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Phifer v. Clark

June 3, 1997

WILLIAM PHIFER, PETITIONER-APPELLANT,

v.

JEFFREY J. CLARK, WARDEN, UNITED STATES PENITENTIARY, TERRE HAUTE, INDIANA, RESPONDENT-APPELLEE.



Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. TH 92-90-C Gene E. Brooks, Judge.

Before POSNER, Chief Judge, and CUDAHY, Circuit Judge, and GRANT, District Judge. *fn**

CUDAHY, Circuit Judge.

SUBMITTED December 30, 1996 *fn*

DECIDED JUNE 3, 1997

This is a successive appeal with respect to a habeas petition filed under 28 U.S.C. sec. 2241. The original petition alleged numerous errors in William Phifer's parole revocation hearing. After an appeal the matter was remanded for further proceedings. The petitioner now contends in this second appeal that those errors were not adequately addressed by either the Parole Commission or the district court. Although Phifer is now on parole, he contends that, unless the alleged errors in the Parole Commission records are corrected, he will suffer adverse legal consequences in future parole-related proceedings. Because we find that the issues presented by the petitioner are moot, we affirm the district court's dismissal of the habeas petition.

I. Factual Background

In 1977, William Phifer was sentenced to 24 years in prison for crimes related to a bank robbery. He was released on parole in 1989 but his parole was revoked within a year for suspected drug use, violence and participation in another armed robbery. At the hearing the U.S. Parole Commission held to order the revocation, the panel made no finding regarding Phifer's involvement in this later armed robbery. After the hearing, the regional commissioner recommended (and the Commission agreed) that Phifer be held responsible for the armed robbery based on a report by a probation officer, which implicated Phifer in the robbery.

After exhausting his administrative remedies, Phifer petitioned for a writ of habeas corpus under 28 U.S.C. sec. 2241. He alleged that: 1) he was denied access to police reports upon which the Parole Commission relied; 2) his offense severity rating *fn1 was based on erroneous information; 3) he was refused a local parole revocation hearing in violation of his right to due process and 4) his transfer to a new prison violated his right to due process. The district court determined, at least as to the first of his claims, that Phifer was entitled to a new hearing. At Phifer's second parole hearing the Parole Commission focused on the police reports previously denied to Phifer, but did not address any of his other claims. The Parole Commission determined at the close of Phifer's second hearing that the parole revocation was proper. Phifer filed a motion to reopen his original petition for a writ of habeas corpus and sought to require the Parole Commission to address the remaining claims. The district court denied this motion on the grounds that the original order was final and that, due to Phifer's transfer into another jurisdiction, the district court did not retain jurisdiction over Phifer's petition. Phifer appealed and we determined that the district court had in fact retained jurisdiction and that the remainder of Phifer's claims should be addressed. See Phifer v. Warden, United States Penitentiary, Terre Haute, Indiana, 53 F.3d 859 (7th Cir. 1995).

On remand, the district court directed Phifer to specify those claims that remained unresolved and what procedures Phifer felt should be undertaken by the parties or by the court. Phifer responded that two claims remained unresolved: 1) whether his offense severity rating had been incorrectly calculated by the Parole Commission and based on erroneous information in violation of due process, and 2) whether the Parole Commission acted in bad faith and in violation of Phifer's due process rights by denying him a local revocation hearing, at which Phifer could call witnesses. Phifer also reiterated what he felt was the underlying deficiency giving rise to the two claims cited: that the Parole Commission had failed to find by "satisfactory evidence" that Phifer had participated in the armed robbery. 28 C.F.R. sec. 2.44(a).

Warden Clark contends that Phifer has failed to indicate why the evidence was insufficient, or explain how a local revocation hearing would have altered the results in his favor. Instead, the warden argues, Phifer has proffered only conclusory allegations of Parole Commission error.

By November, 1995, the district court had yet to address Phifer's claims. Phifer's presumptive parole date was May 24, 1996 and Phifer was, in fact, paroled for the second time on that date. In July, 1996, Warden Clark filed a motion to dismiss the habeas petition as moot because Phifer had been paroled. While Phifer argued that he retained a legal interest in having the issues decided on the merits, the district court nevertheless dismissed Phifer's habeas petition as moot. This appeal challenging mootness followed.

Phifer contends that two issues from the original habeas petition have never been addressed and remain open. These are whether Phifer was entitled to a local revocation hearing where he could have called witnesses and confronted the evidence against him and whether the Parole Commission met the preponderance of the evidence standard in determining Phifer's participation in the armed robbery while on parole the first time. 28 C.F.R. sec. 2.19(c).

Phifer further argues that his habeas petition is not moot because these unresolved issues lead to three adverse consequences. First, Phifer's parole expires on April 8, 2001. Phifer contends that if he violates a provision of parole before then, the Parole Commission's finding holding him responsible for armed robbery while on his first parole would be considered a "failure to adjust to previous periods of parole supervision." U.S. Parole Comm'n. R. & Procedures Manual 2.20-05(b)(4) (1995). Such a determination would hamper Phifer's obtaining early termination of parole.

Second, Phifer contends that the finding of armed robbery will adversely affect his parole proceedings. After two years on parole Phifer's case will be reviewed for early termination. 28 C.F.R. sec. 2.43(b). At that time the armed robbery will be considered an aggravating ...


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