Geraghty v. United States Parole Comm., Civ. No. 76-1467.
Decision Date | 24 February 1977 |
Docket Number | Civ. No. 76-1467. |
Parties | John M. GERAGHTY, Individually and on behalf of a class, Petitioner, v. UNITED STATES PAROLE COMMISSION et al., Respondents. |
Court | U.S. District Court — Middle District of Pennsylvania |
Kenneth N. Flaxman, Chicago, Ill., and Waring R. Fincke, Montoursville, Pa., for petitioner.
George W. Calhoun, Chief, Special Litigation Section, Crim. Div., Dept. Justice, Patrick J. Glynn, Atty., Dept. Justice, Washington, D. C., S. John Cottone, U. S. Atty., M. D. Pennsylvania, Scranton, Pa., Joseph F. Cimini, Asst. U. S. Atty., M. D. Pennsylvania, Lewisburg, Pa., for respondents.
Petitioner, John M. Geraghty, is presently an inmate at the Federal Community Treatment Center, Chicago, Illinois,1 serving a 30 month sentence2 imposed by the United States District Court for the Northern District of Illinois for the offenses of conspiracy to commit extortion, 18 U.S.C. § 1951, and false declarations to a grand jury, 18 U.S.C. § 1623. On appeal, petitioner's conviction was affirmed. United States v. Braasch, 505 F.2d 139 (7th Cir. 1974). Certiorari was denied by the United States Supreme Court, 421 U.S. 910, 95 S.Ct. 1561, 43 L.Ed.2d 775 (1975).
On September 15, 1976, petitioner, through retained counsel, filed this action in the United States District Court for the District of Columbia. By order dated November 12, 1976, the Honorable Joseph C. Waddy construed the action as a petition for a writ of habeas corpus and transferred the action to this Court. This Court issued a rule to show cause (Document 5, filed December 7, 1976) in response to which respondent has filed an answer and petitioner has filed a motion for summary judgment and a brief in support thereof. Respondent has opposed petitioner's motion for summary judgment. Because the issues presented are issues of law, no evidentiary hearing is required. 28 U.S.C. § 2243; de-Vyver v. Warden, U. S. Penitentiary, 388 F.Supp. 1213 (M.D.Pa.1974). Thus, the case is ripe for disposition.
The substantive issues raised by Geraghty's petition concern the decision of the United States Parole Commission not to release him on parole. From the record before the Court, it appears that in June 1976, petitioner was considered for parole. 28 C.F.R. § 2.14 (1976). Petitioner's case was designated an "original jurisdiction" case referred to the National Commissioners for decision. 28 C.F.R. §§ 2.17 and 2.13(b) (1976). On July 7, 1976, the National Commissioners denied parole and continued petitioner until the expiration of his term for the stated reasons that:
Petitioner appealed to the National Appeals Board, 28 C.F.R. § 2.27 (1976), which, on October 19, 1976, affirmed the decision of the National Commissioners.
As noted above, Judge Waddy construed this action as a habeas corpus action.3 Nevertheless, petitioner has persisted in asserting that there is a separate declaratory and injunctive aspect to the case, jurisdiction for which is alleged under 28 U.S.C. §§ 1331 and 1361.4 The Court concurs in Judge Waddy's reading of the complaint and finds petitioner's contention to be completely without merit. The gist of petitioner's action is a challenge to the Parole Commission and Reorganization Act (PCRA),5 the guidelines promulgated by the Commission,6 and the Parole Commission's decision denying petitioner's release on parole. As such, the action presents a claim that petitioner is "in custody in violation of the Constitution or laws . . . of the United States . . ." 28 U.S.C. § 2241(c)(3). The "declaratory" and "injunctive" relief sought by petitioner against the Parole Commission is, in effect, a request for a ruling that petitioner is entitled to release on parole.7 Thus, the action falls squarely within the class of cases for which habeas corpus is the exclusive remedy. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see Gerstein v. Pugh, 420 U.S. 103, 107 n.6, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Wolff v. McDonnell, 418 U.S. 539, 554-555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974); United States ex rel. Marrero v. Warden, Lewisburg Penitentiary, 483 F.2d 656, 659-660 (3d Cir. 1973), rev'd on other grounds, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974); Battle v. Norton, 365 F.Supp. 925 (D.Conn.1973); cf. Ricketts v. Ciccone, 371 F.Supp. 1249 (W.D.Mo.1974). Consequently, 28 U.S.C. § 2241 provides the sole jurisdictional basis for this action.
Petitioner purports to bring this habeas corpus action as a class action.8 The complaint contains class allegations, and a motion to certify the class was filed with the complaint in the United States District Court for the District of Columbia. That motion was not acted upon by Judge Waddy and is presently before this Court. Petitioner has pressed for, and respondents have opposed, certification before both the United States District Court for the District of Columbia and this Court.
For the reasons stated in United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1125 (2d Cir. 1974), cert. denied 421 U.S. 921, 95 S.Ct. 1587, 43 L.Ed.2d 789 (1975), the Court holds that Rule 23 of the Federal Rules of Civil Procedure is not applicable to a petition for a writ of habeas corpus. Accord Bijeol v. Benson, 513 F.2d 965, 968 (7th Cir. 1975); but see Williams v. Richardson, 481 F.2d 358, 361 (8th Cir. 1973); Mead v. Parker, 464 F.2d 1108 (9th Cir. 1972); Adderly v. Wainwright, 58 F.R.D. 389 (M.D. Fla.1972). Despite the technical nonapplicability of Rule 23, procedures analogous to a class action have been fashioned in habeas corpus actions where necessary and appropriate. United States ex rel. Sero v. Preiser, supra; Bijeol v. Benson, supra; see Williams v. Richardson, supra; Mead v. Parker, supra; Adderly v. Wainwright, supra.
In this case, class certification is neither necessary nor appropriate. Petitioner contends that class certification is necessary to ensure that the legal issues presented do not evade appellate review. This contention is based on petitioner's concern that his sentence will expire and thereby moot any appeal from this Court's decision. The motion for class certification represents petitioner's attempt to structure his suit to fit into the exception to the mootness doctrine enunciated in Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975); see e. g., Gerstein v. Pugh, supra, 420 U.S. at 110 n.11, 95 S.Ct. 854. However, the possibility of mootness on appeal is not a proper consideration for determining whether or not the action should be maintained as a class action. Cf. Rule 23 of the Federal Rules of Civil Procedure, 28 U.S.C. ( ). The issues petitioner raises may be litigated without the presence of a class.
Class certification is inappropriate for several reasons. Two of the issues raised—the Commission's characterization of petitioner's offense as extortion and access to certain Commission files—relate solely to petitioner's individual case and have no class-wide applicability.9Cf. LoCicero v. Day, 518 F.2d 783 (6th Cir. 1975). Another issue — the applicability of the guidelines, 28 C.F.R. § 2.20 (1976) to prisoners sentenced under 18 U.S.C. § 4208(a)(2) (1958) — is similarly inapplicable to all the members of the proposed class. The remaining issues — the constitutionality of the PCRA and the guidelines — do present questions of law common to the class; however, not all members of the class have the same interest as petitioner. For example, prisoners who are, or will be, paroled under the PCRA and the guidelines clearly do not have the same interest as petitioner in seeking to have the statute declared unconstitutional. Thus, petitioner's claims are not typical of those of the proposed class. Cf. Rule 23(a)(3) of the Fed.R.Civ.P.; see Sosna v. Iowa, supra 419 U.S. at 403 and n.13, 95 S.Ct. 553. Furthermore, this Court does not have habeas corpus jurisdiction over all the members of the proposed class. Fitzgerald v. Sigler, 372 F.Supp. 889, 899 (D.D.C.1974); see Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973) ( ); but see United States ex rel. Sero v. Preiser, supra at 1127-1130.
Consequently, petitioner's motion for class certification will be denied.
Petitioner's pleadings present a broad attack on both the PCRA and the guidelines authorized by the statute. Petitioner claims that the PCRA is "facially" unconstitutional (Complaint, paragraph 5(b)(1)) because it vests the Parole Commission with the power to make deferred sentencing decisions, i. e. determinations of "just punishment," without proper due process safeguards and in violation of the constitutional ex post facto prohibition (Complaint, paragraphs 23 and 24). Petitioner apparently attacks the guidelines, 28 C.F.R. § 2.20 (1976) for the same reason (Document 14 at 35) and for the additional reason that the guidelines permit the Parole Commission to "superimpose upon federal criminal law a system of `flat time sentencing'" (Document 14 at 16).
Petitioner's contentions equating parole and parole decision-making with sentencing reflect a misconception as to the nature of parole. There are "clear differences" between parole and sentencing. United States ex rel. Marrero...
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