United States of America Ex Rel. Andrew G. Frederick, Petitioner, v. Frank F. Kenton, Warden, Federal Correctional Institution,danbury, Connecticut, Respondent, 308 F.2d 258 (2d Cir. 1962)

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 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.

Andrew G. Frederick, pro se.

Robert C. Zampano, U.S. Atty., District of Connecticut, New Haven, Conn., for respondent.