United States of America Ex Rel. Andrew G. Frederick v. Frank F. Kenton, Warden, Federal Correctional Institution, Danbury, Connecticut

Second Circuit

United States of America Ex Rel. Andrew G. Frederick v. Frank F. Kenton, Warden, Federal Correctional Institution, Danbury, Connecticut

308 F.2d 258, 1962 U.S. App. LEXIS 4113

CourtCourt of Appeals for the Second Circuit

DecidedSeptember 14, 1962

DocketMisc. 1962

StatusPublished

Cited by2 cases

This text of 308 F.2d 258 (United States of America Ex Rel. Andrew G. Frederick v. Frank F. Kenton, Warden, Federal Correctional Institution, Danbury, Connecticut) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States of America Ex Rel. Andrew G. Frederick v. Frank F. Kenton, Warden, Federal Correctional Institution, Danbury, Connecticut, 308 F.2d 258, 1962 U.S. App. LEXIS 4113 (2d Cir. 1962).

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Opinion

PER CURIAM.

The petitioner has applied for leave to appeal in forma pauperis and for the assignment of counsel on his appeal from an order of the District Court for the District of Connecticut, Timbers, J., denying his petition for habeas corpus. These motions were denied below. His petition alleges that he was not permitted to bring to the attention of the Parole Board evidence which would excuse or disprove the charge of parole violation on which the revocation of parole was based. If this allegation is correct, the petitioner was, in effect, denied the “opportunity to appear before the Board” provided by 18 U.S.C. § 4207. Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946); see Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935).

The memorandum of decision filed in the district court is unclear as to what information was before the court when it issued its order. So far as can be gathered, however, it relied solely on the papers filed before it and now part of the record before us. These papers do not deal adequately with petitioner’s contention. Accordingly, we remand to the district court for further findings and for the taking of such further testimony as may be necessary.

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PER CURIAM.

The petitioner has applied for leave to appeal in forma pauperis and for the assignment of counsel on his appeal from an order of the District Court for the District of Connecticut, Timbers, J., denying his petition for habeas corpus. These motions were denied below. His petition alleges that he was not permitted to bring to the attention of the Parole Board evidence which would excuse or disprove the charge of parole violation on which the revocation of parole was based. If this allegation is correct, the petitioner was, in effect, denied the “opportunity to appear before the Board” provided by 18 U.S.C. § 4207. Fleming v. Tate, 81 U.S.App.D.C. 205, 156 F.2d 848 (1946); see Escoe v. Zerbst, 295 U.S. 490, 493, 55 S.Ct. 818, 79 L.Ed. 1566 (1935).

The memorandum of decision filed in the district court is unclear as to what information was before the court when it issued its order. So far as can be gathered, however, it relied solely on the papers filed before it and now part of the record before us. These papers do not deal adequately with petitioner’s contention. Accordingly, we remand to the district court for further findings and for the taking of such further testimony as may be necessary.

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308 F.2d 258, 1962 U.S. App. LEXIS 4113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-of-america-ex-rel-andrew-g-frederick-v-frank-f-kenton-ca2-1962.

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