United States District Court, M.D. Pennsylvania
October 19, 2005.
THEODORE L. KING, Petitioner
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
Theodore L. King, an inmate presently confined at the State
Correctional Institution, Huntingdon, Pennsylvania, filed this
pro se petition for writ of habeas corpus. Named as sole
Respondent is the Pennsylvania Board of Probation and Parole
("Parole Board"). Service of the petition was previously ordered.
Petitioner was convicted of murder, aggravated assault and
possession of an instrument of crime in the Philadelphia County
Court of Common Pleas. On June 10, 1980, he was sentenced to a
fifteen (15) to thirty (30) year term of incarceration. His
minimum sentence expired on February 9, 1995. The Petitioner's maximum sentence will not expire until February 9, 2010.*fn1
Since 1995, King has been denied parole eight (8) times.
Specifically, the Parole Board denied relief on April 4, 1995,
July 1, 1996, August 13, 1997, June 23, 1998, June 18, 1999,
December 28, 2000, September 27, 2002, and November 5, 2003.
King claims entitlement to federal habeas corpus relief on the
grounds that the Parole Board violated due process by basing its
denials of parole on the undefined standard "that the fair
administration of justice cannot be achieved through your
release." Id. at ¶ 8. Petitioner adds that the Respondent's
denial of parole following Pennsylvania's 1996 amendments to the
parole statute, "violated Petitioner's Constitutional right(s)
under the Ex Post Facto Clause." Doc. 1, p. 1.
King is also apparently arguing that the Parole Board's written
decisions failed to satisfy the requirements of due process
because they did not provide a brief statement of the reasons for
the denial of parole. Petitioner additionally indicates that his
claims were previously raised in an unsuccessful petition for
writ of mandamus before the Commonwealth Court of Pennsylvania
and that it would be futile to seek relief from the Pennsylvania Supreme Court.
Respondent argues that King is not entitled to habeas corpus
relief because: (1) he failed to exhaust state court remedies;
and (2) the most recent denial of parole did not violate the Ex
Post Facto Clause. This matter is ripe for consideration.
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).*fn2
King, citing Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59,
838 A.2d 684 (2003), argues that exhaustion of his state court remedies would have been futile in light of prior adverse
decisions by the Pennsylvania Supreme Court.
Since the filing of this action and submission of 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, 582 Pa. 27, 868 A.2d 416, 427 (2005), which
expressly overruled Finnegan, to the extent that the
Pennsylvania Supreme 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 King 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 King are clearly without
merit.*fn3 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").
II. Standard of Review
28 U.S.C. § 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States;. . . .
"The Antiterrorism and Effective Death Penalty Act of 1996
modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas
`retrials' and to ensure that state-court convictions are given
effect to the extent possible under law." Bell v. Cone,
535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has
been adjudicated on the merits by a state court, the federal
court reverses only when the decision was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). See generally, Gattis v. Snyder,
278 F.3d 222
, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95
1040-5 (3d Cir. 2001). The Court has held that the "contrary to"
and "unreasonable application" clauses of § 2254(d)(1) have
independent meaning. Williams v. Taylor, 529 U.S. 362
(2000). As explained in Bell, 535 U.S. at 694:
A federal habeas court may issue the writ under the
`contrary to' clause if the state court applies a
rule different from the governing law set forth in
our cases, or if it decides a case differently than
we have done on a set of materially indistinguishable
facts. . . . The court may grant relief under the
`unreasonable application' clause if the state court
correctly identifies the governing legal principle
from our decisions but unreasonably applies it to the
facts of the particular case. . . . The focus of the
latter inquiry is on whether the state court's
application of clearly established federal law is
objectively unreasonable. . . .
Resolution of factual issues by the state courts is presumed to
be correct unless the petitioner presents clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).
In summary, the appropriate inquiry for federal district courts
in reviewing the merits of § 2254 petitions is whether the state
court decisions applied a rule different from the governing law
set forth in United States Supreme Court cases, decided the case
before them differently than the Supreme Court has done on a set
of materially indistinguishable facts, or unreasonably applied
Supreme Court governing principles to the facts of the particular
case. State court factual findings may be set aside only if
rebutted by clear and convincing evidence. This Court will
address King's claims in accordance with the above standards.
III. Ex Post Facto
Petitioner initially asserts that the denials of parole were
premised on the undefined fair administration of justice standard
and therefore did not comply with due process. King explains that
the Parole Board violated the Ex Post Facto Clause of the
United States Constitution by applying the 1996 amendments to
Pennsylvania's parole regulations in his case.
In December 1996, the Pennsylvania state legislature amended
the law governing parole (61 Pa. Stat. § 331). Under the modified
criteria, protection of the safety of the public is the paramount
condition which must be considered in determining parole
A new law or policy violates the Ex Post Facto Clause of the United States Constitution when it is applied to events which
occurred prior to its enactment and disadvantages the offender
affected by it. Weaver v. Graham, 450 U.S. 24, 29 (1981). The
Ex Post Facto Clause 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). "One function of the Ex Post Facto Clause
is to bar enactments, which by retroactive operation increase the
punishment for a crime after its commission." Garner v. Jones,
529 U.S. 244, 249 (2000). A retroactive application of a change
in parole laws can constitute an ex post facto violation. See
id. at 250.
As previously noted, in 1996 the Pennsylvania legislature
amended its parole law by 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).*fn4 The former § 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
It is noted that the Petitioner was initially denied parole in
April, 1995. His second unsuccessful parole review transpired in
July, 1996. Both of those proceedings clearly transpired prior to
the December, 1996 enactments and clearly cannot serve as a
proper basis for his present ex post facto claim.
In Mickens-Thomas I, the Court of Appeals for the Third
Circuit addressed the ex post facto ramifications of the 1996
parole amendments. The Third Circuit noted that the essential
inquiry was "whether, in practice, the new language has
altered the fundament for reviewing parole applications." Id.
at 384 (emphasis added). It concluded that the 1996 amendments as
applied to Mickens-Thomas constituted an Ex Post Facto Clause
violation, noting 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
[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.
The Court noted that "[t]he Board mistakenly construed the 1996
statutory change to signify a substantive change in its parole
function." Id. However, the Third Circuit recognized that a recent decision of the Pennsylvania Supreme Court, Winklespecht
v. Pa. Bd. of Prob. & Parole, 571 Pa. 685, 813 A.2d 688 (2002),
concluded that the amended § 331.1 did not require the Board to
place the greatest weight on considerations of public safety.
Id. Unfortunately, the Winklespecht decision was announced
after the denial of parole to Mickens-Thomas.
With respect to Mickens-Thomas and other habeas applicants 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, the appropriate remedy
for an ex post facto violation has been to remand the matter to
the Parole Board for reconsideration, applying the pre-1996
law.*fn6 See Hart v. Pa. Bd. of Prob. & Parole, 82 fed.
Appx. 276 (3d Cir. Nov. 23, 2003); see also McLaurin v.
Larkins, 76 Fed. Appx. 415 (3d Cir. Sept. 18, 2003); Hollawell
v. Gillis, 65 Fed. Appx. 809, 2003 WL 1919371, at *8 (3d Cir.
April 23, 2003).
In cases where parole was denied after Winklespecht, habeas
relief has been denied where 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.).
Recently, the Third Circuit stated that in order to obtain
relief on an ex post facto claim, a Pennsylvania state prisoner
must show "both a retroactive change in law or policy and
that this change caused individual disadvantage" by increasing
the risk of punishment. Richardson v. Pennsylvania Parole
Board, 2005 WL 2155505 *1 (3d Cir. Sept. 8, 2005) (emphasis in
original). In Richardson, the Court added that it was not
sufficient for a prisoner to merely "show that the Board relied
on a new law or policy." Id. at * 9. Rather, the inmate must
show that he was personally disadvantaged.
The November 5, 2003 decision which denied parole to King
clearly came after the Pennsylvania Supreme Court had decided
Winklespecht. Based on a review of the record, it was not the
Parole Board's application of harsher laws or guidelines that
caused the denial of parole. As noted earlier, Petitioner was
denied parole twice prior to the enactment of the 1996
amendments. The Parole Board's most recent decision also
specifically enumerated legitimate reasons for denying parole
that would have also warranted the denial of parole prior to the
Unlike Mickens-Thomas I, the Parole Board had the benefit of
Winklespecht prior to conducting King's most recent parole review. The Parole Board's latest written decision listed a
series of significant reasons for denying King parole which
stress, not public safety issues, but rather the Petitioner's own
conduct and the Parole Board's perception of his suitability for
The November 5, 2003 decision noted that the Petitioner had
been interviewed and a review of his file had taken place. See
Doc. 11, Exhibit J. It clearly voiced dissatisfaction with King's
version of the nature and circumstances of his underlying crimes.
The written decision further indicated that reports, evaluations,
and assessments regarding Petitioner's physical, mental, and
behavior condition and history had been considered. Each of those
matters are included in § 331.19 as factors to be considered in
There is no indication that either public safety or the fair
administration of justice were controlling factors in the latest
decision to deny King parole. In light of his two earlier parole denials there is little doubt that Petitioner
would have been denied parole regardless of the subsequent
enactment of the 1996 amendments to the Parole Act. As required
under Richardson, King has not shown that he was personally
disadvantaged by the use of the 1996 amendments. Since a
violation of the Ex Post Facto Clause has not been established,
Petitioner's claim shall be dismissed.
King's remaining contention is that the Parole Board violated
due process because it failed to provide him with a brief
statement of the reasons for the decision to deny parole. As
noted above, the Petitioner was clearly given a written
meaningful statement of reasons for its action. See Greene v.
United States Parole Comm'n, 749 F. Supp. 650, 654 (M.D. Pa.
1990). An appropriate Order will enter.
AND NOW, THEREFORE, THIS 19th DAY OF OCTOBER, 2005, IT IS
HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is denied.
2. The Clerk of Court is directed to close the case.
3. Based on the Court's determination herein, there
is no basis for the issuance of a certificate of
© 1992-2005 VersusLaw Inc.