Phillips v. Holder et al

Filing 20

MEMORANDUM & OPINION - Again, Petitioner has not shown how the Commission's use of the 2000 Regulations instead of the 1972 Regulations created asignificant risk of prolonging his incarceration by making parole release more unlikely. Because Pet itioner's claim was litigated fully and Petitioner again has failed to show any possibility of success on the merits of his claim, the Court adopted Judge Carlson's Report &Recommendation. Petitioner has not established any of the grounds necessary for obtaining a motion for reconsideration. As such, the Court will deny the motion. Aseparate Order follows.Signed by Honorable Robert D. Mariani on 12/3/12. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLES PHILLIPS
Petitioner

v.

3:11·CV·1336
(JUDGE MARIANI)

ERIC HOLDER, ISAAC FULWOOD,
WARDEN B.A. BLEDSOE
Respondents
MEMORANDUM OPINION
Introduction
Before the Court is Petitioner's Motion for Reconsideration (Doc. 18) of the Court's
Order (Doc. 17) adopting Magistrate Judge Carlson's Report & Recommendation ("R&R")
(Doc. 12). For the Court to grant the Motion for Reconsideration, Petitioner bears the
burden of showing one of the following three grounds for relief: (1) there has been an
intervening change in controlling law; (2) evidence not previously available has been
discovered; or (3) there is a need to correct a clear error of law or to prevent a manifest
injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010). Petitioner has not made
any of the above showings. Instead, Petitioner raises the same arguments he made in his
Objections (Doc. 13) to Judge Carlson's R&R (Doc. 12).1

I The Court will not address Judge Carlson's determination that this action is a second and successive
petition barred by the abuse of the writ doctrine. Though Judge Carlson concluded that the relief sought by
Petitioner in his previous litigation was immediate release from prison, the district court in that case concluded
otherwise: "suits which seek relief that will render invalid the state procedures used to deny parole eligibility ... and
parole suitability ... , may be brought pursuant to § 1983 because success on such claims would not necessarily
spell speedier release." Sellmon v. Reilly, 551 F. Supp. 2d 66,84 (D.D.C. 2008) (quoting Wilkinson v. Dotson, 544

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Analysis

Res judicata
"Res judicata requires a showing that there has been (1) a final judgment on the
merits in a prior suit involving (2) the same claim and (3) the same parties or their privies.
United States v. 5 Unlabeled Boxes, 572 F.3d 169, 173 (3d Cir. 2009) (internal citations
omitted). "Collateral estoppel ... requires of a previous determination that (1) the identical
issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous
determination was necessary to the decision; and (4) the party being precluded from
relitigating the issue was fully represented in the prior action." Id. The Third Circuit uhas
previously noted that 'the preferred usage' of the term res judicata 'encompasses both claim
and issue preclusion.'" Id. (citing Venuto v. Witeo Corp., 117 F.3d 754, 758 n.5 (3d Cir.
1997)).
A careful reading of the D.C. Circuit's opinion in Philips v. Fulwood shows that in this
habeas action and Petitioner's previous § 1983 action, Petitioner advanced the same claim:
that application of the 2000 Parole Regulations rather than an earlier set of Regulations was
an ex post facto clause violation that significantly increased the risk of prolonging his
incarceration. 616 F.3d 577 (D.C. Cir. 2010). The D.C. Circuit resolved the claim on the
merits, concluding that a comparison of the 1987 and 2000 Regulations revealed that both
sets of Regulations gave the D.C. Parole Board (and later, Commission) the discretion to
U.S. 74, 82, 125 S. Ct. 1242, 161 L. Ed. 2d 253 (2005)). "Were these plaintiffs to prevail in their ex postfacto
challenge, they would gain at most a new parole hearing at which ... the USPC may, in its discretion, decline to
shorten their prison terms." Id. (quoting Wilkinson, 544 U.S. at 82, 125 S. Ct. 1242).

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upwardly depart from the guidelines. As such, the 2000 Regulations did not create a

significant risk of prolonging Petitioner's incarceration. Id. at 582. Finally, the Defendant in
the previous litigation was Isaac Fulwood, Chairman of the United States Sentencing
Commission. In this case, Petitioner again files suit against Mr. Fulwood, as one of three
Respondents.
Petitioner argues that this case is different from his previous suit because there, he
requested a comparison of the 1987 Regulations with the 2000 Regulations, whereas here,
he argues that the Parole Board should have used the 1972 Regulations or the 1987
Regulations. (Doc. 1, 1m 47,54,58,60,62). This argument is also without merit. Under
the doctrine of claim preclusion, "a final judgment on the merits of an action precludes the
parties or their privies from relitigating issues that were or could have been raised in that
action." Sheridan v. NGK Metals Corp., 609 F.3d 239,259-60 (3d Cir. 2010) (quoting Rivet
v. Regions Bank of Louisiana, 522 U.S. 470, 473,118 S. Cl. 921,139 L. Ed. 2d 912 (1998))
(internal citations and quotation marks omitted) (emphasis added). Though the 1972
Regulations were in force at the time of Petitioner's offenses in 1977, he specifically
requested the D.C. Circuit to apply the 1987 Regulations rather than the 1972 Regulations.
Phillips, 616 F.3d at 581. Petitioner chose to forego relief under the 1972 Regulations and
cannot raise the claim at this time. Thus, the D.C. Court's "judgment on the merits in acase
involving issues and parties identical to those in the case before this court meets the
requirements for res judicata." 5 Unlabeled Boxes, 572 F.3d at 174-75.

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The Merits
Petitioner, however, cites Burnside v. White for the proposition that "a decision in
another case is not res judicata as to a habeas proceeding." 760 F.2d 217,219 (8th Cir.
1985) (internal citations omitted). Assuming for the moment that, though Petitioner brought
the same claim against the same Respondent/Defendant and had a court of competent
jurisdiction resolve his claim on the merits, and that Petitioner is correct that the D.C.
Circuit's opinion has no preclusive effect on this Court, Petitioner's habeas petition would
still be denied.
Had the Court engaged in a comparison between the 1972 Regulations and the
2000 Regulations, Petitioner's ex post facto challenge would fail again. Petitioner submitted
no evidence to show that the Parole Commission significantly increased his chances of
prolonged incarceration by resorting to the 2000 Regulations, and one federal district court
has already determined that "the [D.C. Parole] Board's discretion under the 1972
Regulations was so broad that [Wilson] has not effectively pled that application of the 2000
Regulations significantly increased the risk of his longer incarceration." Wilson v. Fullwood,
772 F Supp. 2d 246,259 (D.D.C. 2011). The Wilson court explained:
Under § 105.1 of the 1972 Regulations as well as the same section of the
1981 Regulations (collectively, the "pre-1987 Regulations") the D.C. Parole
Board operated with discretion that was "almost unbridled," Sellmon /, 551 F.
Supp. 2d at 86 n. 15, and "totally unfettered," Sellmon v. Reilly, 561 F. Supp.
2d 46, 50 (D. D.C. 2008), applying loose guidelines and no formal point­
scoring system, Austin, 606 F. Supp. 2d at 9. "The pre-1987 Regulations are
thus of minimal help in demonstrating how the Board exercised its discretion
in practice prior to 1987." Sellmon /, 551 F. Supp. 2d at 86 n. 15. In other
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words, the pre-1987 Regulations gave the Board, and now the Commission,
so much discretion that the Court simply cannot compare, based on Plaintiffs
allegations, how the Commission might have evaluated parole under those
regulations with how the Commission did evaluate parole under the modern
2000 Guidelines. Given the breadth of this pre-1987 discretion and Plaintiffs
failure to plead facts sufficient to allow the Court to compare his parole
consideration under the 2000 Guidelines to consideration under the pre-1987
Regulations, Plaintiff fails to state aclaim upon which relief may be granted.
Wilson, 772 F. Supp. 2d at 267. In fact, in Petitioner's previous litigation, the United States
District Court for the District of Columbia concluded that:
Phillips still could not show that the outcome in his case would have been any
different under the pre-1987 regime, given the totally unstructured character
of the Board's parole decisions prior to 1987. Unlike the 1987 Regulations,
which based the presumption of parole eligibility on a numerical calculation
and limited the grounds on which the Board could depart to an enumerated
list, under the pre-1987 regime, the Board's discretion to grant or deny parole
was totally unfettered. It could grant parole only if, after weighing a variety of
factors, it "appeared ... that there [was] a reasonable probability that a
prisoner will live and remain at liberty without violating the law, that his
release [was] not incompatible with the welfare of society, and that he [had]
served the minimum sentence imposed...." 9 D.C.R.R. § 105 (1972). In
Phillips's case, parole was denied on the grounds that he hadn't yet
sufficiently accounted for his offense and that he presented a more serious
risk than his point score indicated. Therefore, even if Phillips could make a
factual showing that the Board would not have considered offense
accountability in making its parole determination in his case, he still would
have to demonstrate that the Board would not have exercised its unlimited
discretion to deny parole for other reasons. Given that the risk posed by an
offender was the central question in the Board's considerations pre-1987,
Phillips would likely "have been denied parole under either set of guidelines."
Glascoe v. Bezy, 421 F.3d 543, 549 (7th Cir. 2005).
Sellmon v. Reilly, 561 F. Supp. 2d 46,50 (D. D.C. 2008) (citations to record omitted)
(emphasis added). Here, Petitioner's claims fail for the same reasons articulated in
Sellmon.
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Equal Protection and Petitioner's Requested Relief
Finally, though neither party nor the R&R specifically addressed Petitioner's Equal
Protection argument, the Court concludes Petitioner has failed to state the elements of such
a claim. Petitioner complains that the 2000 Guidelines unfairly targeted "a specific class of
offender (e.g., murder, rape, multiple offenses) for harsher treatment and longer prison
terms." (Doc. 1, at 5). To prevail on an equal protection claim, a plaintiff must present
evidence that "he has been treated differently from persons who are similarly situated."
Renchenski v. Williams, 622 F.3d 315,337 (3d Cir. 2010); see also Doe ex reI. Doe v.
Lower Merion Sch. Dist., 665 F.3d 524, 551 (3d Cir. 2011) ("proof of [class-based]

discriminatory intent or purpose is required to show a violation of the Equal Protection
Clause."). However, even if Petitioner had sufficiently pled the elements of an Equal
Protection claim, it is the Court's view that, as a matter of law, Petitioner could not receive
the relief to which he believes he is entitled.
Petitioner's requested relief is "his immediate release from confinement," (Doc. 1, at
12), relief that forms the "core" of a petition for habeas corpus. See Wilkinson, 544 U.S. at
82,125 S. Ct. at 1248.
Dotson and Johnson seek relief that will render invalid the state procedures
used to deny parole eligibility and parole suitability. Neither respondent seeks
an injunction ordering his immediate or speedier release into the community..
. . [A] favorable judgment will not necessarily imply the invalidity of their
convictions or sentences. Success for Dotson does not mean immediate
release from confinement or a shorter stay in prison; it means at most new
eligibility review, which at most will speed consideration of a new parole
application. Success for Johnson means at most a new parole hearing at
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which Ohio parole authorities may, in their discretion, decline to shorten his
prison term. Because neither prisoner's claim would necessarily spell
speedier release, neither lies at the core of habeas corpus.
Id. (internal citations and quotation marks omitted). Thus, assuming that Plaintiff can make
a viable Ex Post Facto, Due Process, or Equal Protection challenge, he "would gain at most
a new parole hearing at which ... the USPC may, in its discretion, decline to shorten their
prison terms." See Sellmon v. Reilly, 551 F. Supp. 2d 66, 84 (D.D.C. 2008). Therefore, the
Court cannot grant Petitioner the relief he seeks under these claims.
Conclusion

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Again, Petitioner has not shown how the Commission's use of the 2000 Regulations
instead of the 1972 Regulations created a significant risk of prolonging his incarceration by
making parole release more unlikely. Because Petitioner's claim was litigated fully and

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Petitioner again has failed to show any possibility of success on the merits of his claim, the
Court adopted Judge Carlson's Report &Recommendation. Petitioner has not established
any of the grounds necessary for obtaining a motion for reconsideration. As such, the Court
will deny the motion. A separate Order follows.

Robert . anam
United States District Court Judge

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