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ADAMS v. KELCHNER

November 12, 2004.

TOM LESTER ADAMS, Petitioner,
v.
SUPERINTENDENT KELCHNER, Respondent.



The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge

MEMORANDUM AND ORDER

We consider in this Memorandum the Report and Recommendation of Magistrate Judge Thomas M. Blewitt, (Doc. 4), recommending that Petitioner Tom Lester Adams' ("Petitioner") petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 be granted to the extent that the Court enter an Order directing the Pennsylvania Parole Board to re-adjudicate Petitioner's parole application. (Doc. 4 at 12.) As will be explained below, this is the second time we consider the Report and Recommendation and again conclude that the Petition should be granted to the extent recommended by the Magistrate Judge. (See Doc. 6.)

Background

  Petitioner filed his Petition on April 12, 2004, while incarcerated at the State Correctional Institution at Camp Hill, Camp Hill, Pennsylvania ("SCI-Camp Hill"). (Doc. 1.) The matter was assigned to United States Magistrate Judge Thomas M. Blewitt, who issued a Report and Recommendation, (Doc. 4), on April 20, 2004, recommending that the instant petition be granted to the extent that the Court should enter an Order directing the Pennsylvania Board of Probation and Parole (the Board) to re-adjudicate Petitioner's parole application applying the pre-1996 Pennsylvania Parole Act and rules," (Doc. 4 at 1).

  In his Report and Recommendation, the Magistrate Judge set out a thorough history of the case:*fn1

 
Petitioner states that he was arrested in May, 1996, and that he entered into a plea agreement on March 26, 1997. (Doc. 1).
On May 18, 1998, following a guilty plea made pursuant to a plea agreement, Petitioner was convicted of five counts of solicitation regarding involuntary deviate sexual intercourse, sexual assault, and corruption of minors. Petitioner was sentenced to incarceration for a period of two and one-half (2 ½) to twelve and one-half (12 ½) years and twenty-five (25) years probation. Petitioner did not file any direct appeals of his judgment of sentence with the trial court or with either the Pennsylvania Superior Court or the Pennsylvania Supreme Court. Thus, as we found in our Report and Recommendation in Petitioner's prior case (No. 3:CV-03-0188, M.D. Pa.), his judgment of sentence became final thirty (30) days after his May 18, 1998, sentence, i.e., June 17, 1998, since he did not directly appeal his sentence. See Pa. R.A.P. 903(a).
After serving over four (4) years of his sentence, on or about November 6, 2002, Petitioner had a parole hearing before the Board. The record reveals that the Board issued a decision on November 6, 2002, in which it held, in part, that:
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 of Probation and Parole, 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 interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time.
(Id. at Exhibit A).
The Board also included detailed reasons for its decision. (Id.). Thus, Petitioner was denied parole and his case was ordered to be reviewed in or after October, 2003. (Id.). Petitioner reappeared before the Board on or about November 21, 2003, and it again denied Petitioner parole.*fn2 (Id. at Exhibit B).
The Board recorded a Notice of Board Decision on November 21, 2003, in which it set a new parole hearing in or after March, 2005. The Board, in its November 21, 2003, decision stated, in part, the following reasons for denying Petitioner parole:
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 of Probation and Parole, 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 interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time.
(Id. at Exhibit B).
The Board also included detailed reasons for its decision. (Id.).
In both of the stated decisions, the Board utilized the requirements of the 1996 amended Pa. Parole Act in denying Petitioner parole. (Doc. 1, Exhibits A & B).
There is no indication that Petitioner filed a Petition for Administrative Relief with the Board, requesting the Board to reconsider its November 21, 2003, decision. Nor is there any indication that the Petitioner filed a Petition for Review with the Pennsylvania Commonwealth Court. However, the Petitioner states in the attached Grounds to his Petition that he appealed the decisions of the Board "in a timely fashion, but was denied." (Doc. 1, attached Grounds One and Two). In any event, subsequent to the Board's decisions, the Petitioner filed the instant Habeas Corpus Petition with this Court on April 12, 2004. (Doc. 1).
Petitioner avers that he filed this Petition for habeas relief with this Court, challenging the decisions of the Board as unconstitutional since the Board applied the 1996 parole amendments retroactively to his case for his 1996 arrest (1998 conviction). Thus, he claims that the Board violated the ex post facto clause. Petitioner appears to request this Court to direct the Board to conduct a new a parole hearing in which it applies the parole standards that existed before the 1996 amendments.*fn3 (Doc. 1, attached Grounds).
Petitioner primarily contends that he is entitled to habeas relief due to the Board's application of amended parole standards which were not in effect at the time he was arrested in May, 1996, and "at the time his crimes were committed" (as opposed to the time he was sentenced and convicted) and which resulted in the Board's denial of his parole, in violation of the constitutional protection against ex post facto laws. (Doc. 1, attached Grounds). In essence, Petitioner claims that his denial of parole violated the constitution, since the 1996 parole standards were applied retroactively to his 1995-1996 crimes. (Id.).
(Doc. 4 at 2-5.)

  First, the Magistrate Judge determined this case presented an exception to the exhaustion requirement both because Petitioner maintains he timely appealed the Board's decisions but was denied and because Third Circuit Precedent is at odds with the Pennsylvania Supreme Court's decisions on the ex post facto issue presented in this case. (Doc. 4 at 6.) Second, on the ex post facto issue, the Magistrate Judge agreed with Petitioner's claim that the Pennsylvania Board of Probation and Parole violated the Ex Post Facto Clause of the United States Constitution by applying amended standards to his parole application. (Doc. 1 Attachment.) The Magistrate Judge concluded that the proper resolution of this matter is for the Court to order the Pennsylvania Board of Probation and Parole to re-adjudicate Petitioner's parole application applying the pre-1996 statute and corresponding rules. See, Mickens-Thomas v. Vaughn, 321 F.3d 374, 393 (3d Cir.), cert. denied, ___ U.S. ___, 124 S. Ct. 229 (2003).; Hart v. Pennsylvania Board of Probation and Parole, 82 Fed. Appx. 276, 277(3d Cir. 2003); Hollawell v. Gillis, 65 Fed. Appx. 809, 816 (3d Cir.) (not precedential), cert. denied, ___ U.S. ___, 124 S. Ct. 229 (2003).

  Neither party filed objections within the required filing time. Therefore, finding no clear error in the Magistrate Judge's determination, we adopted his Report and Recommendation on May 18, 2004. (Doc. 6.) The Pennsylvania Board of Probation and Parole was served with copies of Petition and Report and Recommendation on May 24, 2004. (Doc. 7.)

  Respondent filed a Motion for Reconsideration on June 2, 2004, (Doc. 9), and a supporting brief on June 16, 2004, (Doc. 11). Respondent's counsel argued that reconsideration was proper because, through inadvertence, she thought the case was a civil rights case which allowed sixty days for a response. (Id.) She therefore did not immediately review the Petition and Report and Recommendation and missed the deadline for filing objections. (Id.)

  The Court requested supplemental briefing, (Doc. 14), which Respondent filed on August 25, 2004, (Doc. 15). Respondent was allowed to file objections by Order of September 29, 2004, (Doc. 17). He filed objections, (Doc. 18), and a supporting brief, (Doc. 19), on October 13, 2004.

  Respondent objects to the Magistrate Judge's Report and Recommendation on two bases: 1) "Petitioner failed to timely exhaust his available state court remedies and exhaustion is not properly excused," (Doc. 18 ¶ 1); and 2) "Petitioner has been reviewed for parole since the Pennsylvania Supreme Court rendered its decision clarifying the impact of the 1996 amendments to the Parole law, Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688, (Pa. 2002), so no ex post facto claim exists," (id. ¶ 2).

  Discussion

  A. Standard of Review

  If a party files objections to a magistrate judge's Report and Recommendation, the district court reviews de novo those portions of the Report and Recommendation to which objection has been made. 28 U.S.C. § 636(b)(1); ...


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