U.S. v. Ferri, s. 78-2370

• Decision Date: 18 June 1981
• Docket Number: 78-2584 and 78-2585,Nos. 78-2370,78-2410,s. 78-2370
• Parties: UNITED STATES of America v. Francis D. FERRI a/k/a Rick Joseph Laverich. Appeal of Kenneth R. MATTHEWS, Kenneth R. Matthews, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 325

652 F.2d 325

UNITED STATES of America v. Francis D. FERRI a/k/a Rick Joseph Laverich.

Appeal of Kenneth R. MATTHEWS, Kenneth R. Matthews, Appellant.

Nos. 78-2370, 78-2410, 78-2584 and 78-2585.

United States Court of Appeals, Third Circuit.

June 18, 1981.

Rehearing Denied August 18, 1981.

Kenneth R. Matthews, pro se.

Robert J. Cindrich, Thomas A. Crawford, Jr., Sandra D. Jordan, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ADAMS, Circuit Judge.

Kenneth Matthews was convicted for maliciously damaging by means of an explosive a vehicle used in interstate commerce; for illegally making a destructive device; for the unregistered possession of a destructive device; and for mail fraud. 18 U.S.C. §§ 2, 371 and 844; 26 U.S.C. §§ 5861(f), 5871; 26 U.S.C. §§ 5861(d) and 5871; 18 U.S.C. § 1341. A sentence of 15 years incarceration was originally imposed on April 23, 1975. ¹ The convictions were affirmed by this Court in a judgment order dated March 7, 1976. 532 F.2d 746 (3d Cir. 1976) (mem.).

On May 30, 1978, Matthews filed a petition for a writ of habeas corpus, which the district court construed as a motion to vacate Matthews' sentence. In the petition, Matthews alleged:

(1) That the intent of the sentencing judge had been frustrated by the actions of the Parole Commission;

(2) That Matthews had not received an initial classification hearing within 90 days of his arrival at Leavenworth Penitentiary;

(3) That the guidelines and salient factors used by the Parole Commission changed since sentencing (April 23, 1975) and commencement of the sentence (December 1, 1977) to the detriment of appellant (4) That since the parole guidelines call for fifty-five months imprisonment, which is in excess of one-third of his sentence, the sentencing intent of the district judge was frustrated; and

(5) That since the district judge sentenced Matthews under 18 U.S.C. § 4208(a) (2), but parole authorities had "amended" his sentence to provide for parole eligibility under 18 U.S.C. § 4205(b)(2), the parole authorities had usurped a judicial function.

By an order dated October 17, 1978, the district judge denied the petition. In its opinion accompanying the order, the district court noted that a 55 month sentence is less than one-third of the 15 year sentence that had been imposed on Matthews. The district court stated specifically that its sentencing intent was not frustrated at all, and it had left to the discretion of the parole authorities whether to keep Matthews in prison for at least one-third of his sentence, all of his sentence, or to release him sometime during the course of his sentence.

Matthews then filed an appeal to this Court in which he repeated the same claims that he had advanced before the district court in his petition for habeas corpus, and added the argument that application of the new parole guidelines to him is prohibited by the ex post facto clause of the Constitution. He relied upon Geraghty v. U. S. Parole Commission, 579 F.2d 238 (3d Cir. 1978), which was ultimately vacated and remanded, sub nom. United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). This Court in considering Matthews' appeal was guided, inter alia, by the case of United States v. Addonizio, 442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979), which held that the claim that a sentencing judge's intent was frustrated is no longer available in a collateral attack. On March 7, 1980, we affirmed the judgment of the district court. 620 F.2d 290 (3d Cir. 1980) (mem.)

Thereafter, Matthews filed a petition for a writ of certiorari to the Supreme Court on May 12, 1980. In his petition, Matthews presented the following issues for review:

A. The United States Bureau of Prisons by knowingly amending petitioner's parole eligibility to Title 18 U.S.C. 4205(b)(2) violated due process and the division of powers as defined in the Constitution.

B. The petitioner is eligible for parole under Title 18 U.S.C. 4208(A)(2) (1979), as well as under statutory parole eligibility criteria 28 C.F.R. 2.18, and should be released on parole.

C. The Parole Guidelines, 1976 P.C.R.A., are illegal, violate the intent of Congress, and the ex post facto clause.

D. The parole board is bound by its own rules and regulations in considerations for parole, and the laws and Constitution of the United States.

E. The district court erred in its opinion filed on October 17, 1978 and missed the thrust of the issues at 78-599 ... in its reliance on West. Supp. 1977.

F. The parole board guidelines applied were incorrect.

G. The parole board denied Matthews assistance of counsel by their actions.

The arguments listed under B, F and G were presented for the first time. In effect, they advance the proposition that the Parole Commission had improperly and incorrectly applied its guidelines to Matthews. Neither the district court nor this Court had the opportunity to rule on these contentions. The principal claim that seems to have been advanced in the petition for certiorari is that the application to Matthews of the guidelines constituted an ex post facto violation. ²

The Supreme Court vacated the judgment of affirmance that had been entered by this Court and remanded for further consideration in light of Weaver v. Graham, 450 U.S. ---, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981).

I.

In Weaver v. Graham, the Supreme Court found unconstitutional a Florida statute governing "gain time for good conduct" which effectively reduced "gain time" for prisoners who had been sentenced prior to the enactment of the new statute. Under the older statute, prisoners gained 5 days per month during the first two years of a sentence, 10 days per month during the third and fourth years, and 15 days per month thereafter. Under the newer statute the gain time was reduced to 3, 6 and 9 days per month respectively during the same time periods.

Analyzing the Florida statute, the Supreme Court found that it had failed both elements of the ex post facto test: retrospective effect and detrimental impact. First, the Supreme Court held that the statute was retrospective because it applied to all prisoners then incarcerated in Florida, including those sentenced prior to the enactment of the statute. 450 U.S. at 28, 101 S.Ct. at 964. Second, it declared that the statute was detrimental or disadvantageous to the prisoners because "on its face, the statute reduces the number of monthly gain time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks. By definition, this reduction in gain time accumulation lengthens the period that someone in petitioner's position must spend in prison * * * thus the new provision constricts the inmate's opportunity to earn early release, and thereby makes more onerous the punishment for crimes committed before its enactment." Id. at 31, 101 S.Ct. at 966. The practical effect of the newer statute was to extend Weaver's required time in prison, assuming good behavior, over two years beyond that which he could have expected at the time of his sentencing.

The Supreme Court rejected the argument by Florida that the statute was not retrospective because gain time was not part of the original sentence and thus not part of the punishment annexed to the crime. To the contrary, the Supreme Court reasoned that gain time is one determinant of the prison term and that a sentence or punishment is effectively changed when the determinant is changed. Further, the Supreme Court noted that it has held a statute retrospective even when it alters punitive conditions outside of the sentence. 28-31, 101 S.Ct. at 964-966. For prisoners who were sentenced prior to the enactment, the challenged Florida statute substantially altered the consequences attached to the crime. Only retrospective law which does not alter the consequences to a prisoner's detriment escapes the ex post facto prohibition. The Supreme Court proceeded to hold that the Florida statute materially constricted to his detriment the petitioner's opportunity to earn gain time. This limitation, explained the Court, violates the ex post facto clause notwithstanding the fact that the award of gain time is discretionary. The Supreme Court's holding in this regard was based on two cases involving parole opportunities: Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937), and Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass.1967) aff'd 390 U.S. 713, 88 S.Ct. 1409, 20 L.Ed.2d 250 (1968). The net effect of Weaver, as applied here, would appear to render violative of the ex post facto clause a statute which operates retrospectively and which significantly diminishes a prisoner's opportunity to reduce his period of incarceration and thereby increases his punishment.

The reasoning of the Supreme Court in Weaver v. Graham would appear to strengthen the views expressed by this Court in Geraghty. We concluded in Geraghty that there is a potential violation of the ex post facto clause in the retrospective application of new guidelines promulgated by the United States Parole Commission when they were applied to prisoners who were sentenced prior to enactment of the statute in 1976. This same rationale may apply to Matthew because he was sentenced in 1975.

In Geraghty the prisoners were sentenced under 18 U.S.C. § 4208(a)(2), the statute which was in effect prior to the enactment of the Parole Commission Reorganization Act, 18 U.S.C. §§ 4201-4218 (1976). Consequently, they had been immediately eligible for parole at the discretion of the Parole Board in accordance with 18 U.S.C. § 4206. Section 4206 empowered the Board to release a prisoner when the Board determined that there was a reasonable possibility that the prisoner could live and remain at liberty without violating the laws and such release would not be incompatible with the welfare of society. With the...