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
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
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
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 ...