United States District Court, E.D. Pennsylvania
July 28, 2004.
SUPERINTENDENT MEYERS, ET AL.
The opinion of the court was delivered by: CAROL WELLS, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas
Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Charles
Julius Fripp ("Petitioner") currently is incarcerated at the
State Correctional Institution at Rockview, Pennsylvania.
Petitioner seeks habeas corpus relief based on alleged
unconstitutional denial of his parole applications. The Honorable
John R. Padova referred this matter to the undersigned for a
Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For
reasons that follow, Petitioner's procedurally defaulted claims
should be denied and dismissed with prejudice and without an
I. BACKGROUND AND PROCEDURAL HISTORY*fn1
The Commonwealth presented evidence that, on August 27, 1988,
Petitioner forcibly raped his girlfriend's eight-year-old
daughter while she was asleep. See Commonwealth v. Fripp, No.
5226 Phl. 97 (Ct. Com. Pl. June 30, 1998). Following a jury
trial, on January 17, 1990, Petitioner was convicted of Rape,
Corruption of a Minor, and Simple Assault. See id. at 1-2. The
Honorable Marvin R. Halbert, on January 3, 1991, sentenced
Petitioner to seven and one-half (7½) to fifteen (15) years of imprisonment for the rape conviction; two and
one-half (2½) to five (5) years of imprisonment for the
corruption conviction and one (1) to two (2) years of
imprisonment for the assault conviction; all sentences are to run
concurrently. See id. at 1-2. After receiving credit for time
served, Petitioner's minimum release date was July 16, 1997; his
maximum release date is January 16, 2005. See Commonwealth v.
Fripp, No. 0632, Mem. Op. (Ct. Com. Pl. Phila. County June 24,
2002); Respondent's Answer, to Pet. for Writ of Habeas Corpus
("Resp.") at Exh. R. 1.
On May 13, 1997, the Pennsylvania Board of Probation and Parole
(alternatively, "the Board" or "the Parole Board") denied
Petitioner's first application for parole. See id. at Exhibit
R-2. The Board cited the following reasons for its denial: (1)
assaultive instant offense; (2) very high assaultive behavior
potential; (3) need for counseling and treatment; (4) failure to
participate in and benefit from a sex offender treatment program;
and (5) unfavorable recommendation from the Department of
Corrections ("DOC."). See id. The Board ordered Petitioner to
"participate in [a] prescriptive program plan, including sex
therapy . . . maintain a clear conduct record . . . [and] earn an
institutional recommendation for parole." Id.
On May 21, 1999, and May 14, 2001, following interviews with
Petitioner and reviews of his files, the Board denied
Petitioner's second and third applications for parole. The Board
reasoned that "the mandates to protect the safety of the public
and to assist in the fair administration of justice cannot be
achieved through [Petitioner's] release on parole." See id. at
Exhibits R-3 and R-4. The Board informed Petitioner that, at its
next review, it would consider if he had (1) successfully
completed a treatment program for sex offenders; (2) received a
favorable recommendation for parole from the DOC; (3) maintained
a clean conduct record; and (4) completed the DOC's prescriptive
program(s). See Id. Additionally, after the third review, the
Board wanted the "status and/or disposition of [Petitioner's] appeal to be available at
[the] time of [his next] review." Id.
Petitioner's fourth parole review and denial occurred on or
about May 17, 2002. See id. at R-5. Citing "fair administration
of justice" grounds, the Board ordered that Petitioner "serve
[his] unexpired maximum sentence, 01/16/2005 or be reviewed, if
recommended by the [DOC.]" Id. The Board's decision rested on
the ongoing deficiencies it had itemized in 2002, as well as the
additional requirement that a "sex offender treatment evaluation
[be made] available at [the] time of the review." Id.
Petitioner timely sought review of the fourth denial in the
Commonwealth Court of Pennsylvania, on May 21, 2003. See
Petition for Review ("Pet. for Review"); Resp., at Exh. R-8. In
his mandamus action, Petitioner averred that the Board, in its
denials of his parole applications: (1) failed to provide him "a
brief statement of its reasons for denying his second, third, and
fourth parole applications," hence precluding a valid assessment
of "whether the Board employed the proper factors in its
decision-making process;" (2) "erred as a mater of law or
arbitrarily abused its discretion so as to deny [P]etitioner his
substantive due process rights . . . [by not] providing him a
brief statement of its reasons for the denial;" (3) "was
influenced by [the] 1996 amendments to the Probation and Parole
laws, 61 P.S. § 331.1 et seq. . . . and corresponding changes in
the parole decision-making policies of the Board" because the
amended laws "and corresponding policies of the Board altered the
fundament[als] for reviewing parole applications in that, by
reason of those amendments and corresponding policies, public
safety became the first and foremost concern in the Board's
decision making process of parole applications;" (4) violated the
"Ex Post Facto clause of the United States Constitution, by
applying retroactively the amended 1996 Parole Laws and
corresponding policies in its decision-making process;" and (5)
Petitioner "was in compliance [when the Board considered his fourth application] with the
institution's prescriptive program plan, and neither . . . his
trial judge nor prosecuting attorney [n]or the victim filed a
statement or report opposing his release on parole." See Pet.
for Review, at 2-4, Exhs. R-7, R-8.
The Commonwealth Court, treating Petitioner's filing as a
Motion for Writ of Mandamus, directed the Board to file an
answer. See Fripp v. Pa. Bd. of Prob. and Parole, No. 330 M.D.
2003, Order (Pa. Commw. Ct. May 22, 2003), Exh. R-9. Before the
Commonwealth Court ruled on Petitioner's mandamus claim, the
Board, on May 23, 2003, clarified its May 17, 2002 decision:
Following an interview with you and a review of your
file, and having considered all matters required
pursuant to the parole act of 1941, as amended, 61
P.S. § 331.1 et seq., the [Board], in the exercise
of its discretion, has determined at this time that:
your best interests do not justify or require you
being paroled/reparoled; and, the interest of the
Commonwealth will be injured if you were
paroled/reparoled. Therefore, you are refused
parole/reparole at this time, the reasons for the
Board's decision include the following:
Your refusal to accept responsibility for the
offense(s) committed. The recommendation made by the
[DOC]. Your unacceptable compliance with prescribed
institutional programs. Your need to participate in
and complete additional institutional programs. Other
factors deemed pertinent in determining that you
should not be paroled: habitual offender (aggravated
assault, firearms offense, disorderly conduct);
assaultive instant offense (forcibly raped 8-yearold
girl); victim injury.
You will serve your unexpired maximum sentence,
01-16-2005, or be reviewed, if recommended by the
Id. at Exh. R-6. Factors to be considered at Petitioner's next
review remained identical to those provided in the May 2002 Board
In its response of June 23, 2003, the Board urged the court to
dismiss Petitioner's Mandamus petition, inasmuch as reasons for
his parole denial had, now, been specified. See Resp. at Exhs.
R-7, R-10. The Commonwealth Court, on July 16, 2003, relying on
Winklespecht v. Pa. Bd. of Prob. and Parole, 571 Pa. 685,
813 A.2d 688 (Pa. Commw. Ct. Dec. 31, 2002) and Reynolds v. Pa. Bd.
of Prob. and Parole, 809 A.2d 426, 2002 Pa. Commw. LEXIS 841
(Oct. 21, 2002), issued a per curiam decision rejecting the
merits of Petitioner's application and finding his claim that the
Board failed to provide reasons for denying Petitioner parole
status to be moot. See Fripp v. Pa. Bd. of Prob. and Parole,
No. 330 M.D. 2003, Order (Pa. Commw. Ct. July 16, 2003).
Petitioner did not appeal this adverse decision to the state's
Rather, on September 2, 2003, Petitioner filed the instant
federal habeas corpus Petition. He alleges, inter alia, as well
as in an amended petition filed September 19, 2003, that the
Board's second, third, and fourth parole decisions violate the
Ex Post Facto Clause of the United States
Constitution.*fn2 See Petition for writ of Habeas Corpus
("Pet.") at 9-10. Specifically, Petitioner alleges that:
1. The Board's retroactive application of the changes
in the parole law amendments was arbitrary and
2. The Board's application of the amended parole laws
used "impermissible factors;"
3. The Board's application of the amended parole law
"effectively nullifies Petitioner's pre-existing
parole eligibility, setting him aside for harsher
treatment, changing the quantum of punishment;" and
4. The Board's application of the amended parole laws
deprives Petitioner of numerous constitutional
See id. See also Petitioner's Memorandum in Support of Petition
for Writ of Habeas Corpus ("Memo"). Respondents reply that
Petitioner's unexhausted and meritless Ex Post Facto claims should be dismissed. See Resp. at 4-8.
A. EXHAUSTION & PROCEDURAL DEFAULT
A state prisoner is required to exhaust all avenues of state
review of his claims prior to filing a petition for federal
habeas review.*fn3 See 28 U.S.C. § 2254(b)(1). See also
Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer,
987 F.2d 984, 987 (3rd Cir. 1993), aff'd. 30 F.3d 1488 (3rd
Cir. 1994) (citations omitted). The total exhaustion doctrine,
rooted in our tradition of comity, gives the state the "initial
opportunity to pass upon and correct" alleged violations of a
habeas petitioner's constitutional rights. See Picard v.
Connor, 404 U.S. 270, 275 (1971) (citing Wilwording v.
Swenson, 404 U.S. 249, 250 (1971)). See also Tillet v.
Freeman, 868 F.2d 106 (3rd Cir. 1989). A claim is exhausted
if it has been "fairly presented" once to the state's trial
court, intermediate appellate court, and highest court of appeal.
28 U.S.C. § 2254(b); Evans v. Court of Common Pleas, Delaware
County, Pennsylvania, 959 F.2d 1227, 1230-31 (3rd Cir. 1992)
(citing Picard, 404 U.S. at 275) (1971)).
Petitioner never presented any of his parole/ex post facto
claims to the highest available state court, hence, his claims
are unexhausted. Generally, this court will dismiss an
unexhausted petition and allow the petitioner to return to the
state courts to cure the default. See Rose v. Lundy,
455 U.S. 509, 522 (1982); Lambert v. Blackwell, 134 F.3d 506, 509 (3d
Cir. 1997). To avoid dismissal and to overcome his non-compliance with the
total exhaustion requirement, Petitioner invokes the "futility"
doctrine. See Pet. at 4-9; Pet. Motion at . He contends that
application to the Supreme Court of Pennsylvania to argue
violations of the Ex Post Facto Clause would be futile, because
of an "absence of available state corrective process." Pet.
Motion at . Petitioner further argues that, since the state
courts "have soundly rejected [his] issues, and, therefore,
expressly have foreclosed any `[f]ruitful' response or remedy" to
Petitioner, total exhaustion should be excused. See Pet. at 4.
The crux of this latter position is that the Pennsylvania state
courts' adherence to its holdings in Reynolds and
Winklespecht,*fn4 supra, stating that 1996 changes to
the new parole laws cause no ex post facto violation, renders
useless any petition to the state court for parole relief based
on his ex post facto arguments.
Respondents concede that § 2254 carves out a futility exception
to the exhaustion requirement, but deny that Petitioner is
entitled to it. See Resp. at 6 n2. This court, however, finds
that Petitioner's return to state court would be futile for both
procedural and substantive reasons.
A return to state court is excused as futile when the
state's highest court has ruled unfavorably on a
claim involving facts and issues materially identical
to those undergirding a federal habeas petition and
there is no plausible reason to believe that a replay
will persuade the court to reverse its field, where
the state provides no means of seeking the relief
sought, or where the state courts have failed to
alleviate obstacles to state review presented by
circumstances such as the petitioner's pro se status,
poor handwriting and illiteracy.
Whitney v. Horn, 280 F.3d 240
, 250 (3d Cir. 2002) (citing
Lines v. Larkins, 208 F.3d at 153 (3rd Cir. 2000) (citations
and quotations omitted). The rationale behind the "futility
exception" is that, if state procedural rules bar the applicant from seeking further relief on
the unexhausted claims in the state courts, the exhaustion
requirement is satisfied because there is "an absence of
available State corrective process." 28 U.S.C. § 2254(b). See
Coleman, 501 U.S. at 750; Lines, 208 F.3d at 165-66; Henry v.
Horn, No. 98-CV-2187 (E.D. Pa. May 16, 2002). Thus, futility may
be found to exist when "exhaustion is not possible because the
state court would refuse on procedural grounds to hear the merits
of the claims." Id. (citing Doctor v. Walters, 96 F.3d 675
681 (3rd Cir. 1996); see e.g. Hollawell 65 Fed. Appx. at 2
(citing Hollawell v. Pa. Bd. of Prob. and Parole, No. 688 M.D.
1999 (Pa. Commw. Ct. Dec. 13, 1999)[*6]) (finding futility where
the Commonwealth Court had refused to entertain the merits of a
petition for writ of mandamus, dismissing it for lack of
jurisdiction and where identical relief was sought from the
Supreme Court of Pennsylvania via writ of mandamus.) The futility
doctrine also applies if, in state court
an appropriate remedy does not exist or its
utilization is frustrated by the state system . . .
the deference accorded the state judicial process
must give way to the primary role of the federal
courts to redress constitutional deprivations. . . .
If it appears that the prisoner's rights have become
an "empty shell" or that the state process is a
"procedural morass" offering no hope of relief, then
the federal courts may excuse the prisoner from
exhausting state remedies and may directly consider
the prisoner's constitutional claims.
Whitney, 280 F.3d at 163 (citing Hankins v. Fulcomer,
941 F.2d 246
, 249-250 (3rd Cir. 1991)).
Petitioner had an effective state remedy, both procedurally and
substantively. The Supreme Court of Pennsylvania, in 1999, well
before Petitioner's claim arose, expressly held that disappointed
parole applicants could contest unconstitutional parole decisions
by means of a mandamus action commenced in the Commonwealth
Court. See Rogers v. Pennsylvania Board of Probation and
Parole, 555 Pa. 285, 724 A.2d 319, 323 (Pa. 1999); Coady v.
Vaughn, 770 A.2d 287, 290 (Pa. 2001) (affirming availability of the writ of mandamus to rectify
unconstitutional parole determinations). In fact, Petitioner,
without interference or procedural difficulties, filed his
petition for writ of mandamus in Commonwealth Court. He could
have pursued an appeal in the Supreme Court of Pennsylvania or,
alternatively, he could have instituted a subsequent mandamus
action invoking the original jurisdiction of the state's highest
court, but failed to do so in a timely manner.
It is highly improbable that any state court will entertain
Petitioner's claim now, since his appeal period lapsed, on or
about August 15, 2003, thirty days after Commonwealth Court
denied his mandamus petition. Moreover, as will be discussed more
fully infra, Section D, the Pennsylvania court's most recent
pronouncement in Hall v. Pa. Bd. of Prob. and Parole, No. 40
EAP 2002, Slip Op., 2004 WL 1385937 (Pa.June 22, 2004), holding
that 1996 modifications to the Parole laws*fn5 in 1996 did
not create an ex post facto violation, removes even a glimmer
of hope that any different substantive result would be achieved
by a return to the state Supreme Court. Thus, since Petitioner is
now barred procedurally and substantively from procuring relief
from any state court, dismissal for the purpose of exhausting his
claims would clearly be an exercise in futility. See Whitney,
280 F.3d at 250 (citing Gray v. Netherland, 518 U.S. 152, 161
(1996); Pursell v. Horn, 187 F. Supp.2d 260 (W.D. PA., 2002)
(finding Petitioner's attempt to exhaust futile, since the
"state's highest court had already rejected identical
constitutional challenges to its proportionality review.
28 U.S.C. § 2254(b).")
This court's finding of futility, however, renders Petitioner's
claims procedurally defaulted for purposes of federal review.
See Coleman v. Thompson, 501 U.S. 722, 735n. 1 (1991);
28 U.S.C. § 2254(b)(1)(A); 42 Pa.C.S. § 9544(a)-(c). Petitioner must
meet a rigorous test before his procedurally defaulted claims will be considered on the merits.
See Pursell, 187 F. Supp.2d 260. Specifically, he must
demonstrate both "cause" for the default and "actual prejudice"
as a result of the alleged violation of federal law," or that the
court's failure to consider the claims will result in
"fundamental miscarriage of justice" to avoid dismissal. See
28 U.S.C. § 2254(b)(1)(B); Harris v. Reed, 489 U.S. 255,
260-64(1989); Coleman, 501 U.S. at 750.
The fundamental miscarriage of justice exception is limited to
"truly extraordinary cases where there is a showing of `actual
innocence' by the petitioner." See Barnhart v. Kyler, 2004 WL
1127169 (M.D. Pa. 2004). Actual innocence encompasses instances
in which newly discovered evidence makes it "more likely than
not" that a reasonable juror would find a petitioner not guilty.
See Coleman, 501 U.S. at 750; Schlup v. Delo, 513 U.S. 298,
329 (1995); see also Caswell, 953 F.2d at 857. Petitioner does
not herein challenge his conviction. Rather, he is objecting to
the Board's refusal to grant parole. Thus, this court's refusal
to consider the merits of the petition does not implicate a
miscarriage of justice that would excuse his default. See
Schlup, 513 U.S. at 298. Hence, Petitioner is confined to
demonstrating "cause and prejudice" to excuse his procedural
"Cause" sufficient to excuse procedural default requires a
showing that some objective factor, outside of counsel or
Petitioner's control, prevented compliance with state procedural
rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986);
Caswell, 953 F.2d at 862. "Actual prejudice" occurred if an
error caused Petitioner "actual and substantial disadvantage."
See U.S. v. Frady, 456 U.S. 152, 170 (1972). The burden of
proof falls on Petitioner to establish both cause for the default
and prejudice resulting therefrom. See Teague v. Lane,
489 U.S. 288, 298 (1989); Coleman, 501 U.S. at 754; Caswell, 953 F.2d
Petitioner cannot meet the "cause" prong of this test. He has
not adduced facts indicating that objective factors, external to the defense, prevented timely
appeal of the adverse Commonwealth Court mandamus determination
to the Pennsylvania Supreme Court. No governmental entity is
alleged to have misled him to believe further appeal was not
required. Inasmuch as Petitioner cannot show any legally
acceptable cause for his default, inquiry into prejudice
potentially suffered is impermissible and this petition should be
dismissed on procedural grounds.
Notwithstanding Petitioner's failure to exhaust state remedies,
federal courts can, in the interest of judicial efficiency, deny
a meritless claim. See § 2254(b)(2); Burkett v. Love,
89 F.3d 135,138 (1996) (holding that "a federal court may deny an
application on the merits notwithstanding an applicant's failure
to exhaust state remedies"). Petitioner states that, because the
1996 amendments to the Parole Act materially changed the criteria
for granting and denying parole, their application to his parole
request violated the constitutional prohibition against ex post
facto laws. Specifically, Petitioner contends that the Board's
"retroactive application of the changes in the parole law
amendments was arbitrary and capricious;" the Board impermissibly
applied the amended Parole Act to his application, "effectively
nullif[ying] [his] pre-existing parole eligibility, setting him
aside for harsher treatment, changing the quantum of punishment,"
and, thus, causing him to suffer "numerous Constitutional
violations." See Pet. at 9-10.
1. Habeas Corpus Standard of Review
Pursuant to the Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA"), a federal habeas court may overturn a state
court's resolution of the merits of a constitutional issue only
if the state court decision was "contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States."
28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor,
529 U.S. 362 (2000), discussed the analysis required by §
[Under the "contrary to" clause] a federal habeas
court may grant the writ if the state court arrives
at a conclusion opposite to that reached by this
Court on a question of law or if the state court
decides a case differently than this Court has on a
set of materially indistinguishable facts. Under the
"unreasonable application" clause, a federal habeas
court may grant the writ if the state court
identifies the correct governing legal principle from
this Court's decisions but unreasonably applies that
principle to the facts of the prisoner's case.
Id. at 1498. See also Mitchell v. Esparza, 540 U.S. 12
(2003); Yarborough v. Alvarado, ___ U.S. ___, 124 S.Ct. 2140
(2004). The Third Circuit Court, consistent with the Williams v.
Taylor interpretation, has set forth in Marino v.
Superintendent, SCI-Albion, 171 F.3d 877
(3rd Cir. 1999),
cert. denied, 528 U.S. 824 (1999), a two-tier approach to
determining § 2254(d)(1) issues:
First, the federal habeas court must determine
whether the state court decision was "contrary to"
Supreme Court precedent that governs the petitioner's
claim. Relief is appropriate only if the petitioner
shows that "Supreme Court precedent requires an
outcome contrary to that reached by the relevant
state court." O'Brien [v. Dubois], 145 F.3d ,
24-25 [(1st Cir. 1998]. In the absence of such a
showing, the federal habeas court must ask whether
the state court decision represents an "unreasonable
application" of Supreme Court precedent; that is,
whether the state court decision, evaluated
objectively and on the merits, resulted in an outcome
that cannot be reasonably justified. If so, then the
petition should be granted.
Id. at 891. The phrase "clearly established Federal law," as
the term is used in Section 2254(d)(1), is restricted "to
holdings, as opposed to the dicta of [United States Supreme
Court] decisions as of the time of the relevant state-court
decision." Williams, 529 U.S. at 365. Under the "reasonable
a federal habeas court may not grant relief simply
because that court concludes in its independent
judgment that the relevant state-court decision applied clearly established federal law
erroneously or incorrectly. Rather, that application
must also be unreasonable.
Id. The AEDPA further provides for relief if an adjudication
"resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d)(2). State factual
determinations, presumptively correct, may be rebutted only upon
presentation of clear and convincing evidence. See
28 U.S.C. § 2254(c)(1).
2. Pennsylvania's Parole statutes
Petitioner asserts that a change in parole law has caused him
to be incarcerated longer than would have been the case when he
was initially sentenced. He relies upon the Third Circuit's
decision in Mickens-Thomas v. Vaughn, 321 F.3dd 374 (3d Cir.
2003) and its progeny for support. The Third Circuit in
Mickens-Thomas held that 1996 changes to the Pennsylvania
Parole Law offended the Ex Post Facto Clause of the United
States Constitution, as applied to the petitioner in that case.
The former parole statute provided as follows:
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 that end it
is the intent of this act to create a uniform and
exclusive system for the administration of parole in
Act 1941, Aug. 6, P.L. 861, § 1. Post-1996, section 1 of the
parole Act contained the following new public policy statement:
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 order to effectuate the public policy
statement, Pennsylvania law grants the Parole Board vast
discretion to refuse or deny parole. See 61 Pa. Const. Stat.
Ann. § 331.21. The statute provides:
The Board is hereby authorized to release on parole
any convict confined in any penal institution of this
Commonwealth as to whom power to parole is herein
granted to said board . . . whenever in its opinion
the best interests of the convict justify or require
his being paroled and it does not appear that the
interests of the Commonwealth will be injured thereby
. . . Said board shall have the power during the
period for which a person shall have been sentenced
to recommit one paroled for violation of the terms
and conditions of his parole and from time to time to
reparole and recommit in the same manner and with the
same procedure as in the case of an original parole
or recommitment . . .
61 Pa. Const. Stat. Ann. § 331.21. The law also authorizes the
Board, in its discretion, to consider various factors in granting
or denying parole. See 61 Pa. Const. Stat. Ann. § 331.19.
Pennsylvania courts have affirmed the Board's complete discretion
to parole a convict, and consider relevant factors, including a
convict's failure to complete a sex offender program. See, e.g.,
Rogers v. Board of Prob. and Parole, 555 Pa. 285, 724 A.2d 319
(1999); Weaver v. Board of Prob. and Parole, 514 A.2d 967, 971
(Pa. Commw. 1986); Reider v. Board of Prob. and Parole,
514 A.2d 967 (Pa. Commw. 1986).
Conflict has arisen between how the state and federal courts
view the change in policy statement's impact on the Parole
Board's implementation of its overall directives. In
Mickens-Thomas v. Vaughn, 321 F.3d 374, the Third Circuit
held that the 1996 changes in language increased the Board's
emphasis on public safety, thus, amounting to a substantive ex
post facto change to parole criteria. The court articulated the resultant
constitutional problem as follows:
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. Unlike the petitioner in
Mickens-Thomas, however, Petitioner in this instance was denied
parole after December 31, 2002, when Winklespecht v. Pa. Board
of Probation and Parole, 571 Pa. 685
, 813 A.2d 688
was decided by the state's highest court. The Winklespecht
court pronounced that the recent amendments to the parole act (61
P.S. § 331.1) did not alter Pennsylvania policy regarding
appropriate considerations for parole release eligibility. See
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
Winklespecht at 691-92. The Third Circuit did not follow
Winklespecht in Thomas, because the Winklespecht case could
not have retrospectively clarified the manner in which the new
parole language had already been applied in cases determined
before the Pennsylvania Supreme Court, via its Winklespecht
decision informed parole officials that no change in
interpretation was intended. Thus, Winklespecht, decided
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
Mickens-Thomas, 321 F.3d at 391. An appropriate extension of
the Mickens-Thomas holding would, therefore, be that, since
Petitioner in the case sub judice is contesting a parole
determination that occurred on May 17, 2002, five months after
Winklespecht clarified for the Board how it should interpret
the language change, there was no longer any danger that the
Board inappropriately interpreted the post 1996 policy statement
to require application of a harsher standard than that applied
pre-1996. Hence, it is unclear that the Third Circuit would per
se find an ex post facto violation as applied to this case.
On the other hand, this court can conclusively state that the
Pennsylvania Supreme Court would find no merit to Petitioner's
ex post facto assertions in applying its holding in
Winklespecht. On June 22, 2004, the state's highest court,
reiterated its stance (notably over the strong dissent of Chief
Justice Cappy) that the legislative change in language after 1996
occasioned no change in application of parole guidelines. See
Hall, supra at 7. The state high court, having reviewed Mickens-Thomas and its progeny,*fn6 expressly refused to
give deference to the Third Circuit, holding instead that:
[w]ithin our federal system of governance, there is
only one judicial body vested with the authority to
overrule a decision that this Court reaches on a
matter of federal law: the United States Supreme
Court. Absent a contrary ruling from that tribunal,
it is the law of this Commonwealth that application
of the 1996 amendments to the Parole Act to persons
sentenced prior to their adoption does not violate
the ex post facto clause of the United States
Hall 2004 WL 1385937 at *9. Thus, the state court was not bound
by the Third Circuit's decision in Mickens-Thomas.
3. Application of controlling law to Petitioner's case
The Ex Post Facto Clause of the United States Constitution
"forbids the enactment of any law which imposes a punishment for
an act `which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.'" Coady
v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001) (quoting Weaver v.
Graham, 450 U.S. 24, 28 (1981). Although two United States
Supreme Court decisions relied upon by the Third Circuit Court in
Mickens-Thomas establish that ex post facto restrictions
apply to parole matters, no United States Supreme Court case, to
date, has examined the precise issue at hand and determined that
a similar state court interpretation of the law is incorrect.
See Garner v. Jones, 529 U.S. 244 (2000) and California
Department of Corrections v. Morales, 514 U.S. 499 (1995) (both
involving the issue of whether changes in the frequency of parole
review violated the ex post facto prohibition). Therefore, this
court cannot find that the state court's position in
Winklespecht and Hall contravenes Supreme Court precedent.
Hence, this federal court lacks the authority to overrule the
Pennsylvania Supreme Court's interpretation. Factually, Petitioner is not entitled to the relief he seeks,
even if this court were to follow the holding in
Mickens-Thomas. Except for individuals whose parole decisions
were made after adoption of the 1996 changes and before
Winklespecht clarified the fact that both policies would be
administered identically, no deviation in the level of scrutiny
given parole applicants can be presumed. Petitioner does not fall
within this narrow class of persons who were denied parole. Thus
he suffered no ex post facto violation.
In Mickens-Thomas, the petitioner, but for the perceived
change in emphasis on public safety would have been released.
Thomas' life sentence had been commuted, he had completed all
prescribed plans, and Thomas had received favorable institutional
recommendations. Petitioner herein, by contrast, would not have
qualified for parole under previous or new standards. He
consistently failed to complete sex offender and other prescribed
institutional programs, to earn a favorable DOC recommendation,
or to maintain a clean conduct record. A full review of
Petitioner's parole file confirms that he was not denied due
process. He was advised, at the time of each refusal, exactly
what the Board would consider relevant at the next parole review.
The state court's application of law to Petitioner's situation,
therefore, was not unreasonable.
In this case, the Parole Board's decisions, responsive to
Petitioner's assaultive misconduct, supervision failures, need to
complete sex offender program, and adverse recommendations from
the DOC, clearly comply with Pennsylvania's statutory
requirements. Accordingly, Petitioner has not shown that, but for
the 1996 change in the wording of the parole statute, he would
have been entitled to release. Therefore, the Board's adverse
decisions do not indicate reliance upon ex post facto or any
other unconstitutional factors. This court finds that the Board's
exercise of discretion was neither arbitrary nor capricious, and
did not violate substantive due process. Therefore, Petitioner's contentions lack merit and the state court's
determination, in Petitioner's situation, was neither contrary to
nor an unreasonable application of federal law. See Burkett,
89 F.3d 135, 140. See also, Lindeman v. Bd. of Prob. and Parole, No.
97-4824, 1999 U.S. Dist. LEXIS 19416 at *8-9 (Dec. 17, 1999)
(holding that a state may not deny parole on unconstitutionally
impermissible grounds, such as race or in retaliation for
exercising constitutional rights.)
For reasons stated above, I would dismiss Petitioner's
procedurally defaulted habeas corpus petition. Alternatively,
inasmuch as Petitioner has never fully met the Board's
requirements for early release, he was not entitled to relief
under either the pre-1996 or present Parole statute. Petitioner
failed to satisfy habeas review requirements or to make a showing
of denial of a constitutional right. Therefore, a certificate of
appealability should not be issued.
Accordingly, I make the following:
AND NOW, this 28th day of July 2004, for the reasons
contained in the preceding report, it is hereby RECOMMENDED that
Petitioner's procedurally defaulted Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED
without an evidentiary hearing. Petitioner has not met the
procedural requirements to have his petition reviewed; therefore,
he has not shown a denial of a constitutional right.
Consequently, a certificate of appealability should not be
issued. Petitioner, presumably, would further rely on a June 22, 2004
decision rendered by the Pennsylvania Supreme Court in Hall v.
Pa. Bd. of Prob. and Parole, No. 40 EAP 2002, 2004 Pa. LEXIS
1327, Slip Op. (Pa. 2004). In Hall, the Supreme Court of
Pennsylvania squarely addressed the issue of whether the
application of the newly-amended Parole Act to an inmate
sentenced prior to the promulgation of those amendments violated
the Ex Post Facto Clause of the U.S. Constitution. See id. at
*6. As in the case sub judice, in Hall, the Parole Board had
rejected the petitioner's application for parole, because
"mandates to protect the safety of the public and to assist in
the fair administration of justice cannot be achieved through
your release on parole." Id. at *3. After repeated parole
denials, Hall filed a mandamus action in the Commonwealth
Court; he contended that the Board's application of the 1996
amendments to the Parole Act violated the prohibition against ex
post facto laws. See id. at 4. While Hall's mandamus action
before the Commonwealth Court was pending, the Board, as in the
instant case, modified its decision to deny parole, substituting
as its grounds the "public safety" language utilized in this
case. See id.*fn7
Following the Commonwealth Court's
denial of mandamus, Hall filed an appeal to the Supreme Court.
The question before the Pennsylvania Supreme Court in Hall
was whether the Third Circuit's decision in Mickens-Thomas,
supra, overruling Winklespecht, a "fractured" Commonwealth
Court opinion, ("three Justices agreed that there was no ex post
facto violation") Hall at *6-7, and its decision in Finnegan
v. Pa. Bd. of Prob. and Parole, 576 Pa. 59, 838 A.2d 684 (
Pa. 2003), in which "a clear majority" of the state's highest court
upheld the constitutionality of application of the 1996 amendment
to the Parole Act to persons incarcerated prior to the effective
date of those amendments. Id. at *7, were binding on the
Pennsylvania Supreme Court. In Hall, Justice Newman (Justice
Baer concurring), decided that the Third Circuit's decision in
Mickens-Thomas was not binding and, therefore, affirmed the
Commonwealth Court's dismissal of Hall's application, finding no
ex post facto violation. See Hall at *19.
Following a careful review of Petitioner's claims, the
procedural history in this case, the decisions of the Parole
Board, and the relevant state and federal case law, this court
concludes that Petitioner has not properly exhausted his state
court remedies. Hence, this petition should be dismissed based
upon broad principles of separation of powers and stare
decisis, rather than on the merits. The Supreme Court of
Pennsylvania was and remains available to Petitioner as a viable
means to seek redress of his grievance. Notwithstanding the
Commonwealth Court's reliance upon Winklespecht, supra, and the
Pennsylvania Supreme Court's decision in Hall, it is not a
foregone conclusion that the Supreme Court would have refused
Petitioner the relief he seeks. [cite to the footnote in one of
the state cases that indicates a flicker of hope] In the absence
of other reasons that may trigger exceptions to the exhaustion
rule, including abnormal delay, the Commonwealth's highest court
deserves the initial opportunity to review and adjudicate
Moreover, Petitioner's presumptive reliance on Hollawell v.
Gillis to excuse exhaustion is misplaced. See Pet. Motion to Expedite at 1. In Hollawell,
rejection of the petition for mandamus in Commonwealth Court,
see Hollawell, 65 Fed. Appx. 809, *810, was timely appealed to
the state Supreme Court, which also refused relief. Id.
Following another denial by the Board, Hollawell filed a second
writ of mandamus in Commonwealth Court raising his Ex Post
Facto arguments. After this appeal was dismissed, id. at *811,
Hollawell preserved his issues in a writ of mandamus in the
Pennsylvania Supreme Court. Id. The district court adopted,
sub silentio, a magistrate judge's finding that Hollawell had
exhausted his state court remedies before seeking federal habeas
relief, but denied him relief on the merits. Id. at *811-*812.
The Third Circuit vacated the district court's decision and
remanded the case to the district court to order the Board to
re-adjudicate Hollawell's parole application applying the
pre-1996 statute and corresponding rules. Id. at *816. Unlike
Hollawell, Petitioner herein has never sought redress in the
state's highest court and, in the interest of comity, this court
should refrain from considering Petitioner's habeas corpus
petition, until he has done so.
Petitioner relies upon Hollawell v. Gillis, 65 Fed. Appx.
809, 816, 2003 WL 19919371 (3d Cir. April 23, 2003), cert.
denied, ___ S.Ct. ___, 2003 WL21692664 (Oct. 6, 2003) and
Mickens-Thomas, to show that Winkelspect was wrongly decided
and, therefore, to urge his immediate release. The Third Circuit,
thus, did not suggest that the state court's stance in
Winklespecht automatically warranted relief from addressing the
state's high court on grounds of futility.*fn8 Nor are the
facts that were presented in Winklespecht identical to those
presented herein. State what is distinct. Petitioner failed to
petition the Pennsylvania Supreme Court, directly or
collaterally. It is not clear that his petition would not have
been fairly considered on the merits in state court. During the
time period when Petitioner should have filed his appeal to the
state Supreme Court, July-August 2003, the Third Circuit Court
had issued its seminal ex post facto decision (favorable to
Petitioner), Mickens-Thomas, 321 F.3d 374 (3d Cir. 2003), and
the Pennsylvania Supreme Court had not yet been afforded the
opportunity to respond. If the state adopted the Third Circuit's
rationale, Petitioner's appeal would not have been
futile.*fn9 Accordingly, this court will not excuse
Petitioner's default on futility grounds and recommends dismissal
of his Petition.
This court finds that the Board's stated reasons for denying
him parole were sound and belie his claims of Ex Post Facto violations. In Mickens-Thomas, the
petitioner was serving a life sentence for the 1964 rape and
murder of a twelve-year-old girl. Mickens-Thomas, 321 F.3d at
376. Following Governor Casey's commutations of Thomas's life
sentence, rendering him eligible for parole, Thomas applied for
parole on three occasions between 1996 and 2000, but was denied.
Id. at 380-83. Unlike this case, the Board denied several
applications for parole despite the fact that Thomas had received
release recommendations from the DOC staff, successful
participation in counseling and therapy, and favorable
psychiatric evaluations. Id. at 381-82. While the Board used
similar language as in this case to deny Thomas's application
("assaultive instant offense," "very high assaultive behavior
potential," and the need "to protect the safety of the public and
to assist in the far administration of justice") the similarities
end there. In this case, the Board's reasons to deny Petitioner's
applications for parole were consistently: Petitioner's failure
to complete sex offender treatment program, failure to obtain
favorable recommendation from the DOC, failure to maintain a
clear conduct record, failure to complete the DOC's prescriptive
program(s), and his status as a habitual offender.
Mickens-Thomas instructs that an unfavorable DOC recommendation
is a significant and appropriate factor under pre-1996
guidelines. See Mickens-Thomas, 321 F.3d at 379 n. 8.