United States District Court, M.D. Pennsylvania
June 3, 2005.
ROBERT T. SMITH, Petitioner,
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District
On July 26, 2004, Robert T. Smith, an inmate confined at the
Huntingdon State Correctional Institution ("SCI-Huntingdon"),
Huntingdon, Pennsylvania, filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is the
Pennsylvania Board of Probation and Parole ("Board").*fn1
Smith challenges the Board's April 18, 2003 denial of parole on
two grounds: (1) he claims the Board impermissibly applied the
1996 amended policies and guidelines of the Parole Act that were
not in effect in 1988 at the time of his conviction; and (2) the
Board inappropriately considered unspecified "other factors" when denying him parole.
Pursuant to this Court's Show Cause Order issued on August 2,
2004, Respondent filed a response to the petition with a
supporting brief on September 8, 2004. (Dkt. Entries 5, 9-11.)
Smith has not filed a traverse. The petition is ripe for
consideration, and, for the reasons that follow, will be denied.
Smith is currently serving a fifteen (15) to thirty (30) year
sentence imposed by the Philadelphia Court of Common Pleas
following Smith's conviction for aggravated assault and third
degree murder.*fn2 (Dkt. Entry 11, Ex. A, Declaration of
Benjamin A. Martinez ("Martinez Decl."), ¶ 25; Ex. B, Sentence
Status Summary.) Smith's minimum sentence expired on July 20,
2003, and his maximum sentence date is July 20, 2018. (Id.)
In addition to his current convictions, Smith's criminal
history extends back to 1979, and is marked with prior arrests
and/or convictions in New Jersey, New York, Florida and
Pennsylvania. The following authorities have lodged detainers
against Smith: (1) Delaware County (1988) criminal conspiracy
and altering ID-Weapon; (2) Bureau of Immigrations and Customs
Enforcement Smith, a Jamaican, may be subject to removal
proceedings; and (3) the US Marshals a Racketeer Influenced and
Corrupt Organizations Act conviction, for which Smith was sentenced to life imprisonment without the possibility
of parole. (Martinez Decl. at ¶¶ 27-28.)
Smith challenges the Board's April 18, 2003 adverse decision on
its first review on his current sentence. (Dkt. Entry 1.) In its
decision the Board noted that it had considered "all matters
required pursuant to the parole act of 1941, as amended,
61 P.S. § 331.1 et seq." (Dkt. Entry 11, Exhibit C, Notice of Board
Decision, dated 04/18/03.) It determined that Smith's "best
interests do not justify or require [him] being
paroled/reparoled; and, the interests of the Commonwealth will be
injured if [he was] paroled/reparoled." (Id.) The Board then
listed the following individual reasons supporting its decision:
Smith's "refusal to accept responsibility for the offense(s)
committed; the recommendation of the prosecuting attorney; and
his interview with the Hearing Examiner and Board member."
(Id.) The Board also noted that it considered "other factors
deemed pertinent in determining that [Smith] should not be
paroled: [Smith's] refusal to discuss [his] convictions at [his]
parole interview indicate [he is] not a suitable candidate for
parole." (Id.) Although directing that he serve his unexpired
maximum sentence, the Board indicated that it "will review Smith
for parole again if he files an application for parole."
(Martinez Decl. at ¶ 29.)
Smith admits that he did not seek review of the Board's April
2003 decision in Pennsylvania state courts. He proceeded directly
to federal court in filing the instant petition, arguing that it
would be futile for him to pursue state court remedies. (See
Dkt. Entry 1, Subject Matter Jurisdiction.) Without much elaboration, Smith claims the
Board's application of the 1996 amendment of § 331.1 to him "is
clearly" a violation of the Ex Post Facto Clause as similarly
found in Mickens-Thomas, 321 F.3d 374 (3d Cir. 2003). He also
asserts a Due Process violation as a result of the Board failing
to explain its reasoning for deviating from its standard
practices when it considered "other factors" in denying parole.
Smith asks that the Board be compelled to "re-evalut[e] his case"
or that he be released on parole. (Id., Conclusion.)
A. Exhaustion of State Court Remedies
As a threshold matter, a habeas petitioner must either show
that the federal constitutional claims asserted in the federal
habeas petition have been "fairly presented" to the state courts,
or that there is an absence of available state court corrective
process, or that circumstances exist rendering the available
state court process ineffective to protect the petitioner's
rights. See 28 U.S.C. § 2254(b).*fn3 Smith argues that
state court remedies are ineffective because the state courts would find that they lack
jurisdiction to consider his claims.
Since the filing of the Petition and the Response there have
been important federal and state case law developments in the
area of when, and if, a Pennsylvania state prisoner must seek
state court review of a denial of parole. Specifically, in
January of 2005, the Third Circuit Court of Appeals in Defoy v.
McCullough, 393 F3d 439, 445 (3d Cir. 2005), held that a state
prisoner challenging the denial of parole on constitutional
grounds, other than for a violation of the ex post facto clause,
was not required to exhaust state court remedies before pursuing
federal habeas review. Almost exactly one month later, the
Pennsylvania Supreme Court decided Cimaszewski v. Bd. of Prob. &
Parole, ___ Pa. ___, 868 A.2d 416, 427 (2005), which expressly
overruled Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59,
838 A.2d 684 (2003), to the extent that the Pennsylvania Court now
recognizes that an ex post facto claim may arise from the
application of the 1996 amendments to an applicant convicted
prior to the enactment of the amendments who can show that they
"create? a significant risk of prolonging his incarceration."
These recent case developments support the Respondent's
contention that exhaustion should not be excused. However, as
Smith filed his petition several months prior to Defoy and Cimaszewski, and given the "considerable
jurisprudential confusion" at the time surrounding this issue, it
is unreasonable to expect that he could have predicted the
Pennsylvania Supreme Court's decision. Defoy v. McCullough,
393 F.3d 439, 446 (3d Cir. 2005) (Weis, J., concurring). Nonetheless,
the question of exhaustion need not be resolved as the claims
presented by Smith are clearly without merit.*fn4 See
28 U.S.C. § 2254(b)(2) (a federal court can deny a habeas petition
"on the merits, notwithstanding the failure of the applicant to
exhaust the remedies available in the courts of the State").
B. The Merits of Smith's Ex Post Facto Claim
Smith challenges the denial of parole on the ground that the
Board violated the Ex Post Facto Clause of the United States
Constitution by applying the 1996 amendment to
61 Pa.Stat. § 331.1, the statute governing parole standards. "The Ex Post Facto
clause of the United States Constitution applies to a statutory
or policy change that `alters the definition of criminal conduct
or increases the penalty by which a crime is punishable.'"
Mickens-Thomas v. Vaughn, 321 F.3d 374, 383 (3d Cir. 2003)
("Mickens-Thomas I"), quoting, California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995). Ex post
facto restrictions apply to parole matters. See Garner v.
Jones, 529 U.S. 244, 250-255 (2000).
In 1996, the Pennsylvania legislature amended the section of
its parole law setting forth the public policy statement of the
Commonwealth concerning parole. Specifically, the 1996
legislation decreed that "the board shall first and foremost seek
to protect the safety of the public." 61 P.S. § 331.1 (Purdon's
1999).*fn5 Before then, section 331.1 made no mention of
pubic safety, and in fact declared the public policy of the
Commonwealth to be that parole would be a period of
rehabilitation of an inmate for his restoration to
society.*fn6 In Mickens-Thomas I, our Court of Appeals assessed the impact
of the amended statute as construed by the Board and applied in
that case. The court explained that the essential inquiry was
"whether, in practice, the new language has altered the
fundament for reviewing parole applications." Id. at 384
(emphasis added). In finding an Ex Post Facto violation in
Mickens-Thomas I, the Third Circuit observed that there was
"significant evidence that [the Board] acted upon policies that
were established after [the petitioner]'s crime and conviction."
Id. at 393. The Third Circuit explained:
[A] parole decision that fails to address any of the
criteria mandated by Board policy, such as
institutional recommendations, willingness to undergo
counseling and educational achievement, and instead
utterly ignores all factors counseling in favor of
release, falls outside the realm of the legitimate
exercise of discretion under the pre-1996 policies.
Inference instructs us that the Board inappropriately
relied on policies implemented in 1996, rather than
the parole policies in place at the time of Thomas's
crime and conviction.
Id. at 387. Of substantial concern to the Third Circuit was the fact that
the evidence demonstrated that the Board interpreted the amended
statute to "mandate foremost the consideration of public safety."
Id. at 391. "The Board mistakenly construed the 1996 statutory
change to signify a substantive change in its parole function."
Id. Notwithstanding this conclusion, the Third Circuit also
acknowledged a recent decision of the Pennsylvania Supreme Court,
Winklespecht v. Pa. Bd. of Prob. & Parole, 571 Pa. 685
813 A.2d 688
(2002), which concluded that the amended § 331.1 did not
require the Board to place the greatest weight on considerations
of public safety. Id. However, the Court of Appeals concluded
that the Winklespecht decision, "made 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 the case." Id.
(emphasis in original.)
In Mickens-Thomas I, as well as in other rulings issued by
the Third Circuit, the appropriate remedy for an Ex Post Facto
violation has been to remand the matter to the Board for
reconsideration, applying the pre-1996 law.*fn7 Hart v. Pa.
Bd. of Prob. & Parole, 2003 WL 22838381 (3d Cir. Nov. 23, 2003);
see also McLaurin v. Larkins, 2003 WL 22147497 (3d Cir.
Sept. 18, 2003); Hollawell v. Gillis, 65 Fed. Appx. 809, 2003
WL 1919371, at *8 (3d Cir. April 23, 2003). However, the class of
individuals awarded such relief has been limited to those who were denied parole after adoption of the 1996 changes and before
Winklespecht clarified the fact that the amendment did not
change the administration of the policies. In those cases where
parole was denied after Winklespecht, it was evident that the
denial of parole was based upon factors that would have resulted
in the denial of parole under pre-1996 policies and practices.
See Grob v. Pa. Bd. of Prob. & Parole, Civil No.
3:CV-04-0275, slip op. at 6 (M.D. Pa. Oct. 29, 2004) (Nealon,
J.); Sphar v. Pa. Bd. of Probation & Parole, Civil No.
3:CV-04-1145, slip op. at 7 (M.D. Pa. Oct. 29, 2004) (Munley,
J.); Schaeffer v. Pa. Bd. of Probation & Parole, Civil No.
3:CV0-4-1159, slip op. at 8 (M.D. Pa. Oct. 26, 2004) (Munley,
In this case, I agree with Respondent that it was not the
Board's application of harsher laws or guidelines that caused the
denial of parole. Rather, the Board specifically enumerated
multiple significant reasons for denying parole that would have
also warranted the denial of parole prior to the 1996 amendments.
Initially, I note that Smith's April 18, 2003 parole decision
came all most four months after the Pennsylvania Supreme Court
had decided Winklespecht, supra. Thus, unlike in the
Mickens-Thomas I, the Board had the benefit of Winklespecht
prior to conducting Smith's parole review. Additionally, the
Board listed a series of significant reasons for denying Smith
parole which stress, not public safety issues, but rather Smith's
own behavior and the Board's perception of his rehabilitation.
See Dkt. Entry 11, Ex. C, Board Decision of April 18, 2003. The
Board was obviously dissatisfied with Smith's refusal to accept
responsibility for the offenses he committed as well as his
refusal to even discuss his convictions at his parole hearing. (Id.) The Board also
appropriately considered the recommendation of the prosecuting
attorney. All of these items are included in § 331.19 as factors
to be considered in parole decisions.*fn8 Thus, Smith's
argument that the Board erroneously made public safety a
controlling factor in reviewing him for parole is without basis.
Based on the Petitioner's prior criminal history, failure to
accept responsibility for the offenses he has committed, the
recommendation of the prosecuting attorney, and his refusal to
discuss his convictions at his parole interview with the Hearing
Examiner and Board Member, there is little doubt that he would
have been denied parole regardless fo the 1996 amendments to the
Parole Act. Smith has not shown a violation of the Ex Post Facto
Clause and this claim shall be dismissed.
C. Merits of Smith's Due Process Claim
Smith also suggests that the Board violated his due process
rights when it "deviated," without explanation, from established
practices by considering "other factors deemed pertinent in determining that [Smith] should not be
paroled." (Dkt. Entry 1.) The Board's decision, in relevant part,
Other factors deemed pertinent in determining that
you should not be paroled:
Your refusal to discuss your convictions at your
parole interview indicate you are not a suitable
candidate for parole.
(Dkt. Entry 11, Exhibit C, Notice of Board Decision, dated
04/18/03.) Thus, the Board did articulate the "other factors"
that militated against parole. Smith's due process claim plainly
lacks merit. Furthermore, contrary to Smith's assertion, as
discussed earlier, the Board's decision clearly advised him of
the reasons for denying parole. Therefore, this claim will be
Smith's petition lacks merit, and there is no basis for
issuance of a certificate of appealability. An appropriate order
NOW, this 3rd day of JUNE, 2005, for the reasons set forth
in the accompanying Memorandum, IT IS HEREBY ORDERED THAT:
1. The petition for a writ of habeas corpus (Dkt. Entry 1) is
2. The Clerk of Court is directed to mark this matter CLOSED.
3. There is no basis for the issuance of a Certificate of