Bailey

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

RAYMONT BAILEY, No. 4:25-CV-00697

Petitioner, (Chief Judge Brann)

v.

PENNSYLVANIA PAROLE BOARD,

Respondent.

MEMORANDUM OPINION

DECEMBER 18, 2025

Petitioner Raymont Bailey initiated this action by filing a pro se petition for

a writ of habeas corpus under 28 U.S.C. § 2254. He challenges a 2023 parole

revocation decision by the Pennsylvania Parole Board (Board), alleging that the

Board’s decision violated the Ex Post Facto Clause of the United States

Constitution. Because Bailey has established a constitutional violation, the Court

will grant his Section 2254 petition.

I. BACKGROUND AND PROCEDURAL HISTORY

The relevant facts in this case are undisputed. Bailey was initially sentenced

to an aggregate term of two and a half to ten years’ incarceration in September

2014 by the Court of Common Pleas of Philadelphia County, Pennsylvania, for

controlled substance and firearm offenses.1 His controlling minimum and

maximum incarceration dates at that time were April 15, 2015, and October 15,

2022, respectively.2 On August 5, 2015, Bailey was released on parole.3

Bailey was at liberty on parole for 569 days—from August 5, 2015, to

February 24, 2017—at which time he was arrested for leaving the district without

authorization.4 On May 21, 2017, the Board recommitted Bailey as a “technical

parole violator (TPV),” and required him to serve six months’ incarceration for the

minor parole infraction.5 Bailey was released on automatic reparole, pursuant to

61 PA. CONS. STAT. § 6138(d)(3)(i), on August 24, 2017.6 At this time, he was

credited with the 569 days he spent at liberty on parole, so his maximum date

remained October 15, 2022.7

On March 2, 2022, Bailey was arrested by Philadelphia police and charged

with aggravated assault and several related offenses.8 He was arraigned on these

new charges on May 9, 2022, and his bail was set at $500,000, which bond Bailey

did not post.9 The Pennsylvania Department of Corrections’ detainer was lifted on

October 15, 2022, when Bailey reached the original maximum date on his 2014

2 Id.

3 Id.

4 Id.

5 Id.

6 Id. & n.3.

7 Id. at 261; Doc. 9-4 at 2; Doc. 9-5 at 2.

8 Bailey, 323 A.3d at 261.

9 See Doc. 9-11 at 3.

sentence.10 Bailey, however, remained in pretrial detention for the new March

2022 charges.11

On December 12, 2022, Bailey pled guilty to the March 2022 charges, which

included two counts of aggravated assault and one count each of person not to

possess a firearm and possession of an instrument of a crime.12 He was sentenced

by the trial court to an aggregate term of two to five years’ incarceration.13

In February 2023, the Board issued Bailey a notice of parole violation based

on the new 2022 convictions, and Bailey waived his right to a revocation hearing

and admitted to the violation.14 In its March 16, 2023 decision (mailed on March

21, 2023), the Board recommitted Bailey as a “convicted parole violator (CPV)” to

serve a recommitment period (otherwise known as “backtime”) of 36 months’

incarceration.15 The Board calculated Bailey’s new maximum date to be July 19,

2029.16

Notably, the Board refused to award Bailey credit for his 569 days of “street

time” (i.e., time at liberty on parole) previously awarded to him as a TPV because

he had committed a crime of violence—aggravated assault.17 According to the

10 Id.

11 Id.

12 Bailey, 323 A.3d at 261.

13 Id.

14 Id. at 261-62.

15 Id. at 262; Doc. 9-8 at 2.

16 Doc. 9-8 at 2.

17 Id.

Board, Bailey’s conviction for aggravated assault statutorily removed any

discretion for the Board to credit him with the 569 days he spent at liberty on

parole before TPV recommitment, and thus those days were added to the aggregate

calculation of his new parole violation maximum date.18

Bailey appealed the March 2023 parole revocation determination to the

Board, which affirmed the decision and new maximum date calculation.19 He then

appealed to the Commonwealth Court of Pennsylvania, which likewise affirmed

the Board’s decision in its entirety.20 On March 17, 2025, the Supreme Court of

Pennsylvania denied Bailey’s petition for allowance of appeal.21

Bailey filed the instant Section 2254 petition in this Court the following

month.22 His petition is fully briefed and ripe for disposition.

II. DISCUSSION

Bailey contends that the Parole Board’s March 2023 revocation decision

violates the Ex Post Facto Clause of the United States Constitution. Although it

appears that Bailey did not exhaust this constitutional claim in state court,

Respondent has not asserted this defense and has therefore forfeited it. After

careful consideration, the Court will grant Bailey’s Section 2254 petition.

18 Id. at 2-3 (citing 61 PA. CONS. STAT. § 6138(a)(2.1)(i)).

19 See generally Doc. 9-8.

20 See Bailey, 323 A.3d at 261, 265.

21 See Bailey v. Pa. Parole Bd., No. 486 MAL 2024, 335 A.3d 302 (Pa. 2025) (table).

22 See generally Doc. 1 (dated April 14, 2025).

A. State Exhaustion

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)23

mandates that petitioners demonstrate that they have “exhausted the remedies

available in the courts of the State” before seeking federal habeas relief.24 An

exhausted claim is one that has been “fairly presented” to the state courts “by

invoking one complete round of the State’s established appellate review process,”

and which has been adjudicated on the merits.25

If a state prisoner has not fairly presented a claim to the state courts “but

state law clearly forecloses review, exhaustion is excused, but the doctrine of

procedural default may come into play.”26 Generally, if a prisoner has

procedurally defaulted on a claim by failing to raise it in state-court proceedings, a

federal habeas court will not review the merits of the claim, even one that

implicates constitutional concerns.27 “This exhaustion requirement is predicated

on the principle of comity which ensures that state courts have the first opportunity

to review federal constitutional challenges to state convictions and preserves the

role of state courts in protecting federally guaranteed rights.”28

23 28 U.S.C. §§ 2241-2254.

24 Id. § 2254(b)(1)(A).

25 Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002) (quoting O’Sullivan v. Boerckel, 526

U.S. 838, 844-45 (1999)); see also Johnson v. Williams, 568 U.S. 289, 302 (2013).

26 Carpenter, 296 F.3d at 146 (citations omitted).

27 Martinez v. Ryan, 566 U.S. 1, 9 (2012) (citing Coleman v. Thompson, 501 U.S. 722, 747-48

(1991); Wainwright v. Sykes, 433 U.S. 72, 84-85 (1977)).

28 Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

On the record before this Court, it does not appear that Bailey asserted his ex

post facto claim in state court. Yet the relevant administrative regulations

expressly provide for the assertion of a constitutional claim on appeal of a parole

revocation decision.29 Thus, the Court observes that there does not appear to be

“an absence of available State corrective process.”30 Additionally, Bailey’s brief

on appeal to the Commonwealth Court of Pennsylvania invokes only Pennsylvania

law and does not include a federal constitutional challenge.31 As such, it does not

appear that the state courts had occasion to consider or rule on Bailey’s ex post

facto claim.

Respondent, however, has not raised, discussed, or even mentioned the issue

of failure to exhaust state remedies in their answer. This is despite the clear

requirements of Rule 5 of the Rules Governing Section 2254 Cases in the United

States District Courts: “The answer . . . must state whether any claim in the petition

is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity,

or a statute of limitations.”32 The Court declines to raise the issue of

nonexhaustion sua sponte in this case. That is because the record is well

29 See 37 PA. CODE § 73.1(a)(2) (“The scope of review of an appeal will be limited to whether

the decision is supported by substantial evidence, an error of law has been committed or there

has been a violation of constitutional law.”).

30 28 U.S.C. § 2254(b)(1)(B)(i).

31 See generally Brief for Petitioner, Bailey v. Pa. Parole Bd., 323 A.3d 259 (Pa. Commw. Ct.

2024) (No. 871 C.D. 2023), 2023 WL 11985121.

32 28 U.S.C. § 2254, Rule 5(b) (emphasis added).

developed, the facts are undisputed, and the merits strongly support Bailey’s ex

post facto claim.33

B. Merits of Ex Post Facto Claim

Bailey argues that, as part of the Board’s March 2023 revocation decision,

he was wrongly denied credit for the 569 days he spent at liberty on parole from

August 5, 2015 to February 24, 2017, credit that was previously awarded to him as

a technical parole violator (TPV) in 2017. He asserts that the Board improperly

relied on a version of 61 PA. CONS. STAT. § 6138 that was amended in June 2021 to

deny him credit for street time that accrued from 2015 to 2017 and was previously

awarded to him as a TPV in 2017, thus violating the Ex Post Facto Clause.

The Ex Post Facto Clause of the United States Constitution34 applies to a

statutory or policy change that “alters the definition of criminal conduct or

increases the penalty by which a crime is punishable.”35 The clause prohibits

Congress and state legislatures from enacting any law “which imposes a

punishment for an act which was not punishable at the time it was committed; or

33 See Granberry v. Greer, 481 U.S. 129, 135 (1987) (explaining that, although federal courts

may raise exhaustion sua sponte, “it may also be appropriate for the court . . . to hold that the

nonexhaustion defense has been waived in order to avoid unnecessary delay in granting relief

that is plainly warranted”); Smith v. Horn, 120 F.3d 400, 408 (3d Cir. 1997) (holding that

“miscarriage of justice” exception to exhaustion in nonexhaustion context “should include

cases where the record is well developed and the merits strongly support the petitioner’s

claim”).

34 U.S. CONST. art. I, § 10, cl. 1.

35 Mickens-Thomas v. Vaughn, 321 F.3d 374, 383 (3d Cir. 2003) (quoting Cal. Dep’t of Corr. v.

Morales, 514 U.S. 499, 506 n.3 (1995)).

imposes additional punishment to that then prescribed.”36 The inquiry for an ex

post facto challenge has two prongs: (1) “whether there was a change in the law or

policy which has been given retrospective effect,” that is, when it applies to events

occurring before its enactment; and (2) “whether the offender was disadvantaged

by the change.”37

Bailey correctly observes that, prior to the 2021 amendment, the Board did

not have the authority or discretion under 61 PA. CONS. STAT. § 6138 to refuse to

credit street time “previously granted to a parolee as a TPV when it subsequently

recommits the parolee as a CPV.”38 That changed on June 30, 2021, when the

Pennsylvania General Assembly amended Section 6138(c)(2) (relating to

“technical violators”) to state as follows:

If the offender is recommitted [as a technical violator], the offender

shall be given credit for the time served on parole in good standing but

with no credit for delinquent time and may be reentered to serve the

remainder of the original sentence or sentences. Credit awarded to a

technical parole violator for time served on parole in good standing is

subject to forfeiture if the offender is subsequently recommitted as a

convicted parole violator.39

Thus, the 2021 amendment to Section 6138(c)(2) explicitly provides the Board

with the authority (authority that it previously lacked) to forfeit street time

36 Weaver v. Graham, 450 U.S. 24, 28 (1981) (citation omitted).

37 Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282, 287-88 (3d Cir. 2005).

38 See Penjuke v. Pa. Bd. of Prob. & Parole, 203 A.3d 401, 420 (Pa. Commw. Ct. 2019),

superseded by statute as recognized by Bailey v. Pa. Parole Bd., 323 A.3d 259, 265 (Pa.

Commw. Ct. 2024).

39 61 PA. CONS. STAT. § 6138(c)(2) (2021) (amendment in emphasis).

formerly awarded to a technical parole violator (TPV) when that offender is

subsequently recommitted as a convicted parole violator (CPV).

Bailey contends that because he was credited with 569 days of street time as

a TPV before Section 6138(c)(2) was amended, that street time is “insulated from

forfeiture.”40 He asserts that the 2021 amendment only permits forfeiture of street

time credit awarded to a TPV “AFTER the effective date of the amendment.”41

According to Bailey, the Board—by applying a version of Section 6138(c)(2) that

was amended long after his 2014 convictions and years after he was awarded the

569 days of street time credit when he was recommitted as a TPV—violates the Ex

Post Facto Clause of the United States Constitution. Bailey is correct.

On September 23, 2025, the Commonwealth Court of Pennsylvania decided

Lincoln v. Pennsylvania Parole Board,42 a case that performs much of the heavy

lifting for Bailey’s ex post facto claim. In Lincoln, the petitioner—Edmund

William Lincoln, II—raised a claim nearly identical to that which Bailey asserts in

his Section 2254 petition. Lincoln, too, had been recommitted as a technical parole

violator after spending 243 days (from February 27, 2019, to October 28, 2019) at

liberty on parole, and had been awarded credit for that street time in his March

2020 recommitment as a TPV.43 He subsequently reoffended in 2023 and was

40 See Doc. 17 at 5.

41 Id.

42 344 A.3d 1173 (Pa. Commw. Ct. 2025).

43 See Lincoln, 344 A.3d at 1174.

recommitted as a convicted parole violator (CVP) in 2024.44 In its March 2024

revocation decision, the Board forfeited the 243 days of street time credit

previously awarded to Lincoln as a TPV.45

On appeal, Lincoln claimed that the Board had violated the Ex Post Facto

Clause “by forfeiting as parole credit a period of time which had been awarded to

him prior to the enactment of the statute permitting the forfeiture.”46 More

specifically, Lincoln argued:

In the instant matter, by a decision recorded on March 20, 2024, the

Board forfeited as parole liberty credit the 243-day period [Lincoln]

was at liberty on parole between February 27, 2019, and October 28,

2019. This time had been shielded from forfeiture in the initial

recommitment of [Lincoln] as a [TPV] on March 25, 2020. It could not

have been forfeited without the 2021 legislation . . . amending 61 [PA.

CONS. STAT.] § 6138(c)(2).47

The Commonwealth Court agreed. In a precedential decision, the panel

considered what appeared to be “an issue of first impression”48 and explained,

There is no dispute that when [Lincoln] was first recommitted as

a TPV on March 25, 2020, and the Board recalculated his parole

violation maximum date, he received a parole liberty credit for the 243

days between February 27, 2019, the date of his initial release on parole,

and October 28, 2019, the date he was declared delinquent. There is

also no dispute that the Board did not have the statutory authority to

forfeit credit awarded to a TPV for time served on parole in good

standing upon his subsequent recommitment as a CPV until Act 59 was

passed on June 30, 2021. Finally, it is undisputed that Lincoln was first

44 Id. at 1174-75.

45 Id. at 1175.

46 Id.

47 Id. at 1177 (third alteration in original).

48 Id. at 1178.

recommitted as a CPV on March 20, 2024, well after the passage of Act

59.

The problem presented by the undisputed facts of this case is that

they suggest a scenario that this Court previously warned against:

namely, the Board is reaching back into the past periods of parole that

predate the June 30, 2021 amendment to Section 6138(c)(2), and

removing credit that was previously granted to [Lincoln] as a TPV—

credit which had already been applied to his original sentence. This

retrospective forfeiture of street time credit that was previously

awarded to Lincoln prior to the passage of Act 59 clearly disadvantages

him as it adds the 243 days that he was previously credited with as a

TPV to his parole violation maximum date, thereby increasing his

punishment. We agree, therefore, that the Board contravened

[Lincoln]’s constitutional protections against the ex post facto

application [of] the law.49

The Court finds Lincoln’s holding to be well reasoned and persuasive.

Bailey’s nearly identical claim—that the Board violated the Ex Post Facto Clause

by relying on a version of Section 6138(c)(2) that was amended in 2021 to deny

him street time credit previously awarded to him as at a TPV in 2017—satisfies

both elements of the ex post facto analysis. First, there was a change in the law

that was given retrospective effect, i.e., the Board applied the June 30, 2021

amended version of Section 6138(c)(2) to events occurring before its enactment.

Specifically, the Board’s March 2023 parole revocation decision applied the

amended version of Section 6138(c)(2) to Bailey’s 2014 convictions and the 2017

recommitment decision that had awarded Bailey 569 days’ street time credit as a

49 Id. at 1179 (emphasis added).

TPV in order to forfeit those 569 days. Second, that decision clearly disadvantages

Bailey, as it adds 569 days to his parole violation maximum date.

In sum, the Parole Board’s March 16, 2023 decision to refuse to credit Bailey

with 569 days of street time previously awarded to him in 2017 as a TPV violates

the Ex Post Facto Clause of the United States Constitution. The Court will therefore

grant Bailey’s Section 2254 petition, vacate the Board’s decision in part, and direct

the Board to recalculate Bailey’s maximum parole violation sentence date by

reinstating the improperly denied 569 days of street time credit previously awarded

to Bailey as a TPV.

III. CONCLUSION

For the foregoing reasons, the Court will grant Bailey’s petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. The Pennsylvania Parole Board’s

March 16, 2023 decision will be vacated in part, and the Board will be required to

correct its recommitment calculations by reinstating the 569 days of street time

credit it improperly refused to award Bailey in that decision. An appropriate Order

follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge