Opposition — United States v. Addonizio

—~ Supreme Court, U, |

ZILE Dp"

| OCT 20 1978

MI@HAEL R@DAK, JR., CLERK

In The

Siyircme Cant of the United States

October Term, 1978

No. 78-156

UNITED STATES OF AMERICA,

Petitioner,

-—\'—

HUGH J. ADDONIZIO,

Respondent.

UNITED STATES OF AMERICA,

Petitioner,

pean

THOMAS J. WHELAN and THOMAS M. FLAHERTY.

Respondents.

BRIEF OF RESPONDENTS THOMAS J. WHELAN AND

THOMAS M. FLAHERTY, IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT.

GREENSPAN & JAFFE

Attorneys for Respondents,

Thomas J. Whelan and

Thomas M. Flaherty

180 East Post Road

White Plains, New York 10601

(914) 946-2500

LEON J. GREENSPAN

JOSEPH D. DeSALVO

Of Connsel

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TABLE OF CONTENTS

Page

TABLE OF CASES, RULES. & TEXTS... ...0c<ceeces ii

QUST RTT FETE EOD sv bn vackuascneusckeces vba I

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A. The Pawole Rotewee Bymeeee os oc oc dvs ic cccccksccecs l

B. Factual background in the case of

U.S.A. v. Thomas J. Whelan and

TRO Be os 554555 boeke vakcnsanubes l

C. The Decision of the Court of Appeals ............ 3

REASONS FOR DENYING THE PETITION ......... 4

Be rn ere ee a eh: yer ene 7

TABLE OF CASES, STATUTES,

RULES & TEXTS

Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393; 43 S.Ct. 422, 423; 63 L.Ed. 712

McAllister v. U.S., 348 U.S. 19, 25; 75 S.Ct. 6, 10;

PO Cat BCH éndasa fhe decantawlaeeds seks

The Monrosa v. Carbon Black Exports, Inc.;

359 U.S. 180, 184; 79 S.Ct. 710, 713;

S Eds Be COP REMOE 8 be Kewrudiasnds deadicucs

NLRB v. Pittsburgh S.S. Co., 340 U.S. 498;

ee RF ee np ay een

Rice v. Sioux City Memorial Park Cemetery;

349 U.S. 70, 79; 75 S.Ct. 614, 619,

OF LE, GPE GINO 4 hiinn ood naiccisah ta elinn

U.S. v. Abrams, 197 F 2d 803 (6th Cir., 1952);

cert. den. 344 U.S. 855, 73 S.Ct. 93;

FF Lady GOREN 55054 b5ee debe herb eedaaka

U.S. v. Jordan, 342 U.S. 388, 396; 72 S.Ct. 6, 10;

OP LOE DOO so ee So ey

U.S. v. Salerno, 538 F 2d 1005, rch den,

J42 F. 26 G20 (50d Cie, 1978) occ cn scccctcs

Rule 19 (1)(b), Rev. Rules of SCUS _............

33 Austr. L.J. 118 (1959)

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QUESTION PRESENTED

Whether the sentencing Court has jurisdiction pursuant to

the post-sentencing relief of 28 U.S.C. §2255 upon a showing

that the sentencing Judge’s expectations were frustrated by the

subsequent changes in criteria considered by the Parole

Commission granting or denying release, which changes

fundamentally altered the criteria previously applied in the

parole decision-making process employed by the Parole

Commission.

STATEMENT

A. THE PAROLE RELEASE SYSTEM

Subsequent to respondents’ sentencing in August of 1971,

the Parole Commission substantially changed the criteria and

procedure originally applied to parole determination. The

extent of this criteria and procedure, together with its

ramifications on the matter in issue befoie this Court is

extensively discussed on pages 2 through 4 of the Brief in

Opposition of Respondent Hugh J. Addonizio. Respondents

Whelan and Flaherty respectfully endorse the same.

B. FACTUAL BACKGROUND IN THECASE OF USA.

v. THOMAS J. WHELAN AND THOMAS M.

FLAHERTY

Respondents Whelan and Flaherty were sentenced to 15

years imprisonment on October 10, 1971 by Judge Shaw inthe

United States District Court for the District of New Jersey at

Newark after having been convicted of two counts of

conspiracy to commit extortion and 27 counts of extortion in

violation of 18 U.S.C. 1951 and 1952. At the time respondents

were sentenced the Federal parole determination guidelines

had not been adopted by the Parole Commission. Both

respondents Whelan and Flaherty were sentenced pursuant to

18 U.S.C. 4205(a) and thereby became eligible for parole in

June of 1976.

Respondents had served in excess of 50 months in Federal

custody at the time of their first hearing for parole

determination.

The respondents’ prison records were undisputably

classified as exemplary. Their records regarding their

adjustment to program, process and rehabilitation were

outstanding. As a result of the stability demonstrated by both

respondents, it was clearly apparent that no recidivistic

tendencies were present in either respondents’ record. Their

behavioral pattern demonstrated the fact that they would be of

no danger to society if they were to be released on parole.

Nevertheless, on June 12, 1976, the National Parole Com-

mission denied parole to the respondents, and continued them

for a regular review hearing in June of 1978.

The reasons given by the Parole Commission for the denials

of parole made it clear that its decision was based upon its own

evaluation of the nature and circumstance, that is the severity,

of the respondents’ offense. The respondents accordingly

appealed the parole determination to the National Appellate

Board on October 18, 1976. Upon receipt of the Appellate

Board’s affirmation of the June 12th parole denial,

respondents commenced a _ Habeas Corpus proceeding

pursuant to Title 28 U.S.C. §2255 in the United States District

Court for the District of New Jersey on November 22, 1976.

On March 3, 1977, United States District Court Judge

Biunno denied the respondents’ applications on the grounds

that the Court had no jurisdiction to make a determination on

the issues before it. Judge Biunno specifically rejected the

Third Circuit authority of United States vy. Salerno, 538 F.2d

1005, reh. den. 542 F.2d 628 (3rd Cir. 1976) and United States

v. Somers, 552 F.2d 108 (3rd Cir. 1976). He additionally

Suggested that the proper forum for the respondents’

application was the Middle District of Pennsylvania, the

District in which the respondents were incarcerated.

Respondents accordingly appealed the Biunno decision and

order to the United States Court of Appeals for the Third

Circuit, and simultaneously commenced a Habeas Corpus

proceeding pursuant to 28 U.S.C. §2241 in the United States

District Court for the Middle District of Pennsylvania. In

September of 1977, Judge Muir denied respondents’ petition

for Habeas Corpus. The District Judge further indicated that

the proper forum for the respondents’ application was the

District of New Jersey. Respondents thereafter appealed to the

United States Court of Appeals for the Third Circuit, where

the Pennsylvania appeal was consolidated with the New Jersey

appeal and then jointly heard with the Addonizio appeal taken

by the Government.

C. THE DECISION OF THE COURT OF APPEALS

The United States appealed from the reduction of the

Addonizio sentence while respondents Whelan and Flaherty

appealed from the denial of relief in both New Jersey and

Pennsylvania. The Third Circuit, in its decision, determined

that the District of New Jersey had jurisdiction to vacate and

correct the respondents’ sentences under the particular

circumstances of the case. Following its earlier decisions, the

Third Circuit held that relief may be granted to an inmate,

where the import of the original sentence had been sub-

stantially changed as a result of the application by the Parole

authorities of a set of guidelines and procedures not in

existence at the time of sentencing, and where those new

guidelines and procedures actually frustrated the reasonable

intention and expectations of the Sentencing Judge at the time

of sentencing. The decision of the Third Circuit specifically

rejected the reasoning of Judge Biunno’s jurisdictional denial

of respondents’ application. The Third Circuit remanded the

respondents’ application to Judge Biunno for reconsideration

on the merits in light of the comment set forth in the Circuit

Court decision.

0

REASONS FOR DENYING THE PETITION

The primary thrust of Petitioner’s application for certiorari

centers around the proposition that the decision of the Third

Circuit is in direct conflict to the Circuit Court opinions of the

First, Second, Sixth, Seventh and Ninth Circuits. While

respondents do not dispute that there is a conflict in the

Circuits regarding this issue, it is respondents’ position that

conflict between jurisdiction, standing by itself, does not

satisfy the jurisdictional requirement for certiorari. Rule

19(1)(b) of the Revised Rules of the Supreme Court of the

United States states:

“A review on certiorari is not a matter

of right, but of sound judicial discretion,

and will be granted only where there are

special and important reasons therefor.

The following while neither controlling

nor fully measuring the Court's dis-

cretion indicate the character of reasons

which will be considered:

“(b) Where a Court of Appeals has

rendered a decision in conflict with the

decision of another Court of Appeals on

the same matter:...” (emphasis added)

Under color of the above Rule this Court usually will grant

certiorari where the decision of the Federal Court of Appeals,

as to which review is sought, is in direct conflict with the

decision of another Court of Appeals on the same matter of

Federal law, or on the same matter of general law as to which

Federal Courts can exercise independent judgments.

Therefore, a square and irreconcilable conflict ordinarily will

be enough to secure review.

Despite this basic premise there is increasing evidence that

the existence of a conflict, without more, is not always enough

to convince the Court that certiorari should be granted.

Evidence of this changing trend is contained in the words of

Mr. Justice Harlan, where he stated:

“Even where a ‘true’ conflict may be

said to exist, certiorari will sometimes be

denied where it seems likely that a conflict

may be resolved as a result of future cases

in the Court of Appeals, or where the

impact of the conflict is narrowly con-

fined, and is not apt to have continuing

future consequences, as where a statute

which has given rise to conflicting inter-

pretation has been repealed or is to

expire. The nub of all these qualifica-

tions is that a conflict of decision may be

safely relied on as a ground for certiorari

only in instances where it is clear that the

conflict is one that can be effectively

resolved only by the prompt action of the

Supreme Court alone.”

(Some Aspects of the Judicial Process in the Supreme Court of

the United States, 33 Aust. L.J. 108 (1959) ).

A review of this Court’s denials of certiorari and subsequent

dismissals of the grant of certiorari after certiorari had been

granted, reveals this Court’s concern that something more

than mere conflict between Circuit Courts exist in order for

certiorari to be granted.

The granting of certiorari is a judicial determination and not

an administerial function. The quality of the petition must be

carefully weighed by the Court. The Monrosa v. Carbon Black

Exports, Inc., 359 U.S. 180, 184; 79 S.Ct. 710, 713: 3 L.Ed. 2d

723 (1959). This Court, in dismissing certiorari, in the above

cited case stated:

“While this Court decides questions of

public importance, it decides them in the

context of meaningful litigation. Its

function in resolving conflict between the

Courts of Appeals is judicial, not simply

administrative or managerial.”

In United States y. Abrams, 197 F.2d 803 (6th Cir. 1952);

cert. den. 344 U.S. 855: 73 S.Ct. 92; 97 L.Ed. 664 (1952), this

Court denied certiorari despite the fact that the finding of the

Sixth Circuit was in direct conflict with determinations

rendered by the Third Circuit and the respondent acknowledg-

ed the conflict.

Similarly, there have been numerous Cases reviewed by this

Court wherein certiorari was dismissed after certiorari had

first been granted. The common thread in each of these cases

was first discussed in Layne & Bowler Corp. v. Western Well

Works, 261 U.S. 387, 393; 43 S.Ct. 422, 423: 63 L.Ed. 712

(1923), where this Court Stated that:

“Certiorari is granted only in cases

involving Principles, the settlement of

which is important to the public as dis-

tinguished from that of the parties, and in

cases where there is a real and

embarrassing conflict of Opinion and

authority between the Circuit Courts of

Appeals.”

See also NLRB y. Pittsburgh S.S. Co., 340 U.S. 498: 71 S.Ct.

453, 95 L.Ed. 479: U.S. y. Jordan, 342 U.S. 388, 396: 72 S.Ct.

286, 287; 96 L.Ed. 321 (1952); McAllister v. U.S., 348 U.S. 19,

25; 75 S.Ct. 6, 10, 99 L.Ed. 2 (1954); Rice v. Sioux City

Memorial Park Cemetery, 349 U.S., 70, 79; 75 S.Ct. 614, 619-

620; 99 L.Ed. 897 (1955). Respondents acknowledge that a

conflict in circuits does exist. However, the additional

elements necessary in order to grant certiorari do not exist in

the instant case. The implications of the Third Circuit decision

are personal to the litigants, extremely narrow and limited in

scope. The Third Circuit deliberately and cautiously restricted

its holding to those types of cases where the sentence was

imposed priors to the publication of the new guidelines in 1973,

and where it could be clearly established that the new

guidelines and procedures resulted in requiring the inmate to

serve an appreciably longer term of imprisonment than could

have been reasonably expected or intended at the time of the

imposition of sentence.

Despite the fact that petitioner's application demonstrates

an acknowledged conflict in jurisdiction, it is patently

defective in establishing the fact that the matter posed for

consideration is of importance to the public as distinguished

from its prime importance to the parties. In addition, petition

fails to establish, that the Third Circuit opinion is apt to have

substantial continuing future consequences that can only be

resolved by Supreme Court intervention. The two cases

presented to this Court clearly lack the essential special

circumstances which must exist in order for certiorari to be

granted, despite the patent conflict of circuits.

CONCLUSION

The petition for Writ of Certiorari should be denied.

Dated: White Plains, New York

October 13, 1978

Respectfully submitted,

GREENSPAN & JAFFE

Attorneys for Respondents

Thomas J. Whelan and

Thomas M. Flaherty

180 East Post Road

White Plains, New York 10601

(914) 946-2500

LEON J. GREENSPAN

JOSEH D. DeSALVO

Of Counsel.

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