UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
January 17, 1978
DAVID HOLLIS, PETITIONER-APPELLANT,
HAROLD J. SMITH, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT-APPELLEE
571 F.2d 685.
Moore, Friendly and Timbers, Circuit Judges.
Author: Per Curiam
The State's petition for rehearing filed on January 17, 1978 afforded no basis for reconsideration of our opinion. However, on February 1, 1978, Assistant Attorney General Rutzick filed a "most urgent motion to supplement the record on appeal" to include a report by a parole officer dated October 9, 1975. This stated, among other things, that after Hollis had been paroled on September 16, 1975, he had assaulted a woman friend with whom he was staying in Buffalo, N.Y., and had made sexual threats or advances toward her minor son and daughter. Hollis denies the truth of these allegations. We are seriously disturbed at the failure of the State, which should have been familiar with this material as a result of an attack by Hollis on the revocation of his parole in the Supreme Court of New York for Wyoming County and in the Appellate Division for the Fourth Department, to have informed the District Court or this court about it, and we find altogether lame the excuses proffered by the Assistant Attorney General, to wit, that the State had not expected us to review the evidence concerning Hollis. However, the charges that Hollis attempted to engage in sexual offenses immediately upon his release on parole in 1975 are so disquieting that the interests of justice require an evidentiary hearing to determine their truth.
Our original opinion unconditionally directed the issuance of the writ, noting, inter alia, that "the State has not called our attention to any developments since 1969 that would confirm the psychiatrists' opinion that Hollis is a danger to society . . . ." Our attention has now been called to such information, albeit belatedly, and we therefore modify the final paragraph of our opinion so as to direct issuance of the writ unless the State commences within sixty (60) days a new Bailey hearing, including but not necessarily limited to the charges made in the parole report. The determination at such hearing shall comport with the requirement of proof by clear, unequivocal and convincing evidence set out in our opinion.
Accordingly, the State's motion to supplement the record in this court is denied. Its petition for rehearing is granted to the extent here indicated and is otherwise denied.
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