McNally v. Cooksey
| Decision Date | 16 December 1993 |
| Docket Number | No. 92-2181,92-2181 |
| Parties | NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit. Ronald MCNALLY, Petitioner-Appellant, v. Michael COOKSEY, ** Warden, United States Penitentiary, Marion, Illinois, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Southern District of Illinois, East St. Louis Division, No. 90 C 3275; William L. Beatty, Senior Judge.
Ronald McNally, proceeding pro se, appeals from the district court's order adopting the recommendation of the magistrate judge and denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2241. We affirm.
McNally asserts that the district court adopted the magistrate judge's recommendation without conducting a de novo review of the portions of the recommendation to which McNally had filed objections, in violation of 28 U.S.C. Sec. 636(b)(1)(C). Relying on Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983), McNally argues that the district court's failure to conduct a de novo review is demonstrated by the fact that the transcript of a hearing on all pending motions, which was held by the magistrate judge on September 18, 1990, was not prepared until two months after the district court had entered its order on April 8, 1992. This argument is without merit. Unlike the hearing in Hernandez, the magistrate judge's hearing was not evidentiary, and the parties did not argue the merits of the pending motions. Id. Hernandez thus is inapplicable here. The attached order of the district court reveals that it carefully considered each of McNally's objections and adopted the magistrate judge's report and recommendation only after reviewing the record de novo. Therefore, the district court did not violate 28 U.S.C. Sec. 636(b)(1)(C).
McNally asserts that the district court also violated 28 U.S.C. Sec. 636(b)(1)(C) by failing to consider his objection concerning his claims that he was denied due process of law in disciplinary proceedings of the Bureau of Prisons ("BOP"). This argument fails because the district court adopted the report and recommendation of the magistrate judge, which found McNally's argument to be without merit. As the magistrate judge correctly observed, the United States Parole Commission ("USPC") may conduct an assessment of an inmate's behavior which is independent from prison disciplinary actions. See Levesque v. Brennan, 864 F.2d 515, 518 (7th Cir.1988). The USPC may consider all available information, including hearsay and offenses to which a defendant has not been charged, in making its determination. Kramer v. Jenkins, 803 F.2d 896, 900 (7th Cir.), on reh'g, 806 F.2d 140 (1986). De novo review did not require the district court to write separately to address such a frivolous argument.
McNally asserts that the district court erred in failing to conduct an evidentiary hearing concerning his claims under 28 U.S.C. Sec. 2243. The statute, however, does not establish an absolute right to an evidentiary hearing. 28 U.S.C. Sec. 2243. "To allow indiscriminate hearings in federal post-conviction proceedings, whether for federal prisoners under 28 U.S.C. Sec. 2255, or state prisoners under 28 U.S.C. Sec. 2241-2254, would eliminate the chief virtues of the plea system-speed, economy, and finality." Blackledge v. Allison, 431 U.S. 63, 71 (1977). We have held that a district court should dismiss a petition under 28 U.S.C. Sec. 2255 without a hearing "if it plainly appears from the facts of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Liss v. United States, 915 F.2d 287, 290 (7th Cir.1990) (citation omitted).
The record contains no basis which would entitle McNally to an evidentiary hearing. The district court and the magistrate judge persuasively explained why McNally is not entitled to a writ of habeas corpus in the attached orders. Although McNally asserts in conclusory fashion that the district court relied upon disputed issues of material fact in its ruling, McNally has failed to specify any genuine issue of material fact. In these circumstances, "[t]he district court was not required to unnecessarily expend the resources of the court and conduct an evidentiary hearing." Politte v. United States, 852 F.2d 924, 931 (7th Cir.1988).
McNally asserts that the district court's factual findings are unsupported by the evidence in the record. Our review of the record, however, reveals that the district court's findings are well-supported by the evidence, and we are without "the definite and firm conviction that a mistake has been committed." Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573 (1985) (citation omitted). The district court's findings thus are not clearly erroneous. Id.
McNally's assertions that (1) his placement in the United States Penitentiary in Marion, Illinois ("USP-Marion") was the result of the failure of the BOP to obtain documentation concerning his particular separation requirements (Pet. brief pp. 4-10, 23, 31-47); (2) in placing him at USP-Marion, the BOP improperly relied upon reports which were to be expunged (Pet. brief pp. 19-21); (3) the BOP was required, pursuant to 28 C.F.R. Sec. 2.55(b), to compile reports and other documents to be used by the USPC in making its parole determination (Pet. brief pp. 57-59); and (4) the USPC did not follow its regulations concerning disclosure to him of the reports and other documents it used in making its parole determination (Pet. brief pp. 59-62), were not raised in McNally's objections to the magistrate judge's report and recommendation, 28 U.S.C. Sec. 636(b)(1)(C), and therefore are waived for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 148 (1985); Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th Cir.1988).
McNally's remaining challenges that (1) he was unlawfully transferred from military custody to the custody of the BOP (Pet. brief p. 2); (2) the BOP failed to maintain adequate records concerning his prior military convictions (Pet. brief p. 1); (3) the USPC denied him due process of law in his parole determination proceedings (Pet. brief pp. 73-91); (4) he should not have been placed on waiver status from October 22, 1985 until his new application for parole in 1990 (Pet. brief pp. 52-57); (5) he was entitled to the appointment of counsel by the district court (Pet. brief pp. 25, 27-29); and (6) the military legal materials at USP-Marion are insufficient to guarantee his constitutional right of meaningful access to the courts (Pet. brief pp. 10, 22, 27, 30, 52), were thoroughly considered by the district court and properly rejected. Accordingly, we AFFIRM for the reasons stated by the district court and the magistrate judge in the attached orders.
JOHN CLARK, Warden, USP-Marion, Respondent.
Jan. 31, 1992
REPORT AND RECOMMENDATION
This matter is before the Court for ruling on inmate McNally's habeas corpus action. Ronald McNally is a military prisoner serving his sentence in the custody of the Bureau of Prisons at the United States Penitentiary in Marion, Illinois. McNally claims that the Bureau of Prisons failed to obtain records from the Department of the Army and deprived him of meaningful parole and classification determinations. McNally was granted leave to add due process challenges to a parole determination issued on March 9, 1990.
McNally is serving an aggregate 45-year term of imprisonment imposed by court-martial for conspiracy to murder, murder, conspiracy to escape, escape, larceny, and robbery. He was transferred from USP-Leavenworth to USP-Marion in 1982. He was in the custody of the Bureau of Prisons at the time he became eligible for parole on January 6, 1985. Because of his incarceration in a federal prison, his parole determination is made by the United States Parole Commission.
McNally applied for a parole determination on August 21, 1984. An initial parole hearing was scheduled for October, 1984. That hearing could not proceed because the regional parole office had not returned McNally's file to USP-Marion. A phone call to the regional office revealed that additional information was required before a pre-hearing assessment could be prepared. McNally's case was continued to the next docket, and his file was returned to the prison for a pre-sentence report with a note, "The file contains no information re: subject's offenses or background" (Doc. # 47, Exhs. 3, 4.)
After receiving the file, McNally's unit manager wrote to the Department of the Army requesting official versions of his offenses and disclosure privileges for McNally. This request produced a letter from the prosecuting attorney but nothing more (Doc. # 41, Exh. H).
The initial parole hearing was rescheduled for December, 1984. The hearing examiner reviewed McNally's mini-file and concluded that it contained insufficient information concerning his escape, larceny, and robbery offenses. The case was rescheduled for the February, 1985, docket but was continued again and once again on April 18, 1985. These continuances were due to insufficient information and because permission had not been received from the Army to disclose details to McNally pertaining to his offenses (Doc. # 47, Exhs. 6, 7; Doc. # 41, Exh. F).
On May 29, 1985, the Bureau of Prisons provided the hearing examiner with an initial pre-hearing packet, noting that authority to disclose the PSI had not been received from the military (Doc. # 41, Exhibit P). By June, 1985, the parole authorities had acquired enough...
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...1 at 42-43, 52-55). Moreover, the Commission has authority to assess the significance of an inmate's behavior. See e.g., McNally v. Cooksey, 14 F.3d 604 (7th Cir. 1993) (rejecting habeas petitioner's argument that the Commission's characterization of prison misconduct reports as new crimina......