Phillips v. Brennan

• Decision Date: 22 July 1992
• Docket Number: No. 91-1980,91-1980
• Citation: 969 F.2d 384
• Parties: George T. PHILLIPS, Petitioner-Appellant, v. Edward J. BRENNAN, Bureau of Prisons and United States Parole Commission, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 384

969 F.2d 384

George T. PHILLIPS, Petitioner-Appellant, v. Edward J. BRENNAN, Bureau of Prisons and United States Parole Commission, Respondents-Appellees.

No. 91-1980.

United States Court of Appeals Seventh Circuit.

Argued Jan. 21, 1992.

Decided July 22, 1992.

Linda M. Zech (argued), Dewitt, Porter, Huggett, Schumacher & Morgan, Madison, Wis., for petitioner-appellant.

Christa A. Reisterer, Asst. U.S. Atty. (argued), Office of U.S. Atty., Madison, Wis., for respondents-appellees Edward J. Brennan, Bureau of Prisons and U.S. Parole Com'n.

Before BAUER, Chief Judge, CUDAHY, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.

BAUER, Chief Judge.

On January 16, 1980, the district court sentenced petitioner-appellant George T. Phillips to two consecutive life terms of imprisonment for two counts of kidnapping, a consecutive five-year term of imprisonment for interstate transportation of a stolen motor vehicle, and a consecutive five-year term of imprisonment for interstate transportation of a woman for immoral purposes (i.e. violation of the Mann Act). We affirmed Phillips' convictions and sentences. See United States v. Phillips, 640 F.2d 87 (7th Cir.), cert. denied, 451 U.S. 991, 101 S.Ct. 2331, 68 L.Ed.2d 851 (1981).

For prisoners sentenced prior to November 1, 1987, the effective date of the Sentencing Reform Act of 1984, the sentencing court determines the maximum term of incarceration, and the United States Parole Commission (the "Commission") sets the prisoner's parole date. See Pulver v. Brennan, 912 F.2d 894, 895 n. 1 (7th Cir.1990). The Commission determines the actual parole date by applying guidelines based on the severity of the offense and characteristics of the offender. Offenses receive a "severity rating" which is based not merely on the crime for which the prisoner was convicted, but also on the Commission's assessment of the prisoner's total offense behavior and history. Id. The offender's parole prognosis is rated by his "salient factor score," which includes such factors as age at commencement of offense, history of drug dependency, and prior convictions. Id. See also 28 C.F.R. § 2.20 (1988).

On October 16, 1988, Phillips applied for parole and requested on his application that the Commission disclose his institutional file in preparation for his initial parole hearing. His request was granted and his file was given to him on December 28, 1988. The Commission reviewed his case on the record and prepared a prehearing assessment on February 3, 1989. In the assessment, the Commission determined that Phillips' offense severity category was seven (eight being the highest) and his salient factor score was four. Phillips' institutional record was good. Under the Commission's guidelines, an inmate with these ratings and characteristics ordinarily would serve 78 to 110 months. Phillips had served 113 months at the time of his hearing on March 2, 1989.

By letter dated February 15, 1989, one of the victims of Phillips' crimes requested permission to attend the parole hearing. The victim, Gary W. Smith, is a police sergeant with the City of Green Bay, Wisconsin. The Commission notified Smith that he could attend. Phillips was not notified that Smith would testify at the hearing. Instead, he was told that no adverse witnesses would testify.

At the hearing, the examining panel found that there was good cause to excuse Smith from making his oral statement in Phillips' presence because of the violent nature of the offense and the potential emotional trauma to Smith that might result from further confrontation with Phillips. After concluding the interview with Smith outside Phillips' presence, the examiners conducted the hearing with Phillips and his representative.

Smith's testimony largely duplicated the Commission's description of Phillips' crimes in its prehearing assessment. Phillips and three others kidnapped a woman and Smith outside a Green Bay tavern. As they drove from Green Bay into Illinois, the four assailants repeatedly sexually assaulted the woman and threatened to assault Officer Smith. The new information that Smith provided was that Phillips was the primary offender of the crime, that he had committed a similar abduction several days prior to the federal offense, and that he had forced Smith to play "Russian Roulette" during the course of the abduction.

At the beginning of the hearing, the Commission's examiners summarized these statements for Phillips, who responded that he was not the primary perpetrator, that he did not remember playing "roulette" with Smith, but that he must have done it if Smith said that he did. Phillips also admitted to the examiners that three days prior to the offense, he and his two co-defendants robbed and abducted a different victim.

On March 21, 1989, the Commission denied parole and continued reconsideration for fifteen years, until March 2004. The Commission stated:

After review of all relevant factors and information presented, a decision above the guidelines appears warranted because: you [i.e. Phillips] are a poorer risk than indicated by your salient factor score in that: you abducted two victims at gun point and both were physically assaulted. You were the primary perpetrator of this offense. Further, by your own admission you committed a similar abduction three days prior to this offense. You have a prior conviction for abduction and rape. This offense is further aggravated by the fact that you threatened to kill the victims and you played "human roulette" on two separate occasions with the victim police officer.

See District Court Opinion and Order, Appellant's Appendix ("District Court Opinion") at 178 (quoting the Commission).

On April 6, 1989, Phillips appealed the Commission's decision to the National Appeals Board. In the appeal, Phillips claimed that he did not commit a similar abduction three days prior to the federal offenses, that he was denied notice that the Commission would consider such a charge at his parole hearing, that he was denied the opportunity to defend against this charge, and that the Commission misinterpreted his response to the allegation as an admission that he committed the abduction. The National Appeals Board affirmed the Commission's decision on May 17, 1989.

Phillips petitioned for a writ of habeas corpus under 28 U.S.C. § 2241. On July 3, 1989, the district court dismissed the petition. On appeal, we reversed the order of dismissal and remanded the case to the district court to determine whether the Parole Commission failed to comply with the disclosure provisions set out in 18 U.S.C. § 4208(b), thereby violating the petitioner's right to due process. See Phillips v. Brennan, 912 F.2d 189, 192 (7th Cir.1990).

On April 11, 1991, the district court denied on remand Phillips' habeas petition. The court reasoned that neither the Constitution nor the relevant federal statutes obligated the Commission to provide notice and disclosure of a victim's oral statement prior to a parole determination hearing. The court stated:

By giving [Phillips] access to his files more than sixty days prior to his hearing, the [C]ommission complied with the disclosure requirements contained in 18 U.S.C. § 4208(b) and (c) and in 28 C.F.R. § 2.55(a).... Nothing in the statutes or regulations indicates that petitioner's due process rights should be expanded beyond these standards to include prehearing notification and disclosure of a victim's oral testimony.

District Court Opinion at 183-84. The court suggested that requiring victims to give advance statements on the content of their oral testimony might be enough to discourage such testimony at the parole hearing. Id.

At the outset, we note that there is no dispute that Phillips had access to his institutional file and documentary evidence prior to the hearing pursuant to 18 U.S.C. § 4208(b) and 28 C.F.R. § 2.55(a). Section 4208 requires the Commission to provide the prisoner "reasonable access to a report or other document to be used by the Commission in making its determination" at least thirty days prior to any hearing. The regulations governing parole determinations include similar language, but require disclosure of reports and other documents sixty days prior to the hearing. See 28 C.F.R. § 2.55(a). Both the statute and the regulations are silent with respect to prehearing disclosure of the oral statements to be made at the parole hearing. Moreover, according to 28 C.F.R. § 2.55(b), the scope of disclosure explicitly "is limited to reports and other documents to be used by the Commission in making its determination." Thus, by giving Phillips access to his files more than sixty days before his hearing, the Commission fully complied with the disclosure requirements of § 4208 and § 2.55.

As the district court appropriately observed, then, the critical issue in this case is whether due process requires that the Commission give a prisoner prehearing notice and disclosure of any oral statement that it considers. In addition to arguing that due process includes such requirements, Phillips also contends that the Commission further violated due process guarantees when it considered Smith's statements regarding the abduction that allegedly occurred a few days prior to the offense for which Phillips was convicted. He also maintains that the Commission violated the constitution a third time when it considered his responses to Smith's allegations.

We are not persuaded by Phillips' arguments. Due process does not require that additional procedural protections be afforded a prisoner when a victim seeks to make an oral statement at a parole determination hearing. In Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme Court held that there is no inherent, constitutional right of parole. Id. at 7, 99 S.Ct. at 2104. Nevertheless, whether a statutory parole scheme provides an "expectancy of...