Pharaoh Nkosi v. Warden Allenwood FCI Low

• Court: Court of Appeals for the Third Circuit
• Decided: February 8, 2024
• Docket: 22-3187
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 22-3187 __________

PHARAOH OJORE NKOSI, a/k/a Brian Keith Garries, Appellant

v.

WARDEN ALLENWOOD FCI LOW ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1-21-cv-02166) District Judge: Honorable Yvette Kane ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) February 7, 2024 Before: KRAUSE, MATEY, and CHUNG, Circuit Judges

(Opinion filed: February 8, 2024) ___________

OPINION * ___________

PER CURIAM

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Pharaoh Ojore Nkosi appeals the District Court’s order denying his petition filed

pursuant to 28 U.S.C. § 2241. For the reasons that follow, we will affirm the District

Court’s judgment.

In 1983, Nkosi was sentenced to life in prison after being convicted by a court-

martial of the premeditated murder of his pregnant wife. The United States Air Force

Court of Military Review and the United States Court of Military Appeals affirmed his

conviction and sentence. United States v. Garries, 19 M.J. 845, 869 (A.F.C.M.R. 1985),

aff’d, 22 M.J. 288 (C.M.A. 1986). His sentence was later reduced by the Air Force

Clemency and Parole Board to 89 years. Although he has applied for parole several

times, the United States Parole Commission has denied his applications.

In 2021, Nkosi filed a § 2241 petition in which he alleged that because he was 20

years old at the time of the murder in 1981, he was entitled to have the Parole

Commission’s guidelines for youth offenders in existence at the time of his offense

applied to his applications for parole. He asserted that the Commission later streamlined

the youth and adult offender guidelines into one set of guidelines and argued that the

Commission’s use of those new guidelines in 1999 to calculate his customary time to be

served before release violated the Ex Post Facto Clause. He also argued that under the

former youth guidelines, he was entitled to a parole hearing every 12 months as opposed

to every 24 months under the new guidelines. The District Court concluded that Nkosi’s

Ex Post Facto claim was without merit and that the Commission had not abused its

2 discretion when it denied him parole. Nkosi filed a timely notice of appeal, and we have

jurisdiction pursuant to 28 U.S.C. § 1291.

We agree with the District Court that Nkosi is not entitled to habeas relief and

have little to add to its thorough analysis. In his brief on appeal, Nkosi argues that the

Parole Commission violated the Ex Post Facto Clause as well as his right to due process

when it applied the new guidelines. He also contends that the District Court erred in

removing defendants other than the warden of his institution.

We will assume arguendo that, at the time of his offense, Nkosi would have been

considered a youth for the purposes of the youth guidelines. In order to show a violation

of the Ex Post Facto Clause, Nkosi must show that as applied to his sentence, the change

in the law created a significant risk of increasing his punishment. Garner v. Jones, 529

U.S. 244, 255 (2000). Even if Nkosi could show that the parole guidelines should be

considered laws, see United States ex rel. Forman v. McCall, 709 F.2d 852, 862 (3d Cir.

1983), he has not shown a significant risk of an increase in punishment. “[T]he ultimate

question is the effect of the change in parole standards on the individual’s risk of

increased punishment.” Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 291 (3d

Cir. 2005). Nkosi argues that the application of the new guidelines increased his

customary time to be served by 108 months. However, as explained by the District

Court, under both the new guidelines and the former youth guidelines, an offense with the

greatest severity—which Nkosi’s crime of premeditated murder clearly is—had no upper

limit for the customary time to be served before release. Nkosi has not shown that he

3 would have been granted parole if he had been considered for parole earlier or with a

shorter customary time before release calculation. Nkosi has not shown a violation of the

Ex Post Facto Clause.

Nkosi also contends that under the youth guidelines he was entitled to a parole

hearing every 12 months. He has not shown, however, a significant risk of increased

punishment based on use of the new guidelines. See California Dep’t of Corr. v.

Morales, 514 U.S. 499, 501 (1995) (holding that amendment decreasing the frequency of

parole hearings from every year to every three years did not violate the Ex Post Facto

Clause).

To the extent that Nkosi challenges the substantive decision of the Parole

Commission, he must show that there is no rational basis in the record for the decision.

See Furnari v. U.S. Parole Comm’n, 531 F.3d 241, 247-48 (3d Cir. 2008) (quoting

Gambino v. Morris, 134 F.3d 156, 160 (3d Cir. 1998)) (explaining that the Commission

need only articulate a “rational basis” for denying parole). Nkosi is now considered for

parole under 18 U.S.C. § 4206(d), which was in effect at the time of his offense. That

subsection provides that a prisoner shall be released after serving 30 years of a sentence

of more than 45 years unless the Commission determines that “he has seriously or

frequently violated institution rules and regulations or that there is a reasonable

probability that he will commit any Federal, State, or local crime.” Here, the

Commission decided both that Nkosi had seriously violated the institutional rules by

committing two assaults in 1984 and that there was a reasonable probability that he

4 would commit another crime. In its April 7, 2020 Notice of Action, it found that

“[Nkosi’s] continued failure to take responsibility for [his] criminal conduct, which

involved the killing of [his] 7 months pregnant wife, creates a likelihood he would

engage in criminal conduct if released.” ECF #12 Ex. 4. Nkosi’s premeditated murder of

his pregnant wife and his failure to take responsibility for that heinous crime provide a

rational basis for the denial of parole. And, as explained by the District Court, Nkosi has

not shown a violation of the due process clause.

Nkosi requests that the Commission be ordered to apply the youth guidelines.

However, the criteria used to determine whether he is released on parole no longer

include consideration of any parole guidelines. Compare 18 U.S.C. § 4206(a) (providing

that the Commission’s determination, inter alia, should be “pursuant to guidelines

promulgated by the Commission”) with § 4206(d) (including no reference to guidelines).

As Nkosi is not entitled to this relief, we need not address his argument that the Parole

Commission and its Commissioner were proper defendants.

For the above reasons, as well as those set forth by the District Court, we will

affirm the District Court’s judgment.