ON REMAND FROM THE UNITED STATES SUPREME COURT No. 79-6574
Before Adams, Hunter and Higginbotham, Circuit Judges.
Kenneth Matthews was convicted for maliciously damaging by means of an explosive a vehicle used in interstate commerce; for illegally making a destructive device; for the unregistered possession of a destructive device; and for mail fraud. 18 U.S.C. §§ 2, 371 and 844; 26 U.S.C. §§ 5861(f), 5871; 26 U.S.C. §§ 5861(d) and 5871; 18 U.S.C. § 1341. A sentence of 15 years incarceration was originally imposed on April 23, 1975.*fn1 The convictions were affirmed by this Court in a judgment order dated March 7, 1976. 532 F.2d 746 (3d Cir. 1976) (mem.).
On May 30, 1978, Matthews filed a petition for a writ of habeas corpus, which the district court construed as a motion to vacate Matthews' sentence. In the petition, Matthews alleged:
(1) That the intent of the sentencing judge had been frustrated by the actions of the Parole Commission;
(2) That Matthews had not received an initial classification hearing within 90 days of his arrival at Leavenworth Penitentiary;
(3) That the guidelines and salient factors used by the Parole Commission changed since sentencing (April 23, 1975) and commencement of the sentence (December 1, 1977) to the detriment of appellant;
(4) That since the parole guidelines call for fifty-five months imprisonment, which is in excess of one-third of his sentence, the sentencing intent of the district judge was frustrated; and
(5) That since the district judge sentenced Matthews under 18 U.S.C. § 4208(a) (2), but parole authorities had "amended" his sentence to provide for parole eligibility under 18 U.S.C. § 4205(b)(2), the parole authorities had usurped a judicial function.
By an order dated October 17, 1978, the district judge denied the petition. In its opinion accompanying the order, the district court noted that a 55 month sentence is less than one-third of the 15 year sentence that had been imposed on Matthews. The district court stated specifically that its sentencing intent was not frustrated at all, and it had left to the discretion of the parole authorities whether to keep Matthews in prison for at least one-third of his sentence, all of his sentence, or to release him sometime during the course of his sentence.
Matthews then filed an appeal to this Court in which he repeated the same claims that he had advanced before the district court in his petition for habeas corpus, and added the argument that application of the new parole guidelines to him is prohibited by the ex post facto clause of the Constitution. He relied upon Geraghty v. U. S. Parole Commission, 579 F.2d 238 (3d Cir. 1978), which was ultimately vacated and remanded, sub nom. United States Parole Commission v. Geraghty, 445 U.S. 388, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980). This Court in considering Matthews' appeal was guided, inter alia, by the case of United States v. Addonizio, 442 U.S. 178, 99 S. Ct. 2235, 60 L. Ed. 2d 805 (1979), which held that the claim that a sentencing judge's intent was frustrated is no longer available in a collateral attack. On March 7, 1980, we affirmed the judgment of the district court. 620 F.2d 290 (3d Cir. 1980) (mem.)
Thereafter, Matthews filed a petition for a writ of certiorari to the Supreme Court on May 12, 1980. In his petition, Matthews presented the following issues for review:
A. The United States Bureau of Prisons by knowingly amending petitioner's parole eligibility to Title 18 U.S.C. 4205(b)(2) violated due process and the division ...