The opinion of the court was delivered by: CALDWELL
The petitioner has filed objections to the report of the Magistrate and a brief in support of the objections. The Magistrate upheld the action of the United States Parole Commission in basing plaintiff's presumptive range of incarceration on guidelines that were in effect on the date of petitioner's initial parole hearing (in 1983), rather than those in effect on the date of his crime (in 1981). Essentially plaintiff's contention is that Judge Conaboy's ruling of September 14, 1984, in United States ex rel. Forman v. McCall, 709 F.2d 852 (3d Cir. 1983), on remand Civil No. 81-0553 (M.D. Pa. Sept. 14, 1984), appeal after remand, 776 F.2d 1156 (3d Cir. 1985), should be applied retroactively. Judge Conaboy ruled in Forman, that parole guidelines, woodenly applied, are laws subject to the ex post facto clause of the United States Constitution (Art. I, Sec. 9). The issue there is whether Forman is to be applied retroactively to this case.
The Magistrate concluded the outcome of this case is controlled by Leonzi v. Parole Commission, M.D. Pa. 84-1684 (May 24, 1985), in which Judge Rambo ruled against retroactive application of Forman, by adopting a well reasoned Magistrate's report which concluded the Forman relief should be granted prospectively only; that is to parole hearings held subsequent to September 14, 1984 and to habeas corpus petitions which raised the issue and were pending on September 14, 1984. Plaintiff in his brief does not address the result reached in Leonzi. We conclude that the Magistrate's decision as to the reasons which require restrictions on the retroactive application of Forman are sound and should be followed. As concluded in Leonzi, the retroactive application of Forman would indeed impose severe hardships on the Parole Commission, and an ample basis exists for avoiding this hardship by holding that Forman be applied prospectively. See Chevron Oil Co. v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971).
On August 16, 1985, subsequent to Judge Rambo's ruling in Leonzi, supra, Judge Conaboy decided the case of Williams v. United States Parole Commission, 617 F. Supp. 470 (M.D. Pa. 1985). In a thorough opinion on the subject of retroactivity Judge Conaboy rejected the retroactive application of the result reached in Forman, supra. His opinion correctly points out that not all legal rulings are susceptible of retroactive application, and he reviewed a number of appellate decisions bearing on the question. Relying on the criteria for retroactivity established by the United States Supreme Court in Solem v. Stumes, 465 U.S. 638, 104 S. Ct. 1338, 79 L. Ed. 2d 579, U.S. (1984), Judge Conaboy concluded by stating:
Thus, considering the Commission's current caseload it is plain that retroactive application of the " Forman Rule" would, in the terms of Solem, supra, have a significant negative impact on the administration of justice. We cannot justify this negative impact in a context where the complaint does not implicate the fundamental issue of petitioner's innocence or guilt.
Because we agree with Judges Conaboy and Rambo that Forman should be applied prospectively, plaintiff's objections to the Magistrate's report will be denied.
AND NOW, this 26th day of August, 1985, upon consideration of the Report of the United States Magistrate filed on July 12, 1985, and objections thereto, and upon independent review of the record, IT IS ORDERED THAT the Magistrate's Report is adopted. IT IS FURTHER ORDERED, pursuant to the Magistrate's recommendations, that:
1. Plaintiff's petition for writ of habeas corpus is denied.
2. The Clerk of Court shall close ...