In its order denying Phifer's motion for lack of jurisdiction, the district court failed to address this allegation. We therefore vacate and remand.
In 1977, William Phifer was sentenced to 24 years in prison for crimes relating to his involvement in a bank robbery. In 1989, after serving 12 years of his sentence, Phifer was released on parole. His release was short-lived. Less than one year later, the authorities took Phifer back into custody in light of a number of considerations, among them suspected drug use, violence and involvement in another armed robbery.
The Parole Commission ultimately revoked Phifer's parole, citing three considerations. First, the Commission found that Phifer had engaged in criminal mischief in the third degree because he had been arrested and charged with assault. Second, the Commission determined that evidence suggested that Phifer had used dangerous and habit forming drugs. Third, the Commission found that Phifer had violated a parole condition that required his participation in counseling services for his drug use. The hearing examiners made no finding regarding Phifer's alleged involvement in the armed robbery. After the hearing, however, the Regional Commissioner recommended that Phifer should be held responsible for the robbery as well.
Phifer first appealed his parole revocation to the National Appeals Board, exhausting his administrative remedies. Phifer then filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. sec. 2241. In this petition, Phifer made four separate allegations: 1) that he had been denied prehearing disclosure of police reports which the Commission relied upon in reaching its decision, in violation of 28 C.F.R. 2.50(d); 2) that his offense severity had been calculated in reliance on erroneous information; 3) that the United States Parole Commission violated his due process rights in failing to hold a local revocation hearing; and 4) that the Federal Bureau of Prisons violated his due process rights in moving him to another district while a revocation hearing was pending. The District Court agreed with Phifer, at least as to the first of his claims, finding that:
Phifer has established without contradiction the nondisclosure of the New York police reports, which bear a critical relation to the armed robbery finding. The respondent has established merely that these reports were among the materials received at his institution--not that Phifer and his counsel were permitted to examine them. In fact, Phifer contends that the reports were not even permitted to be inspected at the revocation hearing itself and has demonstrated that the Parole Commission subsequently refused to disclose the reports in a Freedom of Information Act request.
This finding pretermits consideration of Phifer's other claims. He is entitled to a new hearing. The writ the petitioner seeks shall therefore issue on this basis, unless within sixty (60) days the Parole Commission orders and schedules a new hearing consistent with this entry. Jan. 6, 1993 Order (emphasis added).
Accordingly, the Commission held a second revocation hearing. The record fails to indicate exactly what transpired at this second hearing. In short, it is not evident whether the Parole Commission conducted a full revocation hearing the second time around. Phifer contends that although the Parole Commission disclosed the previously-omitted police reports, the Commission refused to address any other matters. He suggests that the second hearing provided by the Parole Commission therefore failed to comply with the district court's order. The State, of course, asserts that the second hearing fully complied with the district court's mandate. Whatever happened at this second hearing, its outcome was the same as the first: Phifer's sentence was reinstated.
Not surprisingly, Phifer again complained to the district court. Specifically, he filed a Motion to Reopen his original Petition for a Writ of Habeas Corpus. He essentially complained that some of his claims got lost in a paper shuffle; that is, he suggests that the combination of proceedings between the district court and the Parole Commission resulted in an ultimate failure to address all of his claims. In his view, the district court's order commanded a complete rehearing of his parole revocation (not merely a rehearing for the purposes of disclosing the previously omitted police reports). Since he believed that he would receive a complete rehearing of his revocation, he did not complain about the district court's failure to address every claim originally asserted in the first habeas petition. Phifer became concerned, however, when ...