United States District Court, M.D. Pennsylvania
November 22, 2005.
JAMES ALBERT POLSTON, JR., Petitioner,
ATTORNEY GENERAL JERRY PAPPERT, ET AL., Respondents.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
MEMORANDUM AND ORDER
This pro se petition for writ of habeas corpus was
initiated by James Albert Polston, Jr. ("Petitioner"), an inmate
presently confined at the State Correctional Institution,
Cresson, Pennsylvania. Named as Respondents are Pennsylvania
Attorney General Jerry Pappert, the Pennsylvania Board of
Probation and Parole ("Parole Board") and the Warden at
Petitioner's prior place of incarceration. Service of the
petition was previously ordered.
Polston was convicted of involuntary deviate sexual
intercourse, rape, statutory rape, incest, and related offenses
following a 1991 non-jury trial in the Bucks County Court of
Common Pleas. He was subsequently sentenced to a seven (7) to
twenty (20) year term of incarceration. His conviction was affirmed on
direct appeal. See Commonwealth v. Polston, 616 A.2d 669 (Pa.
Superior 1992). A petition for allowance of appeal to the
Pennsylvania Supreme Court was denied. See Commonwealth v.
Polston, 626 A.2d 1157 (Pa. 1993). The minimum term of his
sentence expired on January 1, 1998. Polston's maximum sentence
expires on January 1, 2011.
On February 13, 1998, the Petitioner was denied parole for the
first time. The Parole Board's written denial cited numerous
factors for its decision including the Petitioner's substance
abuse, habitual offenses, need for sex offender treatment and
failure to obtain a favorable recommendation from the Department
of Corrections ("DOC"). Polston was denied release on parole for
a second time during December, 1999. A third parole application
was denied on January 22, 2004.
Following the last parole denial, Polston filed an unsuccessful
complaint in mandamus with Pennsylvania's Commonwealth Court. A
subsequent petition for allowance of appeal was denied by the
Pennsylvania Supreme Court.
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. Polston's 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. He adds
that the Parole Board's retroactive application of the 1996
amendments in addressing his parole application violated due
process. In addition, Polston maintains that the grounds for
denial of release cited by the Parole Board were "pretextual,
boilerplate, and without basis." Record document no. 1,
additional page 2. His contention is based on the Parole Board's
purported erroneous determination that he had not successfully
completed sex offender treatment. Petitioner concludes that he
would have been granted release under the parole policies which
were in effect at the time of his sentencing.
Respondents argue that Polston is not entitled to habeas corpus
relief because: (1) his claims are only properly asserted in a
civil rights action pursuant to 42 U.S.C. § 1983; and (2) the
most recent denial of parole did not violate the Ex Post Facto
Clause. This petition is ripe for consideration. Also pending are
Petitioner's motion to compel discovery. (Record document no. 14)
and his request to supplement his petition (Record document no.
Motion to Supplement
Polston has filed a request to supplement his petition with an
additional claim that the DOC "is entering patently false
information into his inmate record." Record document no. 13, p. 1. He indicates that false information
regarding his participation in sex offender therapy which has
been made part of his institutional record caused the denial of
his parole application. Accompanying the request is a proposed
Petitioner claims that he has successfully completed sex
offender programs at both SCI-Cresson and the State Correctional
Institution, Camp Hill, Pennsylvania. Despite his completion of
those programs, Polston was allegedly denied an institutional
recommendation for parole by his Unit Management Team on August
2, 2005 on the grounds that he failed to participate in sex
offender programs. Petitioner contends that he had a contractual
agreement with the DOC which he satisfied by completing sex
offender programs, but that the DOC breached its contractual
obligation by not forwarding certain paperwork from SCI-Cresson.
Due to the absence of said paperwork, the DOC refused to
recommend him for parole.
Respondents argue that the petition to supplement should be
denied because the allegations set forth therein are only
properly considered in a civil rights action, Polston failed to
exhaust his administrative remedies, and the alleged paperwork
snafu by the DOC does not implicate a violation of Polston's
constitutional rights by the Parole Board.
The claim set forth in Polston's proposed supplement is clearly
unrelated to the issue of whether an ex post facto violation
occurred. It is noted that the original petition was filed in February, 2005, and concerns a January 22,
2004 denial of parole. Accordingly, a challenge to an unfavorable
August 2, 2005 Unit Management Team recommendation is not germane
to Polston's original petition. Consequently, the petition to
supplement will be denied without prejudice. Petitioner, if he so
chooses and upon satisfaction of the exhaustion requirement, may
reassert his proposed supplemental claim in a new, separate
action. Nonetheless, since the issue of completion of sex
offender treatment is raised in the original petition, the Court
will take into consideration Petitioner's claim that he has
completed sex offender programming.
Petition to Compel Discovery
Also pending before the Court is Polston's petition for
discovery and deposition of records. See Record document no.
14. This is Polston's second request that this Court provide him
with various "material, books and papers, and records." Id. at
p. 1. In his latest filing, the Petitioner lists eleven (11)
separate document requests which he indicates will support his
claim of entitlement to federal habeas corpus relief.
A habeas petitioner may be granted leave of Court to engage in
discovery.*fn1 By Order dated March 14, 2005, this Court denied a prior, similar
request by the Petitioner. Based on a review of Polston's latest
submission, it remains the determination of this Court that full
and fair disposition of this action does not require review of
the requested discovery materials. However, the documents
accompanying the Petitioner's request will be taken into
consideration. The petition for discovery and deposition of
records will be denied.
The Respondents' initial argument maintains that under
Wilkinson v. Dotson, ___ U.S. ___, 125 S. Ct. 1242 (2005), this
matter should be dismissed because the Petitioner's present
claims should be asserted in a civil rights complaint pursuant to
42 U.S.C. § 1983.
During the time period surrounding the filing of this petition
on February 23, 2005, there were important federal and state case
law developments in the area of when, how, 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."
The Supreme Court's Wilkinson decision which was announced on
March 7, 2005, ruled that an ex post facto claim of the nature
presented here may be pursued in an action under § 1983. There is
no need to exhaust state court remedies before filing a § 1983
action. Although Justice Scalia, in a concurring opinion in which
Justice Thomas joined, suggested that habeas corpus would not be
available to pursue such a claim, the majority ruling did not
resolve that issue.
Given the "considerable jurisprudential confusion"*fn2 at
the time surrounding the litigation of an ex post facto claim, it
is unreasonable to expect that Polston could have predicted the
Wilkinson decision. In any event, the issue is academic because
the underlying claims lack merit whether brought in habeas or
under § 1983. Ex Post Facto
Polston 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 1991, 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
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.
On February 13, 1998, Polston was initially considered for, and
denied parole. The Parole Board listed the following factors in
support of its decision: substance abuse, habitual offender,
assaultive instant offense, very high assaultive behavior
potential, victim injury, need for treatment, failure to
participate in a sex offenders program, and an unfavorable
recommendation from the DOC. See Record document no. 11,
On December 30, 1999, the Petitioner was again denied release.
In its written decision, the Parole Board stated that its
"mandate to protect the safety of the public and to assist in the
fair administration of justice cannot be achieved through your
release on parole." Id. at Exhibit G.
The most recent denial of parole to Polston occurred on January
22, 2004. In that ruling, the Parole Board noted that it had
interviewed the Petitioner and reviewed his file. See id. at
Exhibit H. The Parole Board concluded 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." Id. The decision added that Polston would
be reconsidered for parole during December, 2006, at which time the Parole Board would consider:
whether you have successfully completed a treatment
program for: sex offenders that reconciles the
official version and your version.
Whether you have maintained a favorable
recommendation for parole from the Department of
Whether you have maintained a clear conduct record
and completed the County Prison's prescribed
Your version of the crime and blaming others is
totally incompatible with the facts of the crime.
Updated sex offender program and sex offender
assessment board evaluation to be available at time
Id. The Parole Board issued a modified decision on May 7, 2004
which added that denial of parole was also appropriate because of
Polston's version of the nature and circumstances of his
underlying crimes, and that he had received fourteen (14)
misconducts during the review period. It also clarified that
Petitioner had to complete DOC prescriptive programs as opposed
to county prison prescriptive programs. See id. at Exhibit I.
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 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.
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,
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 2004 decision which denied parole to Polston 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 Polston was being denied parole based on his version of the
nature and circumstances underlying his conviction; his poor
institutional behavior consisting of fourteen (14) misconducts,
and his blaming of others which was incompatible with the facts
of his case. See Record document no. 11, Exhibit I.
Unlike Mickens-Thomas I, the Parole Board had the benefit of
Winklespecht prior to conducting Polston's 2004 parole review.
The Parole Board's decision listed a series of significant
reasons for denying Polston 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 2004 decision clearly voiced dissatisfaction with Polston's
institutional behavior and lack of responsibility for his crimes.
Both 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 was a controlling factor in the 2004
decision to deny Polston 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, Polston 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
IT IS HEREBY ORDERED THAT:
1. The petition for writ of habeas corpus is
2. Polston's petition to supplement (Record document
no. 13) is DENIED. 3. Petitioner's motion (Record document no. 14) for
discovery and deposition of records is DENIED.
4. The Clerk of Court is directed to close the case.
5. Based on the Court's determination herein, there
is no basis for the issuance of a certificate of
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