USA v. McLaughlin CV-97-449-M 09/11/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 97-449-M

Bernard McLaughlin

O R D E R

Bernard McLaughlin, through counsel, has filed a petition

for relief from his sentence, presumably pursuant to

, in which he raises two issues:

1. Whether ex parte communications between the sentencing judge and a probation officer, in which the probation officer makes allegedly "erroneous" sentencing recommendations to the judge, constitute prejudicial error warranting relief; and

2. Whether the sentence imposed by the court, as intended by the court, is being misconstrued or misapplied by the executive branch such that the bureau of prisons has unlawfully extended the duration of petitioner's imprisonment?

As to both issues, the petition (and incorporated memorandum

of law) is entirely inadeguate — the court cannot determine from

the petition whether the issues raised are frivolous or

sufficiently meritorious to warrant service upon the United

States Attorney. See

("Unless the motion and

the files and records of the case conclusively show that the

prisoner is entitled to no relief, the court shall cause notice

thereof to be served upon the United States Attorney.") For reasons that should have been obvious to its author, the

incorporated memorandum of law is inadequate with regard to the

issue of ex parte communications between the court and the

probation officer. While some legal research apparently preceded

its drafting, neither the petition nor the incorporated

memorandum makes mention of the substantial volume of published

authority (including opinions from this and other circuit courts

of appeal) which address and reject the precise point raised by

counsel. See e.g.. United States v. Fraza,

, 1055-

56 (1st Cir. 1997) ("We would expect the [probation] officer to

exercise his independent judgment as to the application of the

guidelines and we see no error in his interruption of the

proceedings [and ex parte communication with the court] to make

his judgment known"). See also United States v. Belqard,

(9th Cir. 1990) ("We have even held that ex parte

communications of the probation officer with the court are

proper") (citing United States v. Gonzales,

, 1398-

99 (9th Cir. 1985)); United States v. Behler,

(9th Cir. 1994) ("[Petitioner] contends that the district court

erred by having an ex parte discussion in chambers with the

probation officer during the sentencing hearing. [P]etitioner

knew about the meeting but failed to object at the sentencing

hearing and, thus, has waived any such issue (if one were to

exist) on appeal"); United States v. Pryor,

(7th Cir. 1992) ("The appellant has failed to cite any case law

in support of his proposition that it is reversible error for the

2 sentencing judge to communicate ex parte with the probation

officer who authored the presentence report prior to the

sentencing hearing, and we are unaware of any such case"); United

States v. Johnson,

(4th Cir. 1991) (concluding

that a defendant's Sixth Amendment right of confrontation is not

implicated when a probation officer confers ex parte with the

court and holding that "an ex parte presentence conference

between a court and a probation officer is not a critical stage

of the sentencing proceedings"). Accord United States v. Woods,

(5th Cir. 1990); United States v. Sifuentez,

30 F .3d 1047, 1049 n.5 (9th Cir. 1994).1

Although the petition does cite some authority in apparent

support of the position advocated, those authorities are, at

best, collateral and only indirectly related to the issue.

Moreover, counsel has stretched the holdings in some of those

cases nearly to the breaking point. All of this raises a

guestion as to whether counsel simply failed to find relevant

case law addressing the issue, or whether counsel found but

improperly neglected to bring those contrary cases (or, at a

minimum, contrary cases from this circuit) to the court's

attention.

1 While many of the cases cited above deal with ex parte communications between a judge and probation officer in the context of a criminal sentencing, counsel for petitioner has failed to explain why the reasoning in those cases would not apply with egual force to situations in which the court communicates, on an ex parte basis, with the probation officer in the context of sentencing on a probation violation.

3 As to the second issue, petitioner's counsel alleges no

facts in support of his claim that his sentence is being

improperly executed. He simply asserts that the probation

officer made an "incorrect sentencing recommendation" of some

undescribed nature, the court relied on that recommendation, and,

due to some bureau of prisons procedure or misinterpretation, the

petitioner is "serving twice the time the judge intended for

him." Although entirely conclusory in nature, petitioner's

assertions suggest that counsel was aware of the probation

officer's allegedly erroneous sentencing recommendation.2 They

also suggest that counsel apparently has some idea as to why it

was "erroneous," what this court actually "intended," and why or

how the bureau of prisons has either misconstrued the sentence or

is ignoring its terms. Yet, none of that necessary information

has been pled.

Given its current state, the petition appears on its face to

be frivolous and unsupported by either fact or applicable law.

See e.g. United States v. Quin,

(1st Cir.

1988). Nevertheless, it is conceivable that through some error,

the sentence imposed by the court is not being executed in a

correct manner. In fairness to petitioner, his counsel ought to

be given an opportunity to make a proper and adeguate

2 Although not reguired, in this district sentencing recommendations made by probation officers to the court in probation or supervised release revocation proceedings are customarily disclosed to the defendant and his or her counsel.

4 presentation before the court performs its initial screening

function under

.

Accordingly, on or before October 9, 1997, counsel for

petitioner shall file a supplemental petition alleging the

underlying facts in sufficient detail to describe the precise

nature of petitioner's claims and the facts which, if true, would

entitle petitioner to relief under applicable law. Also by that

date, counsel shall file a separate and thorough supporting legal

memorandum discussing: 1) his legal theories, taking into

account the authorities noted above and any other relevant

authorities he finds through adeguate legal research; 2) why the

issue raised regarding the probation officer's ex parte

sentencing recommendation has not been waived by counsel's

failure to object at sentencing and failure to raise it on direct

appeal; and 3) explaining precisely what erroneous interpretation

of the imposed sentence has resulted in an unintended extension

of petitioner's imprisonment.

After considering the supplemental petition and memorandum

the court will determine whether the petition should be dismissed

or whether the United States Attorney should respond, and whether

a hearing, with or without petitioner's presence, is reguired.

5 SO ORDERED.

Steven J. McAuliffe United States District Judge

September 11, 1997

cc: Paul Twomey, Esq. Arnold Huftalen, AUSA U.S. Marshal U.S. Probation

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