Ott v. United States Board of Parole, Civ. A. No. 18971-3.
Citation | 324 F. Supp. 1034 |
Decision Date | 04 January 1971 |
Docket Number | Civ. A. No. 18971-3. |
Parties | Frederick E. OTT, Jr., Petitioner, v. UNITED STATES BOARD OF PAROLE, Respondent. |
Court | U.S. District Court — Western District of Missouri |
Frederick E. Ott, Jr., pro se.
No response required from respondent.
ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION FOR MANDAMUS WITHOUT PREJUDICE
In his prior petition in this Court for federal habeas corpus, petitioner, a federal convict confined in the United States Medical Center for Federal Prisoners, complained that he had been arbitrarily denied a parole by the United States Board of Parole. Following the rule of the decision in this Court in Langston v. Ciccone (W.D.Mo.) 313 F. Supp. 56, it was ruled that petitioner herein did not thereby state any claim in habeas corpus against his custodian in this district, the Director of the United States Medical Center. Petitioner's claim, if any, was that of an abuse of discretion by the United States Board of Parole. Therefore, the petition was denied on November 10, 1970, without prejudice to petitioner's bringing an appropriate action against the Board of Parole in the proper venue, the federal district court for the District of Columbia. Ott v. Ciccone (W.D.Mo.) 326 F. Supp. 609.
The above prior petition had been filed as a habeas corpus or declaratory judgment in the United States District Court for the District of Columbia. Therein, petitioner contended that Section 4202 of Title 18, U.S.C., dictated his mandatory release after service of one-third of his sentence; that he was denied assistance of counsel during his parole eligibility hearing before the Board; that the Parole Board acted contrary to the weight of the evidence in denying him a parole; and that "prejudiced reports" which were "uncontested and uncross examined" might have been used against him. Under § 1404(a), Title 28, U.S.C., and the rule of Young v. Director, United States Board of Parole, 125 U.S.App.D.C. 105, 367 F.2d 331, the United States District Court for the District of Columbia transferred the cause to this Court. See Ott v. Ciccone, supra. For the following reasons, as stated in the denial of the petition in this Court, the transfer, under the circumstances, may have been proper:
Therefore, the petition was denied on its merits for failure to state any right of petitioner to immediate release.
In denying the petition the Court concluded:
"For relief which only the Board of Parole can grant, petitioner should file a successive petition in the United States District Court for the District of Columbia."
Now, however, under date of December 21, 1970, petitioner has submitted in this Court, rather than in the United States District Court for the District of Columbia, a petition for mandamus seeking to compel the United States Board of Parole to grant him a parole. Therein, petitioner alleges that the Parole Board's denial of parole to him was "arbitrary, and capricious, and an abuse of discretion." In support of this contention, petitioner has submitted copies of letters of persons who have observed him during his confinement, all of which commend him as a good and efficient worker. Further, petitioner alleges that, at his parole eligibility hearing, he was granted a "verbal parole grant, dated for June 10th, 1970," by "Mr. Walter Dunbar, Parole Hearing Member," but that "on March 20, 1970, the U.S. Board of Paroles, with Chairman George Reed and others present, reversed Mr. Walter Dunbar's decision of the original Parole Grant, and ordered that your petitioner continue his sentence to the expiration, which was some 20 months later." It is true that under some circumstances the remedy of mandamus may lie to correct an abuse of discretion. 52 Am.Jur.2d, Mandamus § 79, p. 401; Drew v. Lawrimore (C.A.4) 380 F.2d 479, cert. denied 389 U.S. 974, 88 S.Ct. 475, 19 L.Ed.2d 467, and cases therein cited; Sleeth v. Dairy Products Co. (C.A.4) 228 F.2d 165, 168, and cases therein cited; State Highway...
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