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MCCLAIN v. UNITED STATES DOJ

August 19, 1996

CLARENCE L. McCLAIN, Petitioner,
v.
UNITED STATES DEPARTMENT OF JUSTICE, UNITED STATES PAROLE COMMISSION, THE FEDERAL BUREAU OF PRISONS, and J.J. CLARK, Warden, Terre Haute, Indiana, Respondents.



The opinion of the court was delivered by: ALESIA

 Before the court are petitioner Clarence L. McClain's ("McClain") amended petition for habeas corpus pursuant to 28 U.S.C. § 2241 and motion for reconsideration. For the reasons that follow, the court denies McClain's petition and motion.

 I. BACKGROUND

 In July 1989, McClain was convicted of a variety of federal offenses. The trial judge, Judge Rovner, now sitting on the Seventh Circuit Court of Appeals, sentenced McClain to eight years' imprisonment followed by five years' probation, and ordered McClain to pay a $ 550 special assessment and $ 35,000 as restitution. On appeal, the Seventh Circuit reversed several of McClain's convictions, but upheld conviction on six counts, and remanded the case for re-sentencing. United States v. McClain, 934 F.2d 822 (7th Cir. 1991).

 On February 24, 1992, Judge Rovner imposed the same sentence. Two days later, on February 26, 1992, she corrected the sentence and ordered that McClain pay a $ 35,000 fine, rather than $ 35,000 in restitution. On appeal, the Seventh Circuit affirmed the sentence. United States v. McClain, 2 F.3d 205 (7th Cir. 1993).

 McClain was paroled on March 9, 1993. Between March 1993 and March 1995, McClain did not make substantial payments towards his $ 35,000 fine. On February 22, 1995, the United States Probation Office filed a special report to request a rule to show cause why McClain's probation should not be revoked for failure to pay his fine. The government then filed a rule to show cause why McClain's probation should not be revoked.

 The Probation Office also sent a letter to the United States Parole Commission, informing the Parole Commission that McClain had failed to make substantial payments towards his fine. The conditions of McClain's parole required him to make a diligent effort to satisfy any fine that had been imposed by the court.

 On March 29, 1995, a representative of the Parole Commission interviewed McClain. On May 3, 1995, the Parole Commission sent McClain a letter indicating that the Regional Commissioner had found probable cause to believe that McClain had violated the conditions of his release because he had failed to pay the court-imposed fine.

 As set forth in a special report dated June 13, 1995, the Parole Commission determined that McClain had violated the conditions of his parole by failing to make good faith efforts to pay the fine, and revoked his parole. McClain surrendered and was incarcerated on June 7, 1995. He was released from prison on February 7, 1996.

 II. DISCUSSION

 A. Motion for reconsideration

 McClain moves the court to reconsider its order of January 26, 1996, instructing the government to answer or otherwise plead to McClain's petition within 20 days of the date of the order. Though it is difficult to discern from his motion, it appears that McClain wants to file a second amended petition for a writ of habeas corpus, and thus does not want the government to respond to the amended petition.

 The court does not perceive a need for McClain to file a second amended habeas corpus petition. McClain points out that his amended petition contains typographical errors and omissions. However, most of the errors are minor, and the court can understand the gist of the amended petition. One paragraph in the amended petition is unintelligible, but McClain corrected that paragraph in his motion for reconsideration and his reply to the government's response to his petition. (See Mot. for Reconsideration at 6; Petitioner's Traverse of United States' Resp. in Opp. to Def.'s Mot. Pursuant to 28 U.S.C. § 2255 (hereinafter "Pet.'s Reply to Govt.'s Resp. to Pet.'s Am. Pet. for Writ of Habeas Corpus") at 10-11.)

 McClain also argues that he wishes to add new information to a second amended petition. However, the information that he sets forth in his motion for reconsideration, for the most part, is already set forth in either the amended petition or his reply to the government's response to the petition. McClain has submitted a total of 42 pages of briefs to the court, and in those pages has supplied the court with more than enough information to decide his habeas corpus petition. The information that McClain wants to add in another petition would not affect this court's decision on his petition, because the court can decide his petition as a matter of law based on information now before it.

 Finally, McClain argues that granting his motion for reconsideration would not prejudice the government. However, the court notes that the government filed its response, with numerous exhibits, to McClain's amended habeas corpus petition 10 days before McClain filed his motion for reconsideration. Thus, the government ...


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