United States District Court, Eastern District of Pennsylvania
March 15, 2002
LOUIS MICKENS-THOMAS, PLAINTIFF,
DONALD VAUGHN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Buckwalter, District Judge.
I. STATEMENT OF THE CASE
On September 29, 1964, the body of twelve-year old Edith
Connor was found in
a narrow alley behind petitioner's shoe repair shop on 40 th
Street in Philadelphia. The properties along 40th Street had
rear wooden fences with a door leading from the back yard into
the three-foot wide alley. In the opinion of the Pennsylvania
Supreme Court (Commonwealth v. Thomas, 448 Pa. 42,
292 A.2d 352 (1972)), the following narrative appeared:
The police arrived, pronounced the girl dead at the
scene and removed the body to the morgue. The body
was then examined by one Dr. Edward Campbell, Medical
Examiner and Forensic pathologist. The deceased's
blouse had been torn and the zipper of her dungarees
(men's style) was partially ripped off. The dungarees
were also torn at the inner seams of the thighs on
both sides of the crotch. The crotch seam of the
deceased's panties was likewise torn. The cause of
death was attributed to strangulation by ligature.
There were also bruises to the skin of the neck, a
broken bone on the right side of the neck and bruises
of the voice box. Tears were found in the child's
rectum and testing ascertained the presence of acid
phosphates in the vagina.
The clothing of the deceased was delivered to the
Police Department Laboratory where brushings and
microscopic examination disclosed particles of
leather, leather dust, glue, polish, dog hairs, fiber
and chips of paint adhering to the clothing. These
findings led to the issuance of three search warrants
for the person of and premises occupied by the
appellant, which premises were located at 1109 North
40 th Street and consisted of a shoe repair shop in
the ground floor and living quarters in the rear of
the shop. The execution of these warrants resulted in
obtaining, inter alia, paint scrapings from various
parts of the premises, specimens of leather, glue,
fibers, threads and hairs, clothing of appellant, bed
sheets, bedspreads and drapes. These specimens were
delivered to the Police Department Laboratory,
analyzed by Dr. Edward J. Burke, then the Laboratory
Director, and compared with items removed from the
deceased's clothing. The Commonwealth's entire case
rested upon the testimony of Dr. Burke with reference
to the similarity of the specimens.
Petitioner was convicted by a jury of first-degree murder of
Edith Connor. He was sentenced to life imprisonment by Judge
Joseph L. McGlynn, Jr. on April 23, 1971. The sentence was
affirmed by the Supreme Court of Pennsylvania, supra.
His subsequent pro se petition for post conviction relief on
a single technical ground that the indictment did not use the
words "kill and murder" was denied. Commonwealth v. Thomas,
268 Pa.Super. 566, 408 A.2d 1148 (1979).
In 1973, a federal petition for habeas corpus was dismissed
without prejudice for failure to exhaust state remedies (E.D.Pa.
C.A. No. 73-2711).
In 1993, petitioner filed an application with the Pennsylvania
Board of Pardons.*fn1
The four members of the Board of Pardons, Attorney General
Ernest Preate, Jr., Dr. Daniel J. Menniti, Warden Thomas Frame,
and Ronald J. Harper, Esq., who heard the case (then Lieutenant
Governor Mark Singel did not hear the oral presentation),
recommended unanimously that the life sentence of petitioner,
which was computed from October 15, 1964, the day after
petitioner's arrest, be commuted from life imprisonment to a
term of imprisonment of thirty-one (31) years, nine (9) months,
six (6) days to life expiring on July 21, 1996, and if he be
released on parole in accordance with law he shall remain on
parole the balance of his life unless returned to prison for
violation of his parole.
The Board of Pardons added the following:
Mr. Thomas has served over twenty-nine years of his
sentence. He has had only five misconducts since
1971. He has continued to maintain his innocence
throughout his incarceration. He earned a Bachelor of
Arts Degree from Villanova in 1992. He completed sex
therapy and continues involvement with Alcoholics
Anonymous. Since 1987, he has worked in the Weave
Shop and has displayed excellent work habits. The
Staff, Superintendent and Commissioner all support
commutation due to the applicant's maturity and
The members of the Board of Pardons were impressed by
the strong community support for this application.
Over two dozen individuals attended the clemency
hearing on behalf of Mr. Thomas. We are confident
that he will have the necessary support to guide him
from the structured environment of prison to
productive living in society. We suggest a two year
post-dated minimum sentence date of July 21, 1996.
This will enable him the opportunity to take full
advantage of pre-release programs offered by the
Department of Corrections. At the expiration of his
minimum sentence, he will have served nearly 32 years
On January 14, 1995, Governor Robert Casey granted commutation
Therefore, Know Ye, That in consideration of the
promises and by virtue of the authority vested in me
by the Constitution, I have commuted the sentence of
life imprisonment of the said Louis C. Mickens-Thomas
from life imprisonment to the minimum term of 31
years, 9 months, 6 days to life expiring on July 21,
1996, so that if he be released on parole in
accordance with law he shall remain on parole the
balance of his natural life unless returned to the
correctional institution for violation of parole and
that the sentence of imprisonment is hereby commuted
accordingly so that he may be eligible for
pre-release consideration at the discretion of the
Dept. of Corrections. Subsequent to the date of my
signature below a conviction of a new summary,
misdemeanor or felony offense may upon a hearing by
the Board of Pardons render my granting of this
clemency null and void.
As set forth above, petitioner did not become eligible for
parole until July 21, 1996. In July of 1995, after his
commutation but before the expiration of his prison term, an act
duly passed by the legislators and applicable to the
Pennsylvania Board of Probation and Parole (hereafter the Board)
provided in part as follows:
In no case shall the board act upon an application of
an inmate whose term of imprisonment was commuted
from life to life on parole or upon an inmate who was
serving a term of imprisonment for a crime of
violence or is an inmate serving a sentence under
42 Pa.C.S. § 9712 (relating to sentences for offenses
committed with firearms) unless the inmate has served
at least one year in a pre-release center.
61 P.S. § 331.34a.
The Department of Corrections did not approve petitioner for
pre-release (Letter of June 6, 1995 — P-21). On July 22, 1996,
petitioner filed an application for release but the Parole Board
notified him that it could not act upon his application since he
had not completed one year in pre-release, citing 61 P.S. §
331.34a (See Respondent Exhibit 9 at 217, Letter to Leonard
Sosnov, Esquire dated September 25, 1996).
On November 26, 1996, petitioner filed a petition for review
in the nature of an action in mandamus invoking the original
jurisdiction of the Commonwealth Court of Pennsylvania. See
Mickens-Thomas v. Cor., 699 A.2d 792 (1997). In that case, the
Pennsylvania Board of Probation and Parole conceded that 61 P.S.
§ 331.34a could not be applied retroactively to petitioner.
While petitioner was seeking an order compelling the Board to
parole him, the Commonwealth Court denied that relief. Instead,
it directed the Board by order dated 8/12/97 to "consider and
rule on Petitioner's application for parole within ten days of
the entry of this order and, in the event of denial of the
application, transmit a written statement of the reasons for the
denial to the Pennsylvania Board of Pardons for its
consideration of whether to accept the denial or immediately
release petitioner on parole." Petitioner's November 12, 1997
notice of appeal from this judgment was quashed by the
Pennsylvania Supreme Court on 1/15/98.
Pursuant to the directive of the Commonwealth Court, the Board
considered petitioner's application for parole on August 21,
1997 and denied it. The Board asked for an evaluation by mental
health staff experienced in dealing with sex offenders and
scheduled another review for March of 1998. Also pursuant to the
Commonwealth Court's order, the Board transmitted a written
statement of its reason as follows: "Assaultive instant offense.
Very high assaultive behavior potential. Victim injury.
Unfavorable recommendation from the District Attorney.
Conviction of prior assault offense." With regard to the latter,
stipulation number 2, see infra, reads: "In 1945, Mr. Thomas
was charged with rape when he was 17 years old. The rape charge
was dismissed and a wayward minor charge was substituted. A
wayward minor charge is not an adult conviction but a juvenile
adjudication, for which Mr. Thomas was placed on probation."
On September 18, 1997, the Pardon Board by a vote of 3-2
concurred in the Board's action denying parole. The Pardon Board
at this time was composed of Lieutenant Governor Mark Schweiker,
Attorney General Michael Fisher, Warden Richard Gigliotti, Dr.
Daniel Menniti and Thomas Harper, Esquire (See Stipulations,
On October 29, 1997, petitioner filed an application for leave
to file original process with the Pennsylvania Supreme Court,
along with a petition for writ of habeas corpus seeking his
immediate release from
prison. In a per curiam order entered January 28, 1998, the
court allowed petitioner to file original process and summarily
denied the habeas petition. See Mickens-Thomas v. Vaughn, No.
158 E.D. Misc. Docket 1997.
On March 30, 1998, the Board again denied petitioner's request
for parole. The reasons given were: "Assaultive instant offense.
Very high assaultive behavior potential. Victim injury. Your
need for counseling and treatment." (Respondent's Exhibit 9 at
28). This action was taken even though petitioner was in full
compliance with the Board's stipulations from the August 1997
hearing and had "full staff support" of the Department of
A Review Summarization Report showed that petitioner had
complied with the Board's stipulation under the August 21, 1997
order. Petitioner remained free of misconducts, was recommended
for release by the Department of Corrections and was in full
compliance with the treatment programs. (See P-5(c)(e)).
Once again the Board scheduled another review for during or
after March 2000. It forwarded the reasons for its decision to
the Pardons Board which on April 21, 1998 concurred with the
decision of the Board. (Respondent's Exhibit 10 at 232).
Petitioner filed the petition now before the court on December
6, 1999. While this litigation was pending, the Board, on March
9, 2000, once again denied parole and scheduled review for March
of 2002. The following written stipulation has been entered into
by the parties:
Both parties reserve the right to argue that
the following information is irrelevant and should
not be considered by the Court. Should the Court
ultimately decide that the information is relevant
and admissible, the parties stipulate that the
following facts are true:
1. Mr. Thomas has not had any misconducts since
1990 but has incurred all of the misconducts listed
on Exhibit R-1.
2. In 1945, Mr. Thomas was charged with rape
when he was 17 years old. The rape charge was
dismissed and a wayward minor charge substituted. A
wayward minor charge is not an adult conviction but
is a juvenile adjudication, for which Mr. Thomas
was placed on probation.
3. Records have been located for 287 inmates
whose life sentences were commuted between 1942 and
the present. More than 287 life sentences were
commuted during that time period, but their records
could not be located by either the Board of Pardons
or the Board of Probation and Parole. In each case
of these 287 cases, the Governor commuted the
inmate's minimum sentence from life in prison to a
specified term of years, establishing a specific
date on which that inmate would be eligible for
parole. The records also indicate when 266 of those
287 cases were granted parole — 259 were granted
parole on their first application; seven were
denied parole on their first application but
subsequently granted parole. For those seven
inmates, the parties stipulate to the information
attached as Exhibits R2 through R8. Of the 266
inmates whose release dates are known, 228 were
paroled between 1971 and 1995.
4. From January 1, 1997 until today, 63 life
prisoners filed a total of 73 commutation
applications with the Board of Pardons. The Board
voted not to hold a public hearing on 69 of those
applications; the Board granted a hearing on the
remaining four applications. Three of those public
hearings have already
been held, and the Board ultimately voted not to
recommend commutation. The fourth public hearing
has yet to be scheduled.
When the Board of Pardons concurred in the
Parole Board's decisions not to release Mr. Thomas
in September 1997 and March 1998, the Board of
Pardons was comprised of Lt. Governor Mark
Schweiker, Attorney General Michael Fisher, Dr.
Daniel Menniti, Warden Richard Gigliotti, and
Thomas Harper, Esquire. On both occasions,
Schweiker, Fisher and Gigliotti voted to concur
with the Parole Board's decision, whereas Mr.
Harper and Dr. Menniti voted against concurrence.
During their tenure on the Board of Pardons,
Lt. Governor Schweiker and Warden Gigliotti never
voted in favor of recommending commutation of a
life sentence. As of today, Attorney General Fisher
has not yet voted in favor of recommending
commutation of a life sentence; however, he voted
in favor of holding a public hearing on three
commutation cases, one of which has not yet been
heard by the Board. Likewise, during his tenure,
Warden Gigliotti did not vote in favor of
recommending commutation of a life sentence.
However, Warden Gigliotti did vote in favor of a
public hearing in one commutation case.
5. The parties waive all objections, except for
relevance to the admission of the documents listed
on the attached list prepared by the plaintiff.
6. Each time the Board of Probation and Parole
refused to parole Mr. Thomas, the decision makers
all had access to the Parole Board's entire file,
docketed as 5308-H. Any document that was reviewed
or considered by the Board is contained in that
file. The parties waive all objections, except for
relevance, to the admission of a complete copy of
that file as redacted during discovery to replace
identifying information with a generic description
of the provider of the information (e.g.counselor,
victim, etc.) (Exhibit R9).
7. Each time the Board of Pardons concurred in
the Board of Probation and Parole's refusal to
grant parole, every member of the Board of Pardons
had access to the Board's entire file, docketed as
B-427 Session July 1994. Any document that was
reviewed or considered by the Board is contained in
that file. The parties waive all objections, except
for relevance, to the admission of that file as
provided in discovery. (Exhibit R10).
8. The parties waive all objections, except for
relevance, to the admission of an affidavit, dated
December 12, 2001, by Nelson R. Zullinger, and its
attachments. (Exhibit R11, Exhibit 11A and Exhibit
9. The parties waive all objections, except for
relevance, to the admission of respondents' chart
entitled "Life Prisoners Released by Commutation
Compared with the Total Population of Life
Prisoners (1971 through 2001)." (Exhibit R12).
10. The parties waive all objections, except
for relevance to admission of documentation
explaining the sexual offender treatment provided
by the Joseph J. Peters Institute at the State
Correctional Institute at Graterford. (Exhibit
II. STANDARD OF REVIEW
Initially, the court agrees with the petitioner's argument
with regard to exhaustion of remedies as stated in its opinion
of September 29, 2000. Accordingly its review of the
constitutional claims is de novo.
Petitioner argues that the retroactive application of changes
in rules, guidelines, policies or statutes governing a
discretionary parole scheme may violate the ex post facto
clause. As parole in Pennsylvania is governed by statutes,
regulations and internal memoranda and guidelines, it follows
that ex post facto principles are fully applicable. Citing
Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001), petitioner argues
that as stated therein:
[T]wo critical elements must be present before a
court may find that criminal or penal law violates
the ex post facto clause: (1) the law must be
retrospective, applying to events occurring before
its enactment; and (2) it must disadvantage the
offender affected by it. Id.
Thus, petitioner argues, since the Board has retrospectively
applied statutory, rule and policy changes to him, the
dispositive question is whether he has been disadvantaged by the
application of changes in law.
Although the above summary is somewhat oversimplified,
petitioner's statement of the law is substantially correct. As
an initial matter, then, the court must determine what, if any,
statutory law, rule and/or policy changes have retrospectively
been applied to petitioner.
The Pennsylvania Probation and Parole Act of 1941 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 administration and to the end it is
the intent of this act to create a uniform and
exclusive system for the administration of parole in
this Commonwealth. 1941, Aug. 6, P.L. 861, Section 1.
Petitioner then cites several Pennsylvania appellate court
cases standing for or at least supporting the petitioner's
contention that release on parole and rehabilitation under the
Pennsylvania Probation and Parole Act was viewed as consistent
with the statutory goal of protection of society. Indeed, the
petitioner points to the following conclusion appearing in the
1991 50th Annual Report of the Board:
The Board and its staff recognize that ex-offenders
can change if given the proper opportunities with
dignity and respect. Conditional release on parole
provides the offender with the opportunity for change
which simultaneously enables the Board to meet its
primary goal of the protection of society. It is
through these efforts, and the willingness of the
client to use these opportunities in a constructive
way, that the real mission of the agency is
The sentencing system in Pennsylvania permits the trial judge
to determine when a defendant may be released from prison by the
imposition of a minimum and maximum sentence. A defendant may
apply for parole at the expiration of his minimum sentence.
Petitioner references a 1989 Manual of Operating Procedure in
which the Board states at 2.2 thereof: "The Board's intentions
are not to circumvent the authority of the sentencing court and
feel that an individual should be given every consideration for
parole at the expiration of the minimum sentence."
In the 1991 50th Annual Report previously referred to, it was
reported that about 80% of inmates are granted parole
at the initial review. (Petitioner Exhibit 12 at 6). By the
first quarter of 1996, the release date on prisoner's minimum
date dropped from 80% to 29%. See Commonwealth v. Stark,
698 A.2d 1327, 1332 (Pa.Super. 1997).
Significantly, an amendment to the Probation and Parole Act in
December of 1996 amended the public policy as to parole which
now reads as follows:
The parole system provides several benefits to the
criminal justice system, including the provision of
adequate supervision of the offender while protecting
the public, the opportunity for the offender to
become a useful member of society and the diversion
of appropriate offenders from prison.
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.
Reflecting this amendment, the Board in its 1995-1997 report
stated in its Mission Statement:
The Pennsylvania Board of Probation and Parole is
committed to protecting the safety of the public,
addressing the needs of crime victims; improving
county adult probation and parole services, and
assisting in the fair administration of justice by
ensuring the custody, control and treatment of
offenders under the jurisdiction of the Board.
It seems clear that the Board has adopted the policy change
made in the 1996 amendment. In this regard, a recent case from
the Commonwealth Court of Pennsylvania contained the following:
To further support its argument, the Board offered
that even though Voss has not been paroled, the
current public policy requires the Board to seek
first and foremost to protect the safety of the
public. While acknowledging that the public policy as
to parole changed in 1996 from a client-centered
policy emphasizing rehabilitation to one that
emphasizes public safety, deterrence of crime and the
incapacitation of criminals, the Board argues that
the Section 19 standards by which an offender is
reviewed have not changed and that it employed those
standards in denying Voss' parole application.
Voss v. Pennsylvania Board of Probation and Parole,
788 A.2d 1107, 2001 WL 1584398 (Pa.Cmwlth. 2001).
The statistical data from the state's records presented by
petitioner tends to show that violent offenders now may face a
significant likelihood of serving more time in prison and thus
have been disadvantaged by the change in the law in 1996.*fn2
In the Voss case cited above, the Board argued that the
Section 19 standards by which an offender is reviewed have not
changed from the 1941 Act (which is substantially correct
although some changes not pertinent to this argument were made).
See 61 P.S. 331.21(a).
However, under the jurisprudence of this circuit (see Coady,
supra) and the Supreme Court (Garner v. Jones, 529 U.S. 244,
120 S.Ct. 1362, 146 L.Ed.2d 236 (2000)), if petitioner
demonstrates by evidence drawn from the state's record that a
rule's practical application, retrospectively, by the agency
charged with exercising discretion will result in a longer
period of incarceration than under the earlier rule, the ex
post clause is violated.
The state correctly points out that petitioner's claim has to
be more than mere speculation. That is to say, there must be
clear knowledge that the retroactive application of the rule
increases, to a significant degree, the likelihood or
probability of prolonging petitioner's incarceration.
The statistical evidence of offenders charged with crimes of
violence who are now less likely to get paroled may not be
sufficiently complete as the state argues to prove that the
retroactive application of any new law, rule or guideline of the
Board has increased to a significant degree the likelihood of
prolonging a prisoner's incarceration.
But those statistics cited by petitioner coupled with the
stipulations 3 and 4 in this case and the history of
petitioner's unsuccessful application in March of 1998, despite
having seemingly complied with all prerequisites for parole,
demonstrate that the agencies responsible for exercising
discretion have retroactively applied the 1996 policy provision
to petitioner, and this has increased to a significant degree
the likelihood that petitioner will be in jail longer than if
the pre-1996 policy would have been followed. It does not follow
that petitioner should now be released. I agree with the state
that what petitioner is entitled to have is that the Parole
Board consider his application under the pre-1996 law.
Petitioner has also raised the argument that he was denied due
First, petitioner states that since he had a reasonable and
objective expectation of release on parole, he had a liberty
interest in parole which was violated by the parole refusal of
March 19, 1998. However, this is not the case in Pennsylvania
where parole is merely a possibility, an act which lies solely
in the discretion of the Board. Like the case which petitioner
cites in support of his argument, Greenholtz v. Nebraska Penal
Inmates, 422 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the
language and structure of Pennsylvania's Probation and Parole
Act provides a mechanism for parole that is entitled to some
constitutional protection. Petitioner has not pointed out how
that mechanism is constitutionally defective other than his
parole was refused. That clearly is not sufficient.
Petitioner makes a more thorough and detailed argument that he
was denied substantive due process in that the refusal to parole
him was arbitrary, capricious and fundamentally unfair. The
thrust of petitioner's argument can be summarized from his brief
at page 26:
Pennsylvania law required the Parole Board to grant
parole unless it had concluded that petitioner was
not rehabilitated and suitable for release into
society. As we have demonstrated, the Pennsylvania
statutory scheme did not permit a denial of parole
based solely on the nature of the crime or the
defendant's pre-offense behavior. Thus, as in
Greenholtz, 442 U.S. at 10, 99 S.Ct. 2100, the
Pennsylvania statutory scheme involves a
"discretionary assessment of a multiplicity of
imponderables, entailing primarily what a man is and
what he may become rather than simply what he had
done." The Parole Board has "the fact-finding duty of
determining in each case when the conditions
prescribed by the legislature for provisional release
from confinement have been complied with . . ."
Commonwealth ex rel. Banks v. Cain, 345 Pa. 581,
28 A.2d 897, 901 (1942).
In this case, the statutory mandate was completely
ignored by the Parole Board. The Board's publicly
stated reasons may appear rational, but, as we have
demonstrated, the reasons were boilerplate, based
solely on the offense committed over 33 years
The petitioner's contention is flawed, however.
Stipulation 6 provides that each time the Board refused parole
to petitioner, the decision maker had access to the Board's
entire file and that any document reviewed or considered by the
Board is contained in that file marked as Exhibit R9.
I have reviewed that entire file and it does not support
petitioner's argument that his denial of March 1998 (which is
what he is contending) was based solely on the offense committed
over 33 years earlier. Other factors as pointed out by
respondent in its brief could have been considered by the Board
to support its stated reason of "very high assaultive behavior
potential." For example, the report found at P-5(f) states:
PSYCHOLOGICAL REPORT: A 3-896 psychology evaluation
describes an antisocial personality of superior
intellect with a history of alcoholism. Testing
indicates evidence of possible sexual preoccupation
and psychosexual immaturity. Stability score is 2.
This court cannot substitute its judgment for the Board's even
where as here the Board's decision is arguably contrary to the
weight of the evidence in favor of parole. It's decision is not
without any rational support in the record and thus petitioner's
claim of denial of substantive due process falls short.
Having found an ex post facto violation, petitioner is
entitled to relief. Both sides agree that a remand for a further
hearing before the Parole Board under appropriate standards is
the normal relief. Petitioner argues that where the Board
intentionally evaded a court mandate or acted in bad faith, the
court may order immediate release. Here, the Board has neither
intentionally evaded a court mandate nor acted in bad faith.
An order follows.
AND NOW, this 15th day of March, 2002, the petitioner's writ
of habeas corpus is GRANTED to the extent that the case is
REMANDED for a further hearing before the Pennsylvania Board of
Probation and Parole to be held within thirty (30) days under
the standards that existed prior to the enactment of the
amendment to the Probation and Parole Act codified at 61 P.S.