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Rivera v. Gillis

January 25, 2006

CARLOS DEJESUS RIVERA, PETITIONER
v.
FRANK GILLIS, ET AL., RESPONDENTS.



The opinion of the court was delivered by: William W. Caldwell United States District Judge

MEMORANDUM

I. Introduction

Petitioner, Carlos Rivera, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the decision of the Pennsylvania Board of Probation and Parole ("the Board") denying him parole. He makes the following claims. First, that the Board denied parole in violation of the Equal Protection and Due Process clauses of the United States Constitution. Second, the Board's decision violates the Ex Post Facto Clause of the federal Constitution because it applied statutory changes to the parole law made in 1996 and 2000 to an offense committed in 1994, resulting in an increase in his incarceration.

For the reasons that follow, the petition will be denied.

II. Background

Rivera is currently serving an aggregate term of not less than nine years and six months to not more than twenty-five years imprisonment pursuant to a 1994 conviction in the Lehigh County Court of Common Pleas. (Doc. 12, Ex. 1, Martinez Decl., ¶25). His minimum sentence expired on November 23, 2003, and his maximum sentence is set to expire on May 23, 2019. (Id. at ¶26). He has applied for parole on two occasions and been denied each time. (Id. at ¶¶28, 30).

Rivera challenged his September 19, 2003, and August 23, 2004, denials by filing a petition for a writ of mandamus in the Commonwealth Court of Pennsylvania. (Doc. 3, Ex. B). On November 16, 2004, that court denied the petition. (Id., Ex. D). Rivera then filed a petition for an allowance of appeal in the Pennsylvania Supreme Court, which was denied on April 1, 2005. (Id.).

In its September 19, 2003, decision, the Board determined that Petitioner's parole eligibility would be reviewed in or after August, 2005. (Id., Ex. A). The notice explaining the Board's decision states 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. The reasons for the Board's decision include the following: Your version of the nature and circumstances of the offense(s) committed; your need to participate in and complete additional institutional programs.

You will be reviewed in or after August, 2004, or earlier, if recommended by the Department of Corrections/county prison staff.

At your next interview, the Board will review your file and consider: whether you have participated in a treatment program for: sex offenders phase II; whether you have maintained a favorable recommendation for parole from the Department of Corrections; whether you have maintained a clear conduct record and completed the Department of Corrections prescriptive program(s). (Id.).

In its August 23, 2004, decision, the Board determined that Petitioner's parole eligibility would be reviewed in or after February, 2006. (Id.). The notice explaining the Board's decision states 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. ยง 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. The ...


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