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HOLTON v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

United States District Court, E.D. Pennsylvania


May 26, 2004.

KENNETH B. HOLTON
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, et al

The opinion of the court was delivered by: JACOB HART, Magistrate Judge

REPORT AND RECOMMENDATION

This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, by an individual currently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.

FACTS AND PROCEDURAL HISTORY:

  Although his petition is somewhat difficult to understand,*fn1 Holton is complaining about numerous denials of parole. Relying on the Third Circuit's decision in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), Holton argues that the Parole Board utilized guidelines adopted in 1996 to evaluate his eligibility for parole. Since the 1996-guidelines were not those in place at the time he committed his crimes and was convicted, Holton contends that use of the 1996 guidelines violates the Ex Post Facto Clause.

  In 1996, section 1 of the Parole Act was amended and a new public policy statement was issued:

In providing these benefits [relating to parole] 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.

  In Mickens-Thomas, the Third Circuit held that retroactive application of the 1996 amendments to the Parole Act's statement of public policy violated the Ex Post Facto Clause. The amendments to which Mickens-Thomas took exception dealt with the emphasis placed on public safety concerns in the parole process. The Third Circuit agreed that the policy statement, as previously quoted, resulted in a substantive change to the parole criteria. As described by the Court:

Pre-1996, release upon eligibility for parole was presumed, and any decision to deny parole based on public safety considerations had to be supported by specific reasons, which outweighed those factors favoring release. . . . [P]rior to 1996, the Board's concern for potential risks to public safety could not be the sole or dominant basis for parole denial under the existing Guidelines. Considerations of public safety were already incorporated into its Guidelines analysis; the board had to point to "unique" factors as a basis for its rejection of the Guidelines. Moreover, the Board had to weigh 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 for granting or rejecting parole. Policy declarations in and after 1996 demonstrate that Board stance shifted and that, indeed, post-1996 considerations of public safety became the dominant concern of the Board.
Mickens-Thomas, at 386. Thus, application of the 1996 guidelines in considering Mickens-Thomas's parole resulted in a violation of the Ex Post Facto Clause. Holton makes an identical contention. Yet, their cases are vastly different.*fn2 Most notably, the Parole Board considered Mickens-Thomas's parole prior to December 31, 2002, when the Pennsylvania Supreme Court decided Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002). There, the Court held that the amendments to 61 P.S. § 331.1 did not change Pennsylvania policy regarding the criteria considered for parole eligibility. Winklespecht, at 692.

 

The 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. . . . Although the language concerning "protect[ing] the safety of the public" and "assist[ing] in the fair administration of justice" was added to § 331.1 in 1996, these concepts are nothing new to the parole process and have always been underlying concerns. 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 691-92.

  In Mickens-Thomas, the Third Circuit acknowledged the decision in Winklespecht, but explained that the decision in Winklespecht came after Mickens-Thomas's parole consideration. Thus, subsequent to the Winklespecht decision, the Parole Board had the benefit of the Supreme Court's analysis of the 1996 amendments to the Parole Act and knew that, in the state supreme court's opinion, no change had been made to the underlying parole policies.

  This decision [Winklespecht]. 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 this case. Not 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.

 Mickens-Thomas, at 391.

  Here, Holton was last reviewed for parole on October 2, 2003, well after the Parole Board had the benefit of the Winklespecht decision. Thus, the Parole Board was aware that it should not "demonstrate a marked added weight on public safety concerns." Mickens-Thomas, at 391. See Davis v. Pennsylvania Board of Probation and Parole, No. 03-3997 (E.D. Pa., Mar. 11, 2004)(Dubois, J.)

  Moreover, review of the Parole Board's October 2, 2003 decision reveals that the denial of parole was based, not only on the nature of Holton's original offense, which was the driving force behind the denial of parole for Mickens-Thomas, but also on Holton's misconduct in the prison. Unlike Mickens-Thomas, who had participated in the sex offenders' treatment program and obtained the recommendation of the entire institutional staff, when Holton was denied parole, he was required to participate in such programs, and was also required to maintain a clear conduct record because he had not done so in the past. In short, there is no indication that the Parole Board placed unnecessary weight on the issue of public safety. Thus, we find no violation of the Ex Post Facto Clause in Holton's most recent consideration for parole.

  To the extent Holton complains about the denial of his parole in September, 2002, we note that the same considerations formed the basis for the Board's decision at that time. Although the Board did not have the benefit of the Winklespecht decision, it does not appear that any one consideration proved dispositive in the Board's decision, and the combination of concerns regarding Holton's behavior certainly outweighed his interest in parole.*fn3

  In addition, the proper remedy, had the Board improperly considered Holton's parole at that time, would be to order a new parole hearing, with proper weight given to the public safety. See Mickens-Thomas, at 393. Holton has already been considered for parole since the September 2002 decision. At that time, as previously explained, the Parole Board had the benefit of the Winklespecht decision.

  Therefore, I make the following:

RECOMMENDATION
  IT IS RESPECTFULLY RECOMMENDED that the petition for writ of habeas corpus be denied. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.

  ORDER

  AND NOW, this day of 2004, upon careful and independent consideration of the petition for writ of habeas corpus, and after review of the Report and Recommendation of United States Magistrate Judge Jacob P. Hart, IT IS ORDERED that: 1. The Report and Recommendation is APPROVED and ADOPTED.

  2. The petition for a writ of habeas corpus is DENIED.

  3. There is no basis for the issuance of a certificate of appealability.


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