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LLOYD v. SHANNON

United States District Court, E.D. Pennsylvania


July 19, 2004.

JOHN ANTHONY LLOYD
v.
R. SHANNON, et al.

The opinion of the court was delivered by: DIANE WELSH, Magistrate Judge

REPORT AND RECOMMENDATION

John Anthony Lloyd ("the petitioner") has filed a petition for a writ of habeas corpus. For the reasons which follow, the petition should be denied.

On February 24, 1990, the petitioner was convicted of rape and involuntary deviate sexual intercourse.*fn1 He was sentenced to a term of incarceration of six to twenty years. Starting in 1996, he was considered for parole and was denied several times. Finally, on July 22, 2002, the Pennsylvania Board of Probation and Parole ("Parole Board") granted parole to the petitioner. Several parole conditions were placed upon the petitioner and he was arrested for violating one of them on January 27, 2003. On March 25, 2003, the Parole Board ordered the petitioner to serve 18 months of backtime as a technical parole violator.

  On June 1, 2003, the petitioner filed an application with the Parole Board wherein he sought an accelerated parole hearing. On June 26, 2003, the Parole Board informed the petitioner that it would not consider him for parole until March 25, 2004, at the earliest. The petitioner then filed a petition for review of the Parole Board's decision with the Commonwealth Court of Pennsylvania. The Commonwealth Court denied the petitioner's request for review on October 22, 2003. Thereafter, on March 25, 2004, the petitioner filed an application for parole review with the Parole Board. On April 14, 2004, the Parole Board informed the Institutional Parole Officer at the state correctional institution housing the petitioner that his parole application had to be disposed of within 6 months. To date, neither party has informed the court whether the petitioner has yet had his parole hearing.

  In his petitions, the petitioner raises several claims.*fn2 One claim is that he was denied equal protection when the Parole Board refused to consider his application for accelerated parole review. The petitioner contends that he is similarly situated to Louis Mickens-Thomas and, like Mr. Mickens-Thomas, his application should have been considered under Pennsylvania's pre-1996 parole law and regulations. To some extent, the petitioner also seems to contend that the Parole Board's action violated the ex post facto clause. The ex post facto component of his claim is based upon the Third Circuit's decision in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) ("Mickens-Thomas I"). Mr. Mickens-Thomas committed a murder in 1964 and his life sentence was commuted prior to 1996. Mickens-Thomas I, 321 F.3d at 376-77. In Mickens-Thomas I, the Third Circuit concluded that a 1996 amendment to a provision of Pennsylvania's parole law was applied to Mr. Mickens-Thomas's parole applications in violation of the ex post facto clause. See Mickens-Thomas I, 321 F.3d at 391-93.

  Another claim the petitioner raises is that he was denied due process when Pennsylvania's Commonwealth Court failed to follow the Third Circuit's decision in Mickens-Thomas I and, instead, followed the Pennsylvania Supreme Court's decision in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002). The petitioner's final claim is that he was denied due process when the Parole Board denied his request for accelerated parole review by falsely stating that it would seek certiorari in Mickens-Thomas I.

  The petitioner's first claim concerns the Parole Board's denial of his June 1, 2003 application for accelerated parole review. The petitioner contends that the Parole Board's decision violated his rights under the equal protection and the ex post facto clauses of the federal constitution. In making these claims, the petitioner ignores the fact that, on March 25, 2003, the Parole Board had determined that he was to serve 18 months of backtime for the technical parole violation he had committed while on parole. Under Pennsylvania law, the petitioner was required to serve the full 18 months of backtime before he could again be considered for parole. Brown v. Pennsylvania Board of Probation and Parole, 668 A.2d 218, 220 (Pa. Commw. 1995); Krantz v. Pennsylvania Board of Probation and Parole, 483 A.2d 1044, 1048-49 (Pa. Commw. 1984). Thus, the petitioner was plainly not entitled to parole review at the time he requested it.

  Unlike the petitioner, Mr. Mickens-Thomas was not serving backtime on the occasions when his parole applications were being considered by the Parole Board.*fn3 This fact is important because it serves to illustrate that the petitioner was not similarly situated to Mr. Mickens-Thomas at the time the Parole Board decided to deny him accelerated parole review. Unlike Mr. Mickens-Thomas, the petitioner was barred by Pennsylvania law from being considered for parole at the time he requested parole review. Thus, there is no basis to conclude that the petitioner's equal protection rights were violated by the Parole Board's June 26, 2003 decision to deny him accelerated parole review.

  In addition, the rule concerning backtime pre-existed the amended parole law that was at issue in Mickens-Thomas I; more importantly, the backtime rule also predated the petitioner's offense. Indeed, the backtime rule is not new because it dates back at least to the Commonwealth Court's 1984 decision in Krantz. Therefore, because the backtime rule pre-dates the petitioner's 1989 offense, it does not violate the petitioner's ex post facto clause rights. See Garner v. Jones, 529 U.S. 244, 249-50 (2000) (indicating that an ex post facto claim concerning a change in parole law must compare the new parole law to the parole law existing at the time of the commission of the offense).

  The petitioner's third claim also concerns the Parole Board's denial of his June 1, 2003 application for accelerated parole review. In its June 26, 2003 letter denying accelerated parole review, the Parole Board noted that the petitioner had cited Mickens-Thomas I in his application for accelerated parole review and it told him that it would take no action in his case in light of Mickens-Thomas I because it intended to seek certiorari in the United States Supreme Court. The petitioner asserts that this was a lie because the Parole Board never sought certiorari in Mickens-Thomas I. However, in Mickens-Thomas v. Vaughn, 355 F.3d 294 (3d Cir. 2004) ("Mickens-Thomas II"), the Third Circuit noted that the United States Supreme Court had denied certiorari in Mickens-Thomas I under the caption of Gillis v. Hollawell, 124 S.Ct. 229 (Oct. 6, 2003). See Mickens-Thomas II, 355 F.3d at 295. Thus, it would appear that the Parole Board did not mislead the petitioner when it told him that it would seek certiorari in Mickens-Thomas I.

  The petitioner's remaining claim concerns the order the Commonwealth Court filed when it dismissed his petition for review of the Parole Board's June 26, 2003 decision to deny him accelerated parole review. The Commonwealth Court did not hold that the backtime rule barred the petitioner from obtaining parole review. Instead, the Commonwealth Court chose to address the ex post facto clause claim the petitioner had raised in his petition for review. The Commonwealth Court found that several Pennsylvania decisions (including Winklespecht) had found a claim similar to the petitioner's to be without merit. Lloyd v. Pennsylvania Board of Probation and Parole, No. 489 M.D. 2003 (Pa. Commw. Oct. 22, 2003). In doing so, the Commonwealth Court failed to cite Mickens-Thomas I, which reached a conclusion that is contrary to the conclusions reached by Pennsylvania's courts.

  To better understand the petitioner's complaint here, it is helpful to review the litigation that has developed to challenge the provision of Pennsylvania's parole law at issue here under the ex post facto clause. In December 1996, the Pennsylvania legislature amended Pennsylvania's parole law. See Mickens-Thomas I, 321 F.3d at 377. The specific provision the Third Circuit considered in Mickens-Thomas I was 61 P.S. § 331.1, the parole statute's public policy section. Mickens-Thomas I, 321 F.3d at 377. In the Third Circuit's view, this change in the law indicated that public safety must be the first and foremost consideration the Parole Board makes in executing its mission. Id. In addition, even before § 331.1 was amended, the Parole Board had indicated that its foremost concern would be the protection of the public. See id. at 380. The Third Circuit went on to conclude that, when the Parole Board considered Mr. Mickens-Thomas for parole in 1997, 1998 and 2000, it had applied the new parole law and its emphasis on public safety to Mr. Mickens-Thomas's detriment when it had denied him parole. See id. at 390-91. Thus, the Third Circuit found that the Parole Board's denials of parole had violated the ex post facto clause. See id. at 393.

  By contrast, Pennsylvania's Supreme Court has refused to find that amended § 331.1 actually changed anything about how parole is awarded in Pennsylvania; thus, Pennsylvania's Supreme Court has found no violation of the ex post facto clause. First, in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002), a plurality of the court found that amended § 331.1 did not create a substantial risk that parole would be denied more frequently than under prior law nor that it added anything new to the parole process; thus the plurality found that amended § 331.1 did not violate the ex post facto clause. See id. at 691-92. Next, in Finegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. 2003), the court noted the prior plurality decision in Winklespecht and then a majority of the court went on to hold, as the plurality had in Winklespecht, that the 1996 parole law did not add anything new to the parole process, that it did not expose Pennsylvania inmates to longer sentences and, thus, that it did not violate the ex post facto clause.*fn4 See Finegan, 838 A.2d at 688. The state supreme court then noted the Third Circuit's contrary conclusion in Mickens-Thomas I. The state supreme court distinguished Mickens-Thomas I on the basis that Mr. Finegan's denial of parole had not been based upon public safety as had Mr. Mickens-Thomas's denial of parole. See Finegan, 838 A.2d at 689. Based upon this distinction, the state supreme court concluded that it was not bound by the decision of the Third Circuit. See Finegan, 838 A.2d at 689-90. The most recent Pennsylvania Supreme Court decision is Hall v. Pennsylvania Board of Probation and Parole, No. 40 EAP 2002, 2004 WL 1385937 (Pa. June 22, 2004). In Hall, the majority stated that its precedent was contrary to the Third Circuit's decision in Mickens-Thomas I. Hall, 2004 WL 1385937, *6. The majority went on to state that, it was not obligated to follow the decisions of the Third Circuit, even with regard to questions of federal law. Id. at *9. The majority then stated that it would follow its own precedent and disregard that of the Third Circuit. Id. The majority ended its decision by stating that it would not alter its precedent unless the United States Supreme Court obligated it to do so. Id.

  The petitioner claims that he was denied due process when Pennsylvania's Commonwealth Court failed to follow the Third Circuit's decision in Mickens-Thomas I and, instead, followed the Pennsylvania Supreme Court's plurality opinion in Winklespecht. It is apparent that the Pennsylvania Supreme Court has rejected Mickens-Thomas I and that it prefers to follow its own determination that amended 61 P.S. § 331.1 does not violates the ex post facto clause. However, neither the due process clause nor any other provision of the federal constitution compels the state courts to follow the decisions of the lower federal courts which decide constitutional questions. Further, the United States Supreme Court has never imposed such a duty on the state courts.*fn5 Indeed, two current justices of the United States Supreme Court, Chief Justice Rehnquist and Justice Thomas, have opined that the state courts have no such duty. See Lockhart v. Fretwell, 506 U.S. 364, 375-76 (1993) (Thomas, J., concurring); Steffel v. Thompson, 415 U.S. 452, 482 n. 3 (1974) (Rehnquist, J., concurring).

  The state courts, like the federal courts, are bound by the federal constitution and they have the duty to faithfully interpret the federal constitution. See Huffman v. Purchase, 420 U.S. 592, 611 (1975). In addition, the state courts are bound by the United States Supreme Court's interpretation of the federal constitution, a point which the state supreme court has acknowledged in Hall. See Hall, 2004 WL 1385937, *7. However, there is no federal constitutional provision nor any United State Supreme Court decision which requires the state courts to follow an interpretation of the federal constitution made by the lower federal courts. Thus, this court is constrained to find that the Commonwealth Court's adherence to the plurality opinion in Winklespecht instead of Mickens-Thomas I did not violate the due process right or any other constitutional right of the petitioner.*fn6 The court must also determine whether to recommend granting a certificate of appealability ("COA") with respect to the petitioner's claims. Since the court has adjudicated the petitioner's claims on their merits, a COA can issue if jurists of reason could find the court's determination of the merits of the petitioner's claims debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

  The court has found that the equal protection component of the petitioner's first claim lacks merit because he is not similarly situated to Louis Mickens-Thomas (the petitioner in Mickens-Thomas I) and that the ex post facto clause component of his first claim lacks merit because under a rule of Pennsylvania parole law which pre-dated the commission of his offense, he was not entitled to parole review when he requested it. The court is of the view that reasonable jurists would not debate these conclusions. The court has found that the petitioner's third claim is based on an incorrect recitation of the relevant facts and lacks merit for this reason. In the court's view, reasonable jurists would not debate this conclusion. Finally, the court has found that the petitioner's second claim lacks merit because there is no authority to support it. In the court's view, reasonable jurists would not debate this conclusion either.

  The court's recommendation follows. RECOMMENDATION

  AND NOW, this day of July, 2004, for the reasons contained in the preceding Report, it is hereby RECOMMENDED that the petition for a writ of habeas corpus be DENIED and the petitioner's motion for the appointment of counsel be DENIED. It is also RECOMMENDED that a certificate of appealability not be granted.

  AND NOW, this day of ____, 2004, after careful and independent consideration of the petition for a writ of habeas corpus, the response thereto and after review of the Report and Recommendation of Diane M. Welsh, United States Magistrate Judge, it is hereby ORDERED that:

1. The Report and Recommendation is APPROVED and ADOPTED;
2. The petition for a writ of habeas corpus is DENIED;
  3. The motion for the appointment of counsel (Document no. 10) is DENIED;

  4. A certificate of appealability is not granted.


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