# Opposition — United States v. Addonizio

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1436%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 178

## Text

—~ 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

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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.

EE ee ee re

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1436%3A06. Public record. Not legal advice.