United States District Court, M.D. Pennsylvania
October 24, 2005.
RONALD G. ROBINSON, Petitioner,
DONALD KELCHNER, Respondent.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER
Ronald G. Robinson, an inmate presently confined at the State
Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp
Hill), filed this pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Camp
Hill Superintendent Donald Kelchner. Service of the petition was
Petitioner states that on February 6, 1984, he was convicted of
burglary (9 counts); criminal trespass; and receiving stolen
property (8 counts) in the Allegheny County Court of Common
Pleas. Robinson was subsequently sentenced to a five (5) to
twenty (20) year term of incarceration.
By decision dated August 22, 1988, the Pennsylvania Board of
Probation and Parole (Parole Board) granted Robinson parole
effective September 1, 1988 (the expiration of his minimum
sentence). Between 1988 through 1996 the Petitioner's parole was revoked and he was granted reparole on various occasions.
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
eligibility. On April 2, 1998, Robinson's parole was revoked and
he was ordered to serve twelve (12) months backtime following his
conviction for harassment. Petitioner was denied parole on March
4, 1999. However, Robinson was reparoled on August 31, 1999.
On May 19, 2002, Robinson was arrested in Pittsburgh and
charged with criminal trespass and criminal mischief. As a
consequence of this arrest, the Parole Board issued a detainer.
Petitioner was subsequently convicted of those charges.
Thereafter, the Parole Board issued a decision on July 30, 2003
which ordered Robinson to be recommitted as a convicted parole
violator and serve nine (9) months backtime. The decision also
advised Robinson that in order to obtain a favorable
determination at his next parole review he should comply with
prescriptive program requirements, undergo drug and alcohol
counseling, and avoid institutional misconduct. See Doc. 11,
Petitioner was denied parole on June 1, 2004. His present
action contends that the Parole Board violated the Ex Post Facto
Clause by not applying the parole regulations which were in
effect at the time of his original sentencing in 1984. His
petition adds that he should be excused from the exhaustion of
state remedies requirement because to do so would be a "fruitless and wasted
effort." Doc. 1, ¶ 13.
Respondent argues that Robinson 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
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).*fn1
As previously noted, Robinson argues that exhaustion of his
state court remedies would have been futile in light of prior adverse decisions by the Pennsylvania Supreme Court. See Doc.
1, ¶ 13.
Since the filing of this action on November 2, 2004 and the
subsequent submission of the Respondent's answer 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 F.3d 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 overruled Finnegan v.
Bd. of Prob. & Parole, 576 Pa. 59, 838 A.2d 684 (2003), by
recognizing 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
Robinson filed his petition 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, 393 F.3d at 446 (Weis, J., concurring). Nonetheless, the
question of exhaustion need not be resolved as the claims
presented by Robinson are clearly without merit.*fn2 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
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
, 104-05 (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 Robinson's claims in accordance with the above
III. Ex Post Facto
Robinson claims entitlement to federal habeas corpus relief on
the grounds 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. He
contends that since his original state criminal conviction
occurred in 1984, the parole regulations which were in effect at
that time should be applied in his case.
As noted earlier, 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).*fn3 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 society.*fn4
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, Petitioner was initially granted parole in
August, 1988. See Doc. 11, Exhibit A. Between 1988 and 1998,
Robinson had multiple parole revocations and grants of reparole.
Clearly, any parole related proceedings which transpired prior to
the December, 1996 enactments cannot serve as a proper basis for
his present ex post facto claim. On April 2, 1998, Petitioner's
parole was revoked. See id. at Exhibit B. However, after
being denied parole in March, 1999, Robinson was granted reparole
on August 31, 1999. See id. at Exhibits C & D. In light of
his being reparoled, any ex post facto claim stemming from those
proceedings is subject to dismissal on the basis of mootness.
Robinson was arrested on May 19, 2002 and charged with criminal
trespass and criminal mischief. His parole was revoked on July
30, 2003 as a result of his conviction on those charges. See
id. at Exhibit F. On June 1, 2004, Robinson was denied parole. See id. at Exhibit G.
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.*fn5 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, federal
habeas corpus 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 June 1, 2004 decision which denied parole to Robinson
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. The Parole Board's decision
specifically enumerated legitimate reasons for denying parole
that would have also warranted the denial of parole prior to the
1996 amendments. Specifically, the Parole Board's written
decision clearly stated that Robinson was being denied parole
based on his history of prior failures when granted parole; his
poor institutional behavior including reported misconducts, and
his refusal to accept responsibility for new crimes committed
while on parole. See Doc. 11, Exhibit G. Unlike Mickens-Thomas I, the Parole Board had the benefit of
Winklespecht prior to conducting Robinson's June, 2004 parole
review. The Parole Board's decision listed a series of
significant reasons for denying Robinson parole which stress, not
public safety issues, but rather the Petitioner's own conduct and
the Parole Board's perception of his suitability for release.
The June 1, 2004 decision clearly voiced dissatisfaction with
Robinson's institutional behavior, recidivism, and lack of
responsibility for his most recent crimes. Each of those matters
are encompassed in § 331.19 as factors to be considered in parole
There is no indication that either public safety or the fair
administration of justice were controlling factors in the 2004
decision to deny Robinson parole. It is apparent to this Court
that Petitioner would have been denied parole regardless of the
subsequent enactment of the 1996 amendments to the Parole Act. As
required under Richardson, Robinson 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 request for federal habeas corpus relief will be
denied. An appropriate Order will enter.
AND NOW, THEREFORE, THIS DAY OF OCTOBER, 2005, IT IS HEREBY
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
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