Appeal from an order of the United States District Court for the Southern District of New York (Broderick, Judge), which granted petitioner a writ of habeas corpus subject to the grant of a new parole hearing.
Before: TIMBERS, CARDAMONE and PIERCE, Circuit Judges.
On March 17, 1969, Vincent Lynch was convicted in the United States District Court for the Southern District of New York on one count of robbery and one count of conspiracy. On December 2, 1976, while on parole based on his 1969 conviction, he was convicted of further federal offenses and sentenced to prison. As discussed below, he eventually received a parole hearing before a panel of Hearing Examiners ("Examiners"), who recommended that his former parole be revoked and that he be continued to a presumptive parole date on November 9, 1986. The National Parole Commission ("Commission"), however, disagreed with the presumptive parole date recommended by the examiners, and in a Notice of Action determined that Lynch was to be continued to a ten-year reconsideration hearing in September of 1991. Lynch objected to this extension of his time to be served, and after unsuccessfully pursuing his administrative remedies, sought the subject writ of habeas corpus pursuant to 28 U.S.C. § 2255 (1982).
After oral argument before Vincent L. Broderick, Judge, the petition was granted, subject to the grant of a new parole hearing. The district court found at least four distinct violations of Lynch's due process rights: (1) the Commission deviated from the recommendation of the Examiners, yet failed to state additional reasons beyond those considered by the Examiners; (2) the Commission failed to give adequate consideration to the parole status of Lynch's co-defendants; (3) the Commission delayed for almost eight months producing documents requested by Lynch under the Privacy Act and the Freedom of Information Act; and (4) although the Examiners had Lynch's pre-sentence report before them at the parole hearing, Lynch's counsel was denied access to the report. For the reasons set forth below, the judgment of the district court is affirmed in part and reversed in part.
In 1969, Lynch was sentenced to ten years imprisonment. On July 31, 1974, he was released on parole, and was to remain under parole supervision until September 4, 1978.
While on parole, Lynch committed a series of offenses involving the extortion of money from alleged narcotics dealers, which led in June 1976 to his indictment in the Southern District of Florida on charges of extortion and conspiracy. He failed to appear in that court and, pursuant to a bench warrant was arrested on November 16, 1976, by federal agents in Brooklyn, New York. He was returned to Florida and on December 2, 1976, he was convicted in the Southern District of Florida of conspiracy and racketeering charges, for which he was sentenced to twenty years imprisonment. He subsequently pleaded guilty to state charges in Florida related to the same acts for which he had received his federal sentence, and was sentenced to three years to run concurrently with the sentences imposed on the federal convictions. He has completed serving his state sentence.
As a result of Lynch's parole violations, brought about by his Florida convictions, which occurred while he was serving his 1969 sentence, a parole violation warrant was lodged against him as a detainer while he was serving his Southern District of Florida prison sentence. Lynch was thereafter scheduled for a parole revocation hearing. This was to be combined with an initial parole hearing on his new sentence, and was originally set for November 1980. On October 16, 1980, however, Lynch was assaulted by other inmates at the Federal Correctional Institution -- Lompoc, and sustained serious injuries, including the loss of an eye and permanent liver damage. On the advice of counsel, Lynch did not appear at the hearing. he was thereafter notified that his hearing would be held on the next docket after December 15, 1980, at the Springfield Medical Center for Federal Prisoners. On December 29, 1980, Lynch's parole representative, Benson Weintraub, made a request under the Freedom of Information Act ("FOIA") and the Privacy Act for all documents in Lynch's file. Weintraub also requested that the parole hearing be continued for 120 days, to allow for production and review of the documents. At that time, Lynch was scheduled for a hearing on the January 1981 docket at Springfield. Lynch's transfer to Otisville, N.Y., on January 8, 1981, however, resulted in rescheduling of the hearing to March 1981, apparently independently of Weintraub's request for a continuance, which was received by the Commission on January 15, 1981.
After its review of Weintraub's request for an adjournment, the Commission became aware that Weintraub was not an attorney. Accordingly, its Regional Counsel, Henry Sadowski, notified Lynch on March 3, 1981, that Weintraub would not be permitted to make legal arguments on Lynch's behalf unless a supervisory attorney were present. The Commission produced for Lynch the information that was contained in his parole violation file. This file, however, did not include all the documents requested by Weintraub.
Lynch then retained an attorney, Lawrence M. Hermann, to represent him at the parole hearing, scheduled for March 25, 1981. On March 18, Hermann requested a delay of the hearing, partly because the requested documents had not yet been produced and partly because he had not had sufficient time to prepare for the hearing.
Hermann's request for a continuance was granted, and the parole hearing was rescheduled to May 29, 1981. On that date, Lynch requested another postponement, stating that he wished to retain a different attorney. In early July 1981, Thomas Sear, Lynch's present counsel, was appointed to represent Lynch. On July 14, Sear asked for a postponement on the ground that the documents requested had still not been produced, stating that he considered it "absolutely essential" that he have an opportunity to review to documents before the hearing.
Finally, on September 2, 1981, approximately eight months after Lynch made his FOIA and Privacy Act requests, copies of all disclosable documents, with the exception of the pre-sentence report, were sent to Sear. The Commission explained this delay by stating that it had received a large influx of similar requests, which were processed in order of their receipt. During the period of the delay, however, on August 31, 1981, new parole guidelines became effective, which had the effect of increasing the ...