The opinion of the court was delivered by: MALACHY MANNION, Magistrate Judge
The petitioner, an inmate incarcerated at the Pennsylvania
State Correctional Institution at Rockview ("SCI-Rockview"),
Bellefonte, Pennsylvania, filed this pro se petition for a writ
of habeas corpus on May 20, 2003, pursuant to 28 U.S.C. § 2254.
(Doc. No. 1). The petitioner alleges that the Pennsylvania Board
of Probation and Parole ("Parole Board") changed its policies and
procedures in 1996 in such a way as to apply unconstitutionally
stringent standards for granting parole. He claims that these
changes violate the ex post facto clause of the United States
The petitioner ("Shaffer") applied to proceed in forma
pauperis, which was granted, and a show cause order was issued
on June 5, 2003. (Doc. Nos. 3, 7). The respondent filed a motion
to stay the proceedings pending review of the judgments in
Hollawell v. Gillis, 2003 WL 1919371 (3d Cir. Pa.) and
Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2004). That
motion was granted by order dated September 4, 2003. (Doc. Nos.
11, 15). The stay was lifted and the matter reopened on May 11, 2004. (Doc. Nos. 23,
26). A response to the petition and supporting documentation were
filed on June 4, 2004. (Doc. Nos. 29, 30, 31). The petitioner
filed a reply on June 17, 2004. (Doc. No. 34). Further, on July
28, 2004, the petitioner informed the court that on July 19,
2004, he was again denied parole. (Doc. No. 38). The petition
will now be given preliminary consideration pursuant to Rule 4 of
the Rules Governing Section 2254 cases, 28 U.S.C. foll. § 2254.
In 1990 the petitioner was convicted on two charges of rape,
and sentenced to 10 to 20 years incarceration. His minimum
sentence was served as of September 13, 2000, and his maximum
sentence is due to expire on September 13, 2010. (Doc. No. 31,
Declaration of Benjamin A. Martinez, Chairman, Pennsylvania Board
of Probation and Parole ("Martinez Decl."), ¶ 23). The Parole
Board interviewed the petitioner for parole consideration on
three occasions: June 2000, June 2003 and June 2004. Before each
interview the petitioner was advised by Department of Corrections
staff who evaluated him that they were recommending that he not
be granted parole due to, among other things, his refusal to
participate in a sex offender program. (Martinez Decl. ¶ 26).
The petitioner maintains that the Parole Board violated the ex
post facto clause in his case because: . . . [P]etitioner has a constitutional expectation
as well as a constitutional right and guarantee that
[h]is parole determinations would be evaluated and
rendered under the laws, custom, standard and
practice in effect when [h]e was convicted . . .
(Doc. No. 2, Memorandum in Support of Petition for Writ of Habeas
Corpus, p. 2). Citing Mickens-Thomas v. Vaughn, 321 F.3d 374
(3d Cir.), cert. denied sub. nom. Gillis v. Hollawell,
___ U.S. ___, 124 S. Ct. 229 (2003), the petitioner argues that the
effects of the unconstitutional application of the 1996
amendments to the parole guidelines, in his particular case, has
mandated an increase in his punishment which violates the ex
post facto clause. Specifically, the petitioner claims that he
is being denied parole solely on the basis of his refusal to
participate in a sex offender program. He maintains that because
participation in the sex offender program is "a hardship" and
"Inmates have and continue to be in after 5-9 years with no
completion because no completion exists in this program,"
required participation in the program, to qualify for parole,
constitutes an increase in his punishment. (Doc. No. 34, p.
3).*fn1 The respondents reply that the petition should be denied: (1)
Because no violation of the ex post facto clause occurred, and
(2) Because the Parole Board acted entirely within its discretion
in denying parole on the basis of the petitioner's refusal to
participate in a sex offender program.
Article I, Section 9, Clause 3 of the United States
Constitution prevents Congress from passing ex post facto laws.
In order to constitute a violation of the ex post facto clause
the new law must be one that punishes as a crime an act
previously committed which was innocent when done; or makes more
burdensome the punishment for a crime after its commission, or
which deprives one charged with a crime of any defense available
according to law at the time when the act was committed. Dobbert
v. Florida, 432 U.S. 282, 292 (1977). Therefore, to offend the
ex post facto clause in this case, the Commission parole
guidelines must somehow increase Shaffer's punishment, either
actually or potentially. See Coady v. Vaughn, 251 F.3d 480
(3d Cir. 2001).
The petitioner has not shown a violation of the ex post facto
clause, by virtue of the application of the Parole Board
procedures, in his case. The application of the parole guidelines
in Shaffer's case has not increased his punishment, either
actually or potentially. Shaffer was sentenced to a maximum term
of 20 years. His maximum term will not expire until September 13, 2010. His term of incarceration has not been increased by any
action of the Parole Board.
The petitioner's reliance on Mickens-Thomas is misplaced. In
that case an inmate whose sentence had been commuted by the
Governor of Pennsylvania from a life sentence without parole, to
one with the possibility of parole, was nevertheless denied
parole repeatedly by the Parole Board. Under the particular facts
of that case the Third Circuit Court of Appeals held that the
negative impact of changes in the Parole Board's application of
its amendments to parole laws did violate the ex post facto
clause in Mickens-Thomas case because the Parole Board was
applying a much harsher standard in denying parole than would
have existed at the time of the inmate's conviction.
Mickens-Thomas, 321 F.3d at 392.
Unlike the inmate in Mickens-Thomas, Shaffer has been denied
parole on three occasions, not because a more stringent standard
in evaluating parole has been applied in his case, but because of
his repeated refusal to participate in a rehabilitative prison
There is no merit to the petitioner's claim that his punishment
has been unlawfully increased by virtue of the Parole Board's
decision to decline to grant parole on the basis of the
petitioner's refusal to participate in a sex offender program.
The most recent decision denying parole, dated July 19, 2004, in
pertinent part, states:
. . . The Board of Probation and Parole, in its
discretion, has determined at this time that: your best interests do
not justify or require you being paroled . . . [A]nd
the interests of the Commonwealth will be injured if
you were paroled . . . [T]herefore, you are refused
parole . . . at this time. The reasons for the
Board's decision include the following:
The recommendation made by the Department of
Your need to participate in and complete additional
Your failure to participate in a DOC program of
counseling or therapy designed for incarcerated sex
offenders as required by 42 Pa. C.S.A. § 9718.1 . . .
Whether you have successfully completed a treatment
program for: substance abuse.
Whether you have received a favorable
recommendation for parole from the Department of
Whether you have maintained a clear conduct record
and completed the Department of Corrections'
(Doc. No. 38, Attachment).
In McKune v. Lile, 536 U.S. 24, 38 (2002), the United States
Supreme Court held that required participation in a sex offender
program does not constitute an extension of a term of
incarceration. This is because a prison sex offender
rehabilitation program, which is acknowledged to bear a rational
relation to legitimate penological objectives, does not
constitute atypical or significant hardship to an inmate in
comparison to the ordinary incidents of prison life. Furthermore,
the petitioner's refusal to participate in the program does not automatically deprive him of parole; ...