The opinion of the court was delivered by: SWEET
Petitioner Harry Theriault ("Theriault") seeks a writ of habeas corpus to vacate the extension of his release date from federal prison based on the parole reconsideration proceedings conducted on July 18, 1985. For the following reasons, the writ will be denied and Theriault's petition will be dismissed.
This action commenced in August, 1984 with the filing of a habeas corpus petition by Theriault. The petition challenged certain actions of the United States Parole Commission ("Parole Commission") in connection with the revocation of Theriault's parole in 1983. The court has finally adjudicated all of the claims contained in the August, 1984 petition. Theriault v. Quinlan, 609 F. Supp. 733 (S.D.N.Y.), on rehearing, 614 F. Supp. 209 (S.D.N.Y. 1985), later opinion, slip op. (S.D.N.Y. January 6, 1986), on rehearing, slip op. (S.D.N.Y. February 21, 1986).
In moving for reconsideration of the January 6, 1986 opinion, Theriault argued that he was entitled to relief based upon new claims entirely different from those contained in his August, 1984 petition. These new matters concerned errors allegedly committed by the Parole Commission in connection with a July 18, 1985 parole reconsideration hearing. Specifically, Theriault claimed:
that he was not provided adequate notice of the claimed criminal conduct [which led to the reconsideration] prior to the July 18, 1985 hearing on his parole classification, that he was denied an opportunity to present evidence at the July 18 hearing in his behalf, and that the Notice of Action fails to indicate the evidence which supports the reclassification.
Theriault v. Quinlan, slip op. at 2 (S.D.N.Y. February 21, 1986). The government was ordered to answer Theriault's new allegations. Id.
Upon the revocation of his parole in 1983, Theriault was scheduled for a presumptive reparole on August 27, 1985, after service of twenty-eight months. This decision was made on the basis of information available to the Parole Commission at the time of the revocation in 1983.
On February 14, 1985, the Parole Commission received a letter from the Chief United States Probation Officer for the District of New Hampshire. The letter attached copies of letters written by Theriault to members of his family and threatening violent action against them. Although some of the letters date back to the summer of 1983 and are contemporaneous with Theriault's parole revocation proceeding, the Parole Commission did not know of the letters at that time. The first time the Parole Commission learned of these letters was when they were forwarded to it by the Chief Probation Officer of New Hampshire in February, 1985. Subsequently, additional information concerning Theriault's threats against members of his family was provided to the Parole Commission.
Theriault's letters threaten various forms of punishment and retribution against members of his family in connection with what he apparently viewed as a "betrayal" which led to his arrest on the parole violator warrant in 1983. For example, Theriault wrote in a letter to his sister that "the kiss of death intended for me shall have a funny way of backfiring on the one who did it . . . ." Similar statements appear in others of the letters. See, e.g., Theriault letter of June 18, 1983 (warning his sister that she would be punished for having betrayed him by lying and turning him in); Theriault's letter of July 11, 1984 (writing to his sister on the subject of his family's betrayal by turning him in on the parole violator warrant that "my sentence will be up in a few more years - then then we'll see who get the 'sweet revenge' if that's what you guys want").
In addition to Theriault's own letters, the Parole Commission received a lengthy affidavit from Theriault's sister Jeannette Hammond. In the affidavit, Ms. Hammond stated that shortly after Theriault was arrested on the parole violator warrant, he called her and said that because he believed she had turned him in to the authorities he would have to "kill [her], Roger and the blessed baby." She also stated that she understood Theriault's statements as threats.
On April 26, 1985, Theriault's case was reopened for reconsideration under 28 C.F.R. § 2.28(f) on the basis of this new, adverse information concerning threats by him against members of his family. Theriault was advised that the reason for the reopening was to consider information concerning his "past history of threats to members of [his] family." The documents reflecting Theriault's threats were forwarded to the Otisville Federal Correctional Institution with instructions to let the petitioner review the materials in advance of the reconsideration hearing.
Theriault reviewed the letters relied upon by the Parole Commission to reopen the case and wrote a responsive letter to the Parole Commission in which he stated that the "prison staff have allowed me to review a file of Xeroxes of letters allegedly written by me to family members" and in which he argued that there was no proof that he had actually written the letters in question. Theriault confirmed that he had reviewed the collection of threatening letters in ...