Phifer v. Warden, U.S. Penitentiary, Terre Haute, Ind., 94-2566

Citation53 F.3d 859
Decision Date11 May 1995
Docket NumberNo. 94-2566,94-2566
PartiesWilliam PHIFER, Petitioner-Appellant, v. WARDEN, UNITED STATES PENITENTIARY, TERRE HAUTE, INDIANA, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Cheryl J. Sturm (argued), West Chester, PA, for petitioner-appellant.

Winfield D. Ong, (argued), Office of the U.S. Atty., Indianapolis, IN, for respondent-appellee.

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

CUDAHY, Circuit Judge.

William Phifer is an inmate moving to reopen a Petition for a Writ of Habeas Corpus. He originally filed a petition with the district court, alleging numerous errors in a parole revocation hearing. The district court located one error and conditionally granted his writ; the district court did not, however, address Phifer's remaining claims. Instead, the district court directed that the writ of habeas would issue unless the Parole Commission ordered and scheduled a new parole revocation hearing. Phifer essentially contends that a full revocation hearing, as contemplated by the district court's order, was never held. Because the Parole Commission did not accord Phifer a full second hearing, the district court's original failure to address all of Phifer's claims became a problem; a number of Phifer's claims have never been addressed. In its order denying Phifer's motion for lack of jurisdiction, the district court failed to address this allegation. We therefore vacate and remand.

I.

In 1977, William Phifer was sentenced to 24 years in prison for crimes relating to his involvement in a bank robbery. In 1989, after serving 12 years of his sentence, Phifer was released on parole. His release was short-lived. Less than one year later, the authorities took Phifer back into custody in light of a number of considerations, among them suspected drug use, violence and involvement in another armed robbery.

The Parole Commission ultimately revoked Phifer's parole, citing three considerations. First, the Commission found that Phifer had engaged in criminal mischief in the third degree because he had been arrested and charged with assault. Second, the Commission determined that evidence suggested that Phifer had used dangerous and habit forming drugs. Third, the Commission found that Phifer had violated a parole condition that required his participation in counseling services for his drug use. The hearing examiners made no finding regarding Phifer's alleged involvement in the armed robbery. After the hearing, however, the Regional Commissioner recommended that Phifer should be held responsible for the robbery as well.

Phifer first appealed his parole revocation to the National Appeals Board, exhausting his administrative remedies. Phifer then filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. Sec. 2241. In this petition, Phifer made four separate allegations 1) that he had been denied prehearing disclosure of police reports which the Commission relied upon in reaching its decision, in violation of 28 C.F.R. 2.50(d); 2) that his offense severity had been calculated in reliance on erroneous information; 3) that the United States Parole Commission violated his due process rights in failing to hold a local revocation hearing; and 4) that the Federal Bureau of Prisons violated his due process rights in moving him to another district while a revocation hearing was pending. The District Court agreed with Phifer, at least as to the first of his claims, finding that:

Phifer has established without contradiction the nondisclosure of the New York police reports, which bear a critical relation to the armed robbery finding. The respondent has established merely that these reports were among the materials received at his institution--not that Phifer and his counsel were permitted to examine them. In fact, Phifer contends that the reports were not even permitted to be inspected at the revocation hearing itself and has demonstrated that the Parole Commission subsequently refused to disclose the reports in a Freedom of Information Act request.

This finding pretermits consideration of Phifer's other claims. He is entitled to a new hearing. The writ the petitioner seeks shall therefore issue on this basis, unless within sixty (60) days the Parole Commission orders and schedules a new hearing consistent with this entry.

Jan. 6, 1993 Order (emphasis added).

Accordingly, the Commission held a second revocation hearing. The record fails to indicate exactly what transpired at this second hearing. In short, it is not evident whether the Parole Commission conducted a full revocation hearing the second time around. Phifer contends that although the Parole Commission disclosed the previously-omitted police reports, the Commission refused to address any other matters. He suggests that the second hearing provided by the Parole Commission therefore failed to comply with the district court's order. The State, of course, asserts that the second hearing fully complied with the district court's mandate. Whatever happened at this second hearing, its outcome was the same as the first: Phifer's sentence was reinstated.

Not surprisingly, Phifer again complained to the district court. Specifically, he filed a Motion to Reopen his original Petition for a Writ of Habeas Corpus. He essentially complained that some of his claims got lost in a paper shuffle; that is, he suggests that the combination of proceedings between the district court and the Parole Commission resulted in an ultimate failure to address all of his claims. In his view, the district court's order commanded a complete rehearing of his parole revocation (not merely a rehearing for the purposes of disclosing the previously omitted police reports). Since he believed that he would receive a complete rehearing of his revocation, he did not complain about the district court's failure to address every claim originally asserted in the first habeas petition. Phifer became concerned, however, when it became apparent that the Parole Commission did not intend to examine matters outside of the scope of the police reports. Upon revocation, he therefore moved to have the remainder of his original claims addressed.

The district court ultimately denied Phifer's motion, holding that its original order was final and that it no longer had jurisdiction in light of Phifer's transfer to White Deer, Pennsylvania. The district court further noted that the Parole Commission had complied with its order. In the district court's view, the proper procedural route for Phifer to traverse involves the filing of a second Petition for a Writ of Habeas Corpus (in order to contest the outcome of the second hearing).

Phifer appeals, claiming that the district court has jurisdiction and should consider all of the allegations in his original habeas petition. We believe that a district court retains jurisdiction to determine whether a party has complied with the terms of a conditional order. We therefore vacate and remand.

II.

This case requires us to address questions of jurisdiction--both our own and that of the district court. The State makes two allegations on appeal. First, it suggests that we lack jurisdiction in light of Phifer's failure to timely file a notice of appeal after entry of the district court's original order (conditionally granting the writ). Second, the State defends the district court's later conclusion that it lacked jurisdiction over Phifer's complaints about the second hearing. To support both of its allegations, the State relies upon the more general principle that a conditional grant of a habeas writ is ordinarily final and appealable, and as such, determines matters between the parties.

An appeal in a habeas corpus proceeding lies from a "final order," ultimately subjecting the district court's conclusions to review by the court of appeals for the circuit in which the proceeding took place. 28 U.S.C. Sec. 2253. See generally, Browder v. Illinois Dept. of Corrections, 434 U.S. 257, 265, 98 S.Ct. 556, 561, 54 L.Ed.2d 521 (1978). Courts have struggled with defining the prerequisites for determining an order's "finality." It is clear that an order denying all of the claims in the petition is final for the purpose of appeal--as is an order that definitively grants the writ and orders the petitioner's release.

Conditional orders, too, are ordinarily considered "final." Browder, 434 U.S. at 267, 98 S.Ct. at 562. These orders conditionally or provisionally grant the requested habeas relief; that is, they grant the writ of habeas unless some further specified action occurs within the state agency being challenged. See generally Burton v. Johnson, 975 F.2d 690, 694 (10th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1879, 123 L.Ed.2d 497 (1993) (order which directed release and retrial within 90 days was "final" for the purposes of appeal); Blazak v. Ricketts, 971 F.2d 1408, 1410-11 (9th Cir.1992), cert. denied, --- U.S. ----, 114 S.Ct. 1866, 128 L.Ed.2d 487 (1994) (order granting writ but leaving state free to retry petitioner if it chose "final" for purposes of appeal); Hull v. Freeman, 932 F.2d 159, 163 (3d Cir.1991) (order which directed release from custody in the absence of retrial "final" for purposes of appeal); Blake v. Kemp, 758 F.2d 523, 525 (11th Cir.), cert. denied, 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367 (1985) (same); Edwards v. Louisiana, 496 F.2d 904, 906 (5th Cir.1974) (order which directed release unless counsel was appointed and appeal reheard considered "final").

The reason that conditional orders are ordinarily considered final is that they generally terminate proceedings between the parties. Burton, 975 F.2d at 693-94. The district court has stated the grounds for its judgment, and release is ordered unless specified action occurs. "Although the order is conditional, nevertheless it is a final disposition of the disputed matters based on the...

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