Opinion
Civil Action No. 04-00860.
June 9, 2004
REPORT AND RECOMMENDATION
Currently before the Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated at the State Correctional Institution in Dallas, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied and dismissed.
I. PROCEDURAL HISTORY
Following a bench trial before the Honorable S.M. Lehrer in the Philadelphia Court of Common Pleas, petitioner was convicted, on July 27, 1992, of rape. Judge Lehrer sentenced the petitioner to three years six months to twenty years.
The Pennsylvania Board of Probation and Parole ("Board") reviewed petitioner's case and denied parole five times. The Board first reviewed the case on May 25, 1999, and found "that the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole." See Answer to Petition for Writ of Habeas Corpus, at Exhibit B [hereinafter "Exhibit B"]. At the next evaluation on June 12, 2000, the Board used the same language as in the previous evaluation and denied parole. Id. The Board denied parole a third time on December 28, 2001 and reasoned "that the fair administration of justice cannot be achieved through [the petitioner's] release on parole." Id. On August 26, 2002, the Board issued its fourth denial, stating that it has "considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq." Id. Finally, on January 7, 2004, the Board denied release and noted that all required matters were considered with respect to the amended Parole Act of 1941. Id.
Prior to the issuance of the fourth parole decision, petitioner filed a Petition for Review, on July 8, 2002 with the Commonwealth Court of Pennsylvania, alleging an ex post facto violation, but did not specify which parole decision he wished to appeal. On November 21, 2002, the Board filed an Application for Summary Relief, which was granted on December 13, 2002. The petitioner appealed, but the Pennsylvania Supreme Court affirmed the order in February of 2004. Petitioner filed this Petition for Writ of Habeas Corpus on March 3, 2004.
In light of these recurrent denials and failure to find relief in the state court system, petitioner has filed a Petition for Writ of Habeas Corpus claiming (1) that the retroactive application of the 1996 changes in the 1941 parole statute, rules, guidelines, and policies governing a discretionary parole scheme violate the Ex Post Facto clause and (2) that the Board retaliated against him.
Petitioner, in his Traverse, also accuses the Parole Board of discrimination against sex offenders during parole hearings. Aside from being improperly raised, this claim is invalid and without merit, as a prisoner's crime may be taken into account in a parole hearing. 61 P.S. § 331.19.
II. MERITS
A. Ex Post Facto Claim
Petitioner's first challenge to his parole denial invokes the Ex Post Facto clause of the United States Constitution. U.S. CONST. Art. 1, § 10. The petitioner notes that the policy statement of the Parole Act, defined in § 1, was amended in 1996, and although he was convicted and sentenced prior to the implementation of that change, he claims that the amendment was nonetheless improperly used as a basis for his parole denials. Upon consideration of particular facts in the case before us, the Court must disagree.
The Ex Post Facto clause of the United States Constitution applies to a statutory or policy change that "retroactively alter[s] the definition of crime or increase[s] the punishment for criminal acts" California Dep't of Corrections v. Morales, 514 U.S. 499, 505, 115 S.Ct. 1597, 1601 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 2719 (1990)). In order for a new law to violate the Ex Post Facto clause, a petitioner must prove two elements. First, it must be retrospective, in that it "appl[ies] to events occurring before its enactment." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 965 1981); see also Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001). Second, the new law must "disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964 (1981); Coady, 251 F.3d at 488. Therefore, if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it does not offend the ex post facto prohibition. See Dobbert v. Florida, 432 U.S. 282, 293, 97 So. Ct. 2290, 2298, reh'g denied, 434 U.S. 882, 98 S.Ct. 246 (1977) ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.").
In the case at bar, the "new law" challenged by petitioner comes in the form of an alteration in the parole laws and parole decision-making policies. From 1941-1996, the Parole Act established the following policy:
The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole act to create a uniform and exclusive system for the administration of parole in this Commonwealth.
Act 1941, Aug. 6, P.L. 861, § 1. Pursuant to the Operating Guidelines, the Parole Board was required to give weight to a variety of factors, including Department of Corrections recommendations, the seriousness of the offense, the length of sentence, institutional adjustment, the strength of the parole plan, testimony from victims, opinions of the sentencing judge, job training, treatment and therapy programs and participation in educational programs. 61 P.S. § 331.19; Mickens-Thomas v. Vaughn, 321 F.3d 374, 378, 386 (3d Cir. 2003). As characterized by the Third Circuit Court of Appeals:
Specifically, 61 P.S. § 331.19 states:
It shall be the duty of the board, upon the commitment to prison of any person whom said board is herein given the power to parole, to consider the nature and circumstances of the offense committed, any recommendations made by the trial judge and prosecuting attorney, the general character and background of the prisoner, participation by a prisoner who is serving a sentence for a crime of violence . . . in a victim impact education program offered by the Department of Corrections and the written or personal statement of the testimony of the victim or the victim's family . . . The board shall further consider the notes of testimony of the sentencing hearing, if any, together with such additional information regarding the nature and circumstances of the offense committed for which sentence was imposed as may be available. The board shall further cause the conduct of the person while in prison and his physical, mental and behavior condition and history, his history of family violence and his complete criminal record, as far as the same may be known, to be reported and investigated.
61 P.S. § 331.19.
Pre-1996 a prisoner could be denied parole because of public safety concerns only if those concerns together with other relevant factors outweighed, by a preponderance, the liberty interests of the inmate . . . Moreover, the Board had to weight all factors, militating for and against parole, and make its decision on the totality of the factors pertinent to parole, and give appropriate weight to the interests of the inmate. Heavy foot application on one factor could not have been the basis of granting or rejecting parole.Id. at 385, 386.
In 1996, section 1 of the Parole Act was amended and a new public policy statement was issued as follows:
In providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders.61 P.S. § 331.1. As described by the Third Circuit Court of Appeals, this policy alteration resulted in the Parole Board applying significantly more weight to the public safety interest. "The 1996 policy change placed first and foremost the public safety [interest] to the disadvantage of the remaining liberty interest of the prisoner. . . . The Pennsylvania courts have suggested that the 1996 public safety directive has caused the Board to review the petitions of violent offenders with redoubled scrutiny . . ." Mickens-Thomas, 321 F.3d at 385.
In Mickens-Thomas v. Vaughn, supra, the Third Circuit faced a challenge to that amendment by prisoner Thomas, who had been sentenced to a life term in 1969, but whose sentence had been commuted by the Governor. Id. at 376-377. When he came up for parole, however, the Board, in an August 1997 decision, denied release, notwithstanding his good conduct record, favorable recommendation from the Department of Corrections and his participation in treatment and other institutional programs. Id. at 377. Thereafter, he challenged this denial on the grounds that the Parole Board improperly utilized the 1996 amendment. Id. at 383.
Reviewing the application of this parole change to the petitioner, the Third Circuit determined that "the parole change substantially impacted [the petitioner] in violation of the Ex Post Facto Clause." Id. at 393. It noted that there was "significant evidence that [the Parole Board] acted upon policies that were established after [the petitioner]'s crime and conviction." Id. at 387. It went on to explain that:
a parole decision that fails to address any of the criteria mandated by Board policy . . . and instead utterly ignores all factors counseling in favor of release, falls outside of the realm of the legitimate exercise of discretion under the pre-1996 policies.Id. at 387. Ultimately, the Court concluded that "to retroactively apply changes in the parole laws made after conviction for a life sentence in Pennsylvania that adversely affect the release of prisoners whose sentences have been commuted, violates the Ex Post Facto clause." Id. at 393.
While we remain cognizant of the pronouncements from our Court of Appeals, consideration of other jurisprudence on this issue justifies our distinguishing the case before us in several respects. Notably, just prior to the Third Circuit's issuance of its Mickens-Thomas decision, the Pennsylvania Supreme Court published its ruling in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002). Facing an ex post facto argument identical to that raised in Mickens-Thomas, the Pennsylvania Court held that "[t]he rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense." Id. at 691-692. It went on to explain that:
Both versions of § 331.1 leave the decision regarding the grant of parole within the discretion of the Board; the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht's punishment.Id. at 692. The court concluded that the mere "[r]eordering of considerations for necessary decisions within an unchanged penalty do not rise to an ex post facto violation."Id.
The Pennsylvania Supreme Court, in its December 2003 decision of Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. 2003), reaffirmed this stance and held that "[a]lthough the phrases `protect the safety of the public' and `assist in the fair administration of justice' were added in 1996, these concepts have always been underlying concerns. Both versions of § 331.1 leave the grant of parole within the discretion of the Board. Adding language which clarified the policy underlying the parole process does not make appellant's punishment more severe; his maximum sentence remains the same."Id. at 688.
Shortly thereafter, the Third Circuit, in Mickens-Thomas, acknowledged the Pennsylvania Supreme Court's clarification that the amended § 331.1 does not constitute binding language requiring the Parole Board to place the greatest weight on considerations of public safety. Id. at 391. It held, however, that the Winklespecht decision, "made after the Board's actions on Thomas's parole, came too late to alter the Board's view of the statutory amendment on the outcome of the case."Id. at 391 (emphasis in original). The Third Circuit went on to explain that "[n]ot having the benefit of the Supreme Court decision, the evidence before us shows that the Board interpreted § 331.1 to mandate foremost the consideration of public safety. The Board mistakenly construed the 1996 statutory change to signify a substantive change in its parole function." Id. As the Board was apparently uninfluenced by the subsequent court interpretation of the statute, the Third Circuit continued to find an ex post facto violation. Id.
In the case at bar, petitioner argues that he was disadvantaged by the application of the 1996 amendment to his parole decisions. The petitioner apparently challenges all five of his parole denials. The Court, however, focuses solely on the January 2004 decision.
This Coury finds any alleged problems with his first four hearings to be moot. Ex Post Facto violations in those earlier hearings would be remedied by our ordering a new review by the Board. As petitioner has already received a fifth review, that decision is the only one ripe for consideration.
The January 2004 parole decision explicitly stated that the board has "considered all matters required pursuant to the Parole Act of 1941 as amended, 61 P.S. § 331.1 et seq." See Exhibit B. The Board listed its reasons for the fifth denial:
Your need for treatment; failure to participate in and benefit from a treatment program, as recommended by doc[tor] for sex offenders, and an unfavorable recommendation from the department of corrections.Id. Therefore, the Board not only stated that it took the required factors into account but also noted the specific reasons why the petitioner has been denied parole. These reasons are in line with the pre-1996 requirements of the Act.
61 P.S. § 331.19, supra Note 3.
Furthermore, the January 2004 Board decision occurred after the Pennsylvania Supreme Court held in Winklespecht that the "[t]he rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense."Winklespecht, 813 A.2d at 691-692. Unlike the Board inMickens-Thomas, the Parole Board in this case had the benefit of guidance from the Pennsylvania Supreme Court and was aware, prior to its decision, that the 1996 amendment did not change the analysis used in parole proceedings. Consequently petitioner's ex post facto claim fails.
The Court notes that, while petitioner challenged his earlier parole decisions in state court, he failed to raise any ex post facto challenge to the fifth decision, thereby rendering it unexhausted. Nonetheless, "a federal court may deny an application on the merits notwithstanding an applicant's failure to exhaust state remedies." Burkett v. Love, 89 F.3d 135, 138 (1996). Therefore, in the interest of efficiency, petitioner's claim is dealt with on its merits.
B. Retaliation Claim
The petitioner claims that the Board denied his parole on the fifth review of his file in order to "retaliate" against him for appealing previous denials. For the reasons which follow, this claim is denied and dismissed.
The substantive due process claim raised by petitioner has likewise not yet been exhausted. The Pennsylvania Supreme Court, in Rogers v. Pennsylvania Board of Probation and Parole, noted that while "appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional violations against the Parole Board through a writ of mandamus." Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319, 323 (Pa. 1999). The trend with District Courts within the Third Circuit has deem ed that allegations of constitutional violations must be exhausted. See Hargrove v. Pennsylvania Bd. Of Probation and Parole, Civ. No 99-1910, 1999 WL 817722 (E.D. Pa. Oct. 12, 1999); Carter v. N.P. Muller, 45 F. Supp.2d 453 (E.D. Pa. 1999); Cohen v. Horn, Civ. No. 97-7175 1998 WL 834101 (E.D. Pa. Dec. 2, 1998). How ever, as "a federal court may deny an application on the merits notwithstanding an applicant's failure to exhaust state remedies." Burkett, 89 F.3d at 138, the Court evaluates the claim on the merits.
An "agency violate[s] substantive due process in grounding its action on `constitutionally impermissible reasons,'" and "[c]ase law has established that a state may not bar parole in retaliation for a prisoner's exercise of his constitutional rights." Burkett, 89 F.3d at 139-140. Consequently, the Third Circuit recognizes that "an allegation[,] that parole was denied in retaliation for the successful exercise of the right of access to the courts[,] states a cognizable claim for relief." Id. at 142; see also Mickens-Thomas v. Vaughn, 321 F.3d 374 (holding that a parole board may not decide a case for retaliatory purposes.)
Yet, the information presented in the Parole Board's reasoning shows that the petitioner's poor disciplinary record provided sufficient grounds for the denial of his parole. The Third Circuit has held in Coady that "federal courts are not authorized to second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision." Coady, 251 F.3d at 487. The petitioner has received an unfavorable evaluation from the Department of Corrections and has failed to "participate in and benefit from a treatment program" for sex offenders. See Exhibit B. Therefore, a basis for the challenged decision does exist. The petitioner's claim fails to show that but for the retaliation, the petitioner would have been granted parole.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.