Opinion
02 Civ. 4913 (DLC) (DF)
July 16, 2003
MEMORANDUM AND ORDER
Pro se petitioner Eric Carlisle Martinson ("Petitioner") has filed a petition pursuant to 28 U.S.C. § 2241 for a writ of habeas corpus, which has been referred to me by the Honorable Denise L. Cote for a report and recommendation. As a preliminary matter, this Order addresses two pending motions filed by Petitioner: one, to supplement the record with certain documents, and the other, to compel the production of a certain audio tape. For the reasons set forth below, the motion to supplement the record is hereby granted in part and denied in part, and the motion to compel is hereby granted.
BACKGROUND
The petition in this action, dated October 24, 2001 ("Pet."), challenges the denial of Petitioner's parole by the United States Parole Commission (the "Commission," or "Respondent"). Liberally construed, it appears to assert that Petitioner is entitled to habeas relief because the Commission abused its discretion in making the parole determination.
See Simmons v. Abruzzo, 49 F.3d 83, 87 (2d Cir. 1995) ("[t]he complaint of a pro se litigant is to be liberally construed in his favor") (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)); Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983) (where a petitioner is proceeding pro se and "lack[s] expertise," the Court "should review [his] habeas petition with a lenient eye").
Petitioner also appears to base his claim for habeas relief on the alleged failure of the United States Parole Commission's National Appeals Board ("Appeals Board") to act upon his administrative appeal of the denial. The remedy for such an injury, however, is not a writ of habeas corpus, but rather a writ of mandamus to compel the Appeals Board to act. See Heath v. U.S. Parole Comm'n, 788 F.2d 85, 89-90 (2d Cir. 1986). In any event, Petitioner's request that the Court order the Appeals Board to act is now moot, because the Board denied Petitioner's appeal on November 28, 2001. (See Declaration of Douglas W. Thiessen, dated September 12, 2002 ("Theissen Decl."), Ex. J; see also Prescott v. U.S. Parole Comm'n, No. 89 CV 2607 TCP, 1990 WL 34698, at *1 (E.D.N.Y. Mar. 9, 1990) (where dispositional review was performed subsequent to filing of petition to compel such review, there was no case or controversy, thus petitioner's request for review was moot) (citing Weinstein v. Bradford, 423 U.S. 147 (1975)).)
Specifically, Petitioner contends that a sentence he received in 1993, in connection with drug trafficking that took place between 1987 and 1992 and which he finished serving in January 2001 (the "1993 sentence"), is sufficiently "related" to the sentence he is currently serving, received in 1994 for a 1985 incident of drug possession (the "1994 sentence"), to entitle him to credit for time served under the Commission's parole guidelines, and that by refusing to follow its guidelines and provide him with such credit, the Commission abused its discretion. (See Pet. at 2.) Respondent filed its opposition to the petition on September 13, 2002 (Dkt. No. 7), and Petitioner filed a reply on September 25, 2002 (Dkt. No. 8) ("Pet'r Reply").
In his reply, Petitioner requests that, if the Court declines to order his release on parole, it should, "alternatively, appoint Petitioner counsel and hold a hearing to decide whether to issue the Writ." (Pet'r Reply at 4.) Petitioner does not, however, make any showing as to why he should be afforded the assistance of counsel in this case. If Petitioner wishes to seek appointment of counsel, he should file a separate application for that purpose. (See infra at 7-8.)
Respondent then submitted a short additional brief on October 2, 2002, to which Petitioner again filed a reply, on October 11, 2002 (Dkt. No. 9). The matter is now fully briefed, and pending before this Court for a report and recommendation.
In addition to his petition, Petitioner has also filed two motions: (1) an October 17, 2002 motion to supplement the record with certain documents ("Mot. to Supplement"), to which the Commission has declined to respond (see Letter to the Court from Judd C. Lawler, Esq., dated October 25, 2002 ("10/25/02 Lawler Ltr. ")); and (2) a December 24, 2002 motion seeking to compel Respondent to produce the audio tape of Petitioner's December 18, 2002 parole hearing ("Mot. to Compel"), which the Commission has opposed (see Letter to the Court from Judd C. Lawler, Esq., dated January 2, 2003 ("1/2/03 Lawler Ltr.")). These motions are the subject of this Order.
A. The Motion to Supplement the Record
Petitioner moves to submit the following materials to supplement the record on habeas:
(1) an excerpt from the Complaint charging the crime for which he was sentenced in 1993; and (2) a document indicating that Petitioner did not receive an "interim" parole review hearing that had been scheduled for October 2002. For the reasons that follow, this motion is granted in part and denied in part.
The Commission's original denial of parole, dated May 19, 2001, includes the following statement: "As required by law, you have also been scheduled for a statutory interim hearing during October 2002." (Theissen Decl. Ex. H.) The Court assumes that this is the same hearing to which Petitioner refers in his motion as his "18 month review," which he asserts should have taken place on October 16, 2002. (See Mot. to Supplement at 2.)
1. The Complaint Underlying the 1993 Sentence
Petitioner asserts that the first proposed supplemental submission, the excerpt from the Complaint that predicated the 1993 sentence, "unequivocally demonstrates the cases in question are `related.'" (Mot. to Supplement at 1.) The excerpt contains several references to the 1985 incident that was the subject of the 1994 sentence, and, therefore, appears on its face to be relevant to Petitioner's claim that the 1993 sentence is "related" to the 1994 sentence. Although Petitioner was apparently unable to obtain and produce this Complaint (or the now-submitted portion thereof) earlier (see Pet'r Reply at 3 n. 1 (explaining that Petitioner did not submit the Complaint at that time "[b]ecause of time constraints," and indicating that he was taking steps to procure it so that he could "forward it to the Court")), he nonetheless cited specific passages from it in his reply to the Commission's opposition to his petition, so as to illustrate the alleged connection between the two sentences (see id. at 3-4).The Court has no reason to doubt that Petitioner was diligent in his efforts to secure and produce this document, and finds that Respondent would not be prejudiced by the inclusion of the document in the record of this habeas proceeding. Indeed, Respondent has claimed no such prejudice, having had a full opportunity to respond to Petitioner's arguments. Because (a) the document appears relevant, (b) Respondent had notice of Petitioner's arguments regarding the document even before Petitioner was able to produce it, and (c) Respondent would not be prejudiced by the Court's consideration of the document at this time, the Court will grant Petitioner's request that the Court accept the document to supplement the present record.
As noted above, Respondent filed an additional brief following Petitioner's reply (see supra at 2), and the Court will accept that sur-reply brief for consideration.
2. Confirmation that Petitioner Did Not Receive an Interim Parole Review Hearing on October 16, 2002
Petitioner's second proposed submission is a copy of his October 17, 2002 request for confirmation that the Commission "refused to docket or perform my 18 month review on October 16, 2002, according to policy." (Mot. to Supplement Ex. P-4.) The document bears a Case Manager's response to Petitioner's request, confirming that Petitioner's "name was not on the docket for yesterday's [October 16, 2002] hearings." (Id.) Petitioner seeks to introduce this document so as to "advise this Honorable Court that the Commission has denied the petitioner his 18 month review hearing." (Id. at 2.) According to Petitioner, "[t]hat `omission' . . . was a vicious scheme by the Commission in retaliation for the Petitioner's exercising his First Amendment rights in filing the instant § 2241 action." (Id.)
A claim that the Commission has acted in bad faith in failing to conduct a scheduled parole hearing may serve as the basis for a habeas petition. See Heath, 788 F.2d at 89-90 (citing cases). Although the document offered by Petitioner may be relevant to a bad faith claim, no such claim has been asserted in the petition as currently pleaded. Therefore, as Petitioner has not demonstrated that the document is relevant to the only claim that has been asserted, the motion to supplement the record with this additional document is denied. The denial, however, is without prejudice to Petitioner's right to seek leave to amend the petition to add a claim that the Commission acted in bad faith in failing to conduct the hearing in question. Should leave to so amend the petition be sought and granted, then the document may be made part of the record at that time.
B. The Motion to Compel Production of the Audio Tape
Petitioner also moves to compel the Commission to produce the audio tape of his December 18, 2002 parole hearing. Petitioner asserts that the same issues he has raised with respect to his April 5, 2001 hearing (presumably concerning whether his 1993 and 1994 sentences were related) were addressed at the December 18, 2002 hearing. Therefore, he contends that should be permitted "to review those tapes . . . and, if necessary, raise any relevant argument to this Court concerning what was said by the examiner on those tapes." (Mot. to Compel at 1.) Respondent opposes this motion, on the grounds that Petitioner has failed to satisfy the requirements of the Federal Rules of Civil Procedure with regard to the tape, in that he neither requested it directly from Respondent nor provided Respondent with notice of his intent to file the motion to compel its production. (See 1/2/03 Lawler Ltr.) Respondent further argues that, in any event, the tape is not relevant to this action, as it memorializes a 2002 hearing, whereas Petitioner's claim challenges a 2001 Commission decision. (See id.) For the reasons that follow, the motion to compel production is granted.
Respondent may be correct that Petitioner has failed to follow appropriate procedures to secure a copy of the tape. It is, however, "[t]he established policy of this Circuit to treat the procedural errors of pro se litigants with lenience." Rivalta v. Artuz, No. 96 Civ. 8043 (SAS), 1997 WL 214972, at *1 (S.D.N.Y. Apr. 28, 1997). Further, if, as Petitioner seems to suggest, a representative of the Commission made statements at the December 2002 hearing that support Petitioner's claim, then those statements would be relevant, regardless of when made. Under the circumstances, and in the interest of justice, the Court will grant the motion to compel production of the requested audio tape, except that the Court will require production of a certified transcript of the tape, in lieu of the tape itself. The Court will not, however, consider any aspect of that transcript unless and until Petitioner makes a further, particularized showing that it contains information relevant to this proceeding and should therefore be included as part of the record.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that:
(1) Petitioner's motion to supplement the record is GRANTED with respect to the Complaint (or any excerpt thereof) charging the crime for which Petitioner was sentenced in 1993.
(2) Petitioner's motion to supplement the record is DENIED with respect to the document submitted by Petitioner relating to his scheduled October 2002 interim parole hearing.
This denial, however, is without prejudice to Petitioner's right to seek leave to amend the petition to add a claim that the Commission acted in bad faith in failing to conduct that hearing, and to submit the document to the Court in connection with such a claim. Any such motion to amend the petition shall be served and filed not later than September 1, 2003.
(3) Petitioner's motion to compel production of the audio tape of Petitioner's December 18, 2002 parole hearing is GRANTED. Respondent shall produce a certified transcript of that tape not later than September 15, 2003.
(4) If Petitioner wishes to seek the appointment of counsel in connection with this habeas proceeding (see supra at 2 n. 3), then, not later than September 1, 2003, he should file a formal application for the appointment of counsel, including an explanation as to why he feels he needs an attorney, what steps he has taken to find an attorney on his own, and the nature of any special circumstances that exist in this case of which the Court should be aware in deciding the application.
SO ORDERED