Harry L. Brewer, Jr. v. J.D. Swinson, Superintendent, Fpc, Duluth, Mn, U.S. Parole Commission

837 F.2d 802, 1988 U.S. App. LEXIS 18769
CourtCourt of Appeals for the Eighth Circuit
DecidedMarch 15, 1988
Docket87-5228
StatusPublished
Cited by20 cases

This text of 837 F.2d 802 (Harry L. Brewer, Jr. v. J.D. Swinson, Superintendent, Fpc, Duluth, Mn, U.S. Parole Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harry L. Brewer, Jr. v. J.D. Swinson, Superintendent, Fpc, Duluth, Mn, U.S. Parole Commission, 837 F.2d 802, 1988 U.S. App. LEXIS 18769 (8th Cir. 1988).

Opinions

McMILLIAN, Circuit Judge.

Harry L. Brewer, Jr., appeals pro se from a final order entered in the District Court for the District of Minnesota denying his 28 U.S.C. § 2241 petition for a writ of habeas corpus. For reversal, appellant argues that the district court erred in (1) concluding that because he is a sub-class representative in a pending class-action suit raising issues identical to those in his habe-as petition, the merits of his habeas claim should not be reached, and (2) denying his [803]*803request to withdraw from the class action in order to proceed with his habeas petition. For the reasons discussed below, we reverse the district court’s denial of habeas relief and remand the case to the district court with instructions to permit appellant to withdraw from the Cosgrove 1 class action lawsuit, to grant the petition for writ of habeas corpus and to direct the United States Parole Commission (USPC) to conduct a parole hearing for appellant, applying the District of Columbia (D.C.) parole guidelines, within ten days of the date of this opinion.

Appellant, an inmate at the Federal Prison Camp in Duluth, Minnesota, was convicted of forgery in violation of the D.C. Criminal Code, and on January 14, 1976, was sentenced by the D.C.Superior Court to serve two concurrent ten-year prison terms. Under D.C. law, offenders convicted of violating local laws may be assigned by the Attorney General to serve their sentences in either federal institutions or facilities maintained by the District. D.C.Code Ann. § 24-425 (1981). Appellant was assigned to a federal institution.

Appellant was paroled on three separate occasions between 1978 and 1986. On each occasion he committed acts which led to his return to federal custody and revocation of parole. Following his last parole revocation, appellant was ordered to serve to the expiration of his sentence.1 Appellant appealed to the National Appeals Board of the USPC which affirmed the decision.

On December 9, 1986, appellant filed this petition for a writ of habeas corpus challenging the legality of the USPC’s decision for the reason that the order was based upon federal parole criteria, rather than D.C. parole standards,2 thereby violating his right to equal protection and the prohibition against ex post facto laws. Appellant claimed that as a D.C.Code offender and pursuant to D.C.Code Ann. § 24-209 (1981),3 D.C. parole guidelines should have governed all parole decisions concerning him even though he was confined in a federal institution; he sought a new parole hearing under the D.C. parole scheme.

At the time appellant filed his habe-as petition, there was pending in the United States District Court for the District of Columbia a certified class-action suit, Cos-grove v. Smith, No. 80-0516 (D.D.C. filed Feb. 25, 1980) (Cosgrove 7),4 in which appellant was a named representative of a designated sub-class. According to appel-lees, the issues raised in Cosgrove I are identical to those raised in appellant’s habe-as petition; therefore, appellees moved the district court to dismiss appellant’s habeas petition in order to avoid duplicative litigation. The United States magistrate to whom appellant’s habeas petition was referred, agreed and recommended denying appellant’s petition on that basis, inter alia. In addition, the magistrate recommended denying appellant’s request to withdraw from Cosgrove I in order to pursue his habeas petition. Appellant filed objections [804]*804and the district court, after completing a de novo review, adopted the magistrate’s report and recommendation. Thereafter, appellant filed this appeal. Counsel was appointed to represent appellant on appeal, and the appeal was expedited. Oral argument was presented by counsel for both parties by telephone conference call on January 21, 1988.

Although no precise rule has evolved with regard to the handling of instances where identical issues are raised in cases pending in different federal courts, the general principle is to avoid duplicative litigation. Colorado River Water Conservation District v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). The threshold question to be addressed is whether the issues raised in appellant’s habeas petition are, indeed, identical to those in the Cosgrove I class action.

As we read appellant’s habeas petition, his claim constitutes a direct challenge to the authority of the USPC under D.C.Code Ann. § 24-209 to employ federal parole standards in making parole determinations for D.C.Code offenders assigned to federal institutions. This issue is presently pending in Cosgrove I.5

While the general principle is to avoid duplicative litigation, the determining factors should be equitable in nature, giving regard to wise judicial administration. Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, 183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952). Under this principle, the district court in Walker v. Luther, 644 F.Supp. 76 (D.Conn.1986), aff'd, 830 F.2d 1208 (2d Cir.1987), exercised its concomitant jurisdiction and allowed Cosgrove I class members to proceed with their independent habeas claims.

Here, appellant’s situation is one of urgency because his parole rehearing date under the D.C. parole guidelines may have already passed.6 In addition, the magistrate’s recommendation of February 17, 1987, was based upon the assumptions that Cosgrove I would be decided within a short time and that the issue at bar was one of disparate treatment which would require extensive development of facts. To date, almost eleven months later, the Cosgrove I litigation still continues. See Cosgrove I, No. 80-0516 (D.D.C.) (cross-motions for summary judgment pending and discovery reopened on October 8, 1987). We assume for the purposes of analysis in this case that the habeas court has the discretion to permit appellant to withdraw from the Cos-grove I class action lawsuit, even though appellant is a named, representative of a designated sub-class in Cosgrove I, in order to proceed with his independent habeas claims. Cf. Walker v. Luther, 644 F.Supp. at 79 n. 9 (government conceded during oral argument that habeas court has discretion to allow class members to withdraw from Cosgrove class action). Permitting appellant to withdraw from Cosgrove I need not prejudice the other members of that sub-class or otherwise interfere with the progress of that litigation. See 7 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1765, at 288-91 n. 43 (2d ed.

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Cite This Page — Counsel Stack

Bluebook (online)
837 F.2d 802, 1988 U.S. App. LEXIS 18769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harry-l-brewer-jr-v-jd-swinson-superintendent-fpc-duluth-mn-us-ca8-1988.