George T. Phillips v. Edward J. Brennan, Bureau of Prisons and United States Parole Commission

969 F.2d 384, 1992 U.S. App. LEXIS 16578, 1992 WL 168525
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 22, 1992
Docket91-1980
StatusPublished
Cited by4 cases

This text of 969 F.2d 384 (George T. Phillips v. Edward J. Brennan, Bureau of Prisons and United States Parole Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
George T. Phillips v. Edward J. Brennan, Bureau of Prisons and United States Parole Commission, 969 F.2d 384, 1992 U.S. App. LEXIS 16578, 1992 WL 168525 (7th Cir. 1992).

Opinions

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 ac[386]*386tual 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).

[387]*387On 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 [CJommission complied with the disclosure requirements contained in 18 U.S.C. § 4208(b) and (c) and in 28 C.F.R.

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969 F.2d 384, 1992 U.S. App. LEXIS 16578, 1992 WL 168525, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-t-phillips-v-edward-j-brennan-bureau-of-prisons-and-united-ca7-1992.