Newman v. Beard

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-2652

CLIFFORD T. NEWMAN, JR.,

Appellant

v.

JEFFREY A. BEARD, Director of the Department

of Corrections; MICHAEL GREEN, Chairman of Probation

and Parole Board of Pennsylvania; DIANE L. DOMBACH,

Director of Sexual Offenders Assessment Board

On Appeal from the United States District Court

for the District of Western Pennsylvania

(D.C. Civil No. 3-06-cv-00214)

District Judge: Hon. Kim R. Gibson

Argued April 15, 2010

Before: SLOVITER and HARDIMAN, Circuit Judges, and

POLLAK*, District Judge

(Filed August 16, 2010)

Thomas S. Jones

Jerome J. Kalina (Argued)

Jennifer G. Betts

Jones Day

Pittsburgh, PA 15219

*

Hon. Louis H. Pollak, Senior Judge, United States District

Court for the Eastern District of Pennsylvania, sitting by

designation.

Attorneys for Appellant

Thomas W. Corbett, Jr.

Attorney General

Kemal Alexander Mericli (Argued)

Senior Deputy Attorney General

Calvin R. Koons

Senior Deputy Attorney General

John G. Knorr, III

Chief Deputy Attorney General

Appellate Litigation Section

Office of Attorney General

Pittsburgh, PA 15219

Attorneys for Appellees

_______

OPINION OF THE COURT

_______

SLOVITER, Circuit Judge.

Appellant Clifford Newman, a convicted sex offender,

argues that the Parole Board violated his First Amendment right,

his right to due process, and the Ex Post Facto Clause of the

Constitution by using his refusal to admit his guilt to adversely

affect his eligibility for parole.

I.

Background

In 1987, Newman was found guilty of committing two

rapes and related sexual offenses after a jury trial in a

Pennsylvania state court. He was sentenced in 1988 to twenty to

forty years imprisonment. Newman ultimately exhausted his

direct and post-conviction appeals after more than a decade of

litigation. He also sought federal habeas relief, which was

denied notwithstanding his persistent and consistent claim that

he is not guilty.

2

In 2000, while Newman was serving his sentence, the

Pennsylvania General Assembly enacted 42 Pa. Cons. Stat. Ann.

§ 9718.1 (2001). That statute provides that certain sex offenders

“shall attend and participate in a Department of Corrections

program of counseling or therapy . . . .” Id. § 9718.1(a). A sex

offender “shall not be eligible for parole unless the offender has .

. . participated in the program . . . .” Id. § 9718.1(b)(1)(ii). The

statute gives the Department of Corrections “the sole discretion

with respect to counseling or therapy program contents and

administration . . . .” Id. § 9718.1(c). The Department of

Corrections administers a sexual offender program (“SOP”) in

accordance with § 9718.1. Prior to the enactment of § 9718.1,

there was no Pennsylvania statute or regulation that required

convicted sex offenders to attend a counseling or therapy

program as a condition of parole eligibility.

According to Newman’s complaint, the Department

“requires all inmates to admit guilt” in order “to attend the

[SOP].” App. at 25. Although an earlier version of the SOP

included a “non-admitters program,” the Department no longer

offers the program at the State Correctional Institution at

Houtzdale, where Newman is presently incarcerated. Newman

alleges that he is unable to attend the SOP because he refuses to

admit his guilt.

The parole process in Pennsylvania is administered by the

Board of Probation and Parole, generally referred to as the

“Parole Board.” See generally 61 Pa. Cons. Stat. Ann. §§ 6111-

6139. Newman became eligible for parole in 2007 and met with

a parole hearing examiner for an interview. According to

Newman’s complaint, the hearing examiner “noted that

[Newman] . . . ha[d] not attended the [SOP]” and stated that his

failure to attend “put [him] in a ‘Catch 22’ since the Parole

Board required the completion of the [SOP] before parole would

be granted.” App. at 29. On April 18, 2007, the Parole Board

denied Newman’s parole application. The Parole Board issued a

written decision stating that “[y]our 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.” App. at

39.

3

The Parole Board gave the following reasons for denying

Newman parole:

Your minimization/denial of the nature and circumstances

of the offense(s) committed.

Your refusal to accept responsibility for the offense(s)

committed.

Your lack of remorse for the offense(s) committed.

The negative recommendation made by the Department of

Corrections.

Your unacceptable compliance with prescribed

institutional programs.

Your need to participate in and complete additional

institutional programs.

Your interview with the hearing examiner.

App. at 39.

The Parole Board’s written decision also stated that at

Newman’s next interview,

the Board will review your file and consider . . . whether

you have successfully completed a treatment program for

sex offender[s,] whether you have received 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)[,] [and] current

mental health evaluation to be available at time of review.

App. at 40.

Newman has remained incarcerated since the decision

and has not been granted parole. In 2007, Newman filed a pro se

civil action under 42 U.S.C. § 1983 against various officials of

4

the Pennsylvania Department of Corrections (collectively, the

“Parole Board”) challenging, inter alia, the adverse parole

determination. He thereafter filed an amended complaint

asserting three claims relevant to this appeal.

First, Newman alleged that the Parole Board

unconstitutionally required him to admit his guilt in violation of

the First Amendment. Next, Newman alleged that “[t]he

precondition . . . of an admission of guilt and the completion of

the [SOP] made the parole process a sham where the [Parole

Board] only went through the steps but did not give actual

consideration to [Newman’s] application which violates [his]

Fourteenth Amendment due process rights.” App. at 23.

Finally, Newman alleged that the Parole Board “retroactively

applied 42 Pa. [Cons. Stat. Ann.] § 9718.1 to [his parole

application]” in violation of the Ex Post Facto Clause of the

Constitution.1 Appellant’s Br. at 9. Newman sought injunctive

and declaratory relief.

The Parole Board filed a motion to dismiss for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6), and

the Magistrate Judge issued a Report and Recommendation that

recommended dismissal of the amended complaint. The

Magistrate Judge determined that Newman’s constitutional

claims failed because there is no federal or state right to parole.

The Magistrate Judge also determined that Newman did not have

standing to assert a due process claim based on 42 Pa. Cons.

Stat. Ann. § 9718.1 because the statute “does not apply to him.”

App. at 9. The District Court summarily adopted the Report and

Recommendation of the Magistrate Judge and dismissed the

amended complaint. Newman filed this pro se appeal, and we

appointed counsel.

II.

1

Newman’s pro se amended complaint did not explicitly

assert violation of the Ex Post Facto clause, but his appointed

counsel in this appeal has construed Newman’s claim as such

without objection by the Parole Board. We will do the same.

5

Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §

1331, and we have jurisdiction under 28 U.S.C. § 1291. We

exercise plenary review of the District Court’s order granting a

motion to dismiss for failure to state a claim. Gelman v. State

Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). We

accept all factual allegations as true, construe the amended

complaint in the light most favorable to Newman, and determine

whether, under any reasonable reading of the amended

complaint, he may be entitled to relief. See id. (quotation and

citation omitted).

III.

Discussion

A. General Principles

The opinion in McKune v. Lile, 536 U.S. 24 (2002), is of

particular relevance to the issues presented in this appeal

because the Supreme Court was presented with arguments

somewhat analogous to those made by Newman in this case.

Lile, like Newman, was a convicted sex offender who persisted

in maintaining his innocence and refused to participate in the

state’s Sexual Abuse Treatment Program which required him to

sign an admission of responsibility form. Id. at 29, 31. The

Court, in a plurality opinion, rejected Lile’s claim that the

consequential withdrawal of certain privileges violated his right

against self-incrimination. Id. at 48. His status would be

reduced from Level III to Level I, curtailing his visitation rights,

earnings, work opportunities, ability to send money to family,

canteen expenditures, access to personal television, and others.

Id. at 39. Although the discussion was focused on the

compulsion aspect of the Fifth Amendment, it is, if not directly

precedential, certainly informative for our consideration of

Newman’s claims.

The McKune opinion recognized that “[s]ex offenders are

a serious threat in this Nation.” Id. at 32. The opinion stated

that “[t]herapists and correctional officers widely agree that

6

clinical rehabilitative programs can enable sex offenders to

manage their impulses and in this way reduce recidivism. An

important component of those rehabilitation programs requires

participants to confront their past and accept responsibility for

their misconduct.” Id. at 33 (citation omitted). It quoted from

sources that state that denial is generally regarded as one of the

principal impediments to successful therapy. Id.

We proceed to review Newman’s claims in light of these

considerations.

B. First Amendment Claim

Newman argues that the Parole Board violated his First

Amendment rights by requiring him “to state a belief that he

does not hold to be true” – i.e., his guilt – in order to obtain

parole. Appellant’s Br. at 24. The Parole Board contends that

“[i]f it is not unconstitutionally compelled speech in violation of

the Fifth Amendment, neither can it be such in violation of the

First Amendment.” Appellees’ Br. at 31; see U.S. Const. amend.

V (“No person . . . shall be compelled in any criminal case to be

a witness against himself.”). As a threshold matter, we decline

the Parole Board’s invitation to cabin Newman’s First

Amendment claim under a Fifth Amendment “compelled

speech” framework. “[T]he touchstone of the Fifth Amendment

is compulsion . . . , ” Lefkowitz v. Cunningham, 431 U.S. 801,

806 (1977), and “a violation of the First Amendment right

against compelled speech” similarly “occurs only in the context

of actual compulsion,” C.N. v. Ridgewood Bd. of Educ., 430 F.3d

159, 189 (3d Cir. 2005). The two amendments serve different

purposes. The Fifth Amendment protects the right not to “be

compelled in any criminal case to be a witness against

[one]self,” while the First Amendment protects, among other

things, “the right to refrain from speaking at all.” Wooley v.

Maynard, 430 U.S. 705, 714 (1977). Newman has not been

compelled to speak. If he did not seek parole voluntarily, he

would remain in prison for the remainder of his sentence without

admitting his guilt. Cf. Ohio Adult Parole Auth. v. Woodard,

523 U.S. 272, 286 (1998) (“It is difficult to see how a voluntary

interview [for clemency] could ‘compel’ [the inmate] to

speak.”). Thus, we reject the Parole Board’s suggestion that the

7

Fifth Amendment is implicated in this case, a claim that

Newman disavows.

We turn instead to the First Amendment which protects

the “right of freedom of thought” and “individual freedom of

mind” and encompasses “both the right to speak freely and the

right to refrain from speaking at all.” Wooley, 430 U.S. at 714

(citations omitted). Thus, “a State may not inquire about a

man’s views or associations solely for the purpose of

withholding a right or benefit because of what he believes.”

Baird v. State Bar of Ariz., 401 U.S. 1, 7 (1971).

Nevertheless, an inmate’s constitutional rights are

“necessarily limited.” Waterman v. Farmer, 183 F.3d 208, 213

(3d Cir. 1999). “The fact of confinement and the needs of the

penal institution impose limitations on constitutional rights,

including those derived from the First Amendment, which are

implicit in incarceration.” Jones v. N.C. Prisoners’ Labor

Union, Inc., 433 U.S. 119, 125 (1977). The Supreme Court “has

repeatedly recognized the need for major restrictions on a

prisoner’s rights,” id. at 129 (citations omitted), and it is settled

law that an inmate “retains those First Amendment rights that are

not inconsistent with his status as a prisoner or with the

legitimate penological objectives of the corrections system,” Pell

v. Procunier, 417 U.S. 817, 822 (1974); see also Turner v.

Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation

impinges on inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological interests.”).

Newman has not alleged that the Parole Board’s

admission of guilt requirement serves no “legitimate penological

objectives” or is not reasonably related to rehabilitation. Pell,

417 U.S. at 822. Nor could Newman have reasonably done so.

As we noted above, a plurality of the Supreme Court recognized

that “States . . . have a vital interest in rehabilitating convicted

sex offenders” and “acceptance of responsibility for past

offenses” is a “critical first step” in a prison’s rehabilitation

program for such offenders. McKune, 536 U.S. at 33. The

plurality further stated that “[a]cceptance of responsibility is the

beginning of rehabilitation.” Id. at 47. The dissenting opinion

was not to the contrary. Justice Stevens, joined by three other

8

Justices, acknowledged that a sex offender program requiring an

admission of guilt “clearly serves legitimate therapeutic

purposes.” Id. at 68 (Stevens, J., dissenting).

In an apparent attempt to distinguish this authority,

Newman argues that “[r]equiring false admissions of guilt from

innocent prisoners . . . does not facilitate rehabilitation.”

Appellant’s Br. at 27 (emphasis added). However, once the

Commonwealth met its burden of proving at trial that Newman

was guilty of the offenses, Newman no longer “come[s] before

the Court as one who is ‘innocent,’ but, on the contrary, as one

who has been convicted by due process . . . .” Herrera v.

Collins, 506 U.S. 390, 399-400 (1993). It follows that the prison

may structure its treatment programs and pursue legitimate

penological objectives from that standpoint.2 Newman’s First

Amendment claim was therefore properly dismissed.3

2

Under Turner, 482 U.S. at 89-90, courts consider three

factors once a “rational connection” has been shown between the

policy and a legitimate penological interest. Fontroy v. Beard, 559

F.3d 173, 177-78 (3d Cir. 2009). Newman does not argue that the

SOP ran afoul of those factors, so we have no occasion to address

them.

3

Newman also argues that he stated two additional First

Amendment claims. First, Newman contends that he stated a valid

claim for First Amendment retaliation. See Appellant’s Br. at

27-28; see also Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

Next, Newman asserts that he stated a claim under the

unconstitutional conditions doctrine. See Appellant’s Br. at 29-30;

see also Anderson v. Davila, 125 F.3d 148, 161 n.12 (3d Cir.

1997). Because we hold that the Parole Board did not violate

Newman’s First Amendment rights by requiring him to admit guilt

to participate in the SOP, his claims for First Amendment

retaliation and unconstitutional condition necessarily fail as well.

See Rauser, 241 F.3d at 333 (“As a threshold matter, a

prisoner-plaintiff in a retaliation case must prove that the conduct

which led to the alleged retaliation was constitutionally

protected.”) (emphasis added); Anderson, 125 F.3d at 161 n.12

(explaining that the “government may not deny a benefit to a

9

C. Fourteenth Amendment Due Process Claims

Newman also argues that the District Court erred by

dismissing his due process claims. The Due Process Clause of

the Fourteenth Amendment prohibits States from depriving “any

person of life, liberty, or property, without due process of law.”

U.S. Const. amend. XIV, § 1. Although Newman’s pro se

amended complaint does not distinguish procedural due process

from substantive due process, we address both claims consistent

with the parties’ briefing.

i. Substantive Due Process

“[T]he Due Process Clause contains a substantive

component that bars certain arbitrary, wrongful government

actions ‘regardless of the fairness of the procedures used to

implement them.’” Zinermon v. Burch, 494 U.S. 113, 125

(1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

Conduct can violate substantive due process if it “‘shocks the

conscience,’ which encompasses ‘only the most egregious

official conduct.’” Chainey v. Street, 523 F.3d 200, 219 (3d Cir.

2008) (quoting United Artists Theatre Circuit, Inc. v. Twp. of

Warrington, 316 F.3d 392, 400 (3d Cir. 2003)). The conduct

must be “intended to injure in some way unjustifiable by any

government interest . . . .” Cnty. of Sacramento v. Lewis, 523

U.S. 833, 849 (1998).

Newman’s substantive due process claim was properly

dismissed because the Parole Board’s alleged conduct was not

arbitrary and does not “shock[ ] the conscience.” Chainey, 523

F.3d at 219. As noted above, the Parole Board had legitimate

penological reasons for requiring Newman to admit guilt in the

SOP, the content of which is determined by the Department of

Corrections in its “sole discretion.” 42 Pa. Cons. Stat. Ann. §

9718.1(c). The Parole Board’s conduct was therefore not

“intended to injure in some way unjustifiable by any government

person on a basis that infringes his constitutionally protected

freedom of speech . . . .”) (citations and internal quotation marks

omitted).

10

interest.” Lewis, 523 U.S. at 849.4

ii. Procedural Due Process

Newman also challenges the dismissal of his procedural

due process claim, arguing that the Parole Board’s “review of his

application was a sham” that was “inextricably tied to [his]

refusal to admit guilt . . . .” Appellant’s Br. at 19. The Parole

Board responds that Newman “has no actual right to parole . . .

and thus no ‘liberty interest’ sufficient to claim an entitlement to

any procedural due process whatsoever.” Appellees’ Br. at 12.

“In analyzing a procedural due process claim, the first

step is to determine whether the nature of the interest is one

within the contemplation of the ‘liberty or property’ language of

the Fourteenth Amendment.” Shoats v. Horn, 213 F.3d 140, 143

(3d Cir. 2000) (citing Fuentes v. Shevin, 407 U.S. 67 (1972)).

“Once we determine that the interest asserted is protected by the

Due Process Clause, the question then becomes what process is

due to protect it.” Id. (citing Morrissey v. Brewer, 408 U.S. 471,

481 (1972)). The underlying liberty interest can be derived

directly from the Due Process Clause or from the state’s

statutory scheme. See Asquith v. Dep’t of Corr., 186 F.3d 407,

409 (3d Cir. 1999) (“A protected liberty interest may arise from

only one of two sources: the Due Process Clause or the laws of

a state.”).

The Supreme Court has held that the Constitution does

not establish a liberty interest in parole that invokes due process

protection. See Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979). Thus, if Newman has a

protected liberty interest in some aspect of his parole, it must

derive from the Pennsylvania parole statute. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995) (recognizing that “States

may . . . create liberty interests which are protected by the Due

Process Clause”).

4

We have examined Newman’s additional substantive due

process arguments and find them unpersuasive.

11

The relevant Pennsylvania parole statute provides that the

Parole Board “shall have the power, and it shall be its duty, to

consider applications for parole by a prisoner . . . .” 61 P.S. §

331.22 (2007), repealed by 2009 Pa. Laws 33. The statute

further provides that the Parole Board shall have “the duty” to

consider, inter alia, “[t]he general character and background of

the prisoner” and “the conduct of the person while in prison and

his physical, mental and behavior condition and history . . . .” 61

P.S. § 331.19 (2007), repealed by 2009 Pa. Laws 33.5

The Parole Board concedes that Newman is entitled to

have his parole application “fairly considered.” Appellees’ Br.

at 12. Such a right is not without support. See Mickens-Thomas

v. Vaughn, 321 F.3d 374, 393 (3d Cir. 2003) (“Mickens-Thomas

I”) (discussing Parole Board’s duty to “give [the inmate] a fair

hearing” in context of due process challenge); Jamieson v.

Commonwealth, Pa. Bd. of Prob. & Parole, 495 A.2d 623, 627

(Pa. Commw. Ct. 1985) (“[A] prisoner does have the right to

apply for parole . . . and have that application fairly considered

by the Board.”) (citations omitted); accord Banks v. Bd. of Prob.

& Parole, 4 Pa. Commw. Ct. 197, 200 (1971). However, as the

Pennsylvania Supreme Court has explained, “the Parole Board’s

decision to grant or deny parole does not affect an existing

enjoyment of liberty.” Rogers v. Pa. Bd. of Prob. & Parole, 724

A.2d 319, 323 (Pa. 1999); see also Coady v. Vaughn, 770 A.2d

287, 289 (Pa. 2001) (“[T]he decision to deny parole . . . does not

implicate any constitutionally protected interest.”).

Newman’s procedural due process claim must fail

because, to the extent that Newman has a state law right to have

his application “fairly considered,” the Parole Board gave his

application all the consideration it was due. The Parole Board

was permitted to consider Newman’s “general character and

background,” his “conduct . . . while in prison,” and his “mental

and behavior condition.” 61 P.S. § 331.19 (2007). Newman’s

lack of participation in the SOP and his refusal to admit guilt for

the crimes of which he stands convicted fall within these

5

The statutes are currently codified at 61 Pa. Cons. Stat.

Ann. §§ 6132 and 6135 (2010).

12

legitimate considerations.6

This is therefore not a case in which the Parole Board

considered factors that were foreign to the parole statute. See

Block v. Potter, 631 F.2d 233, 240 (3d Cir. 1980) (“[T]he Board

applied standards that are divorced from the policy and purpose

of parole, . . . violating [the inmate’s] right to due process of

law.”). Nor is this a case in which the Parole Board arbitrarily

denied parole based on race, religion, political beliefs, or another

impermissible factor.7 See id. at 237; Perry v. Sindermann, 408

U.S. 593, 597 (1972) (“[T]here are some reasons upon which the

government may not rely.”). Accordingly, Newman’s

procedural due process claim was properly dismissed.

D. Ex Post Facto Claim

Finally, Newman argues that the District Court erred by

dismissing his Ex Post Facto claim.8 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 I, 321 F.3d at 383 (quoting Cal.

Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995)).

“The ex post facto inquiry has two prongs: (1) whether

there was a change in the law or policy which has been given

retrospective effect, and (2) whether the offender was

6

Newman’s conduct was also a legitimate consideration

under the statute in effect when he was sentenced, which contains

similar language. See 61 P.S. § 331.19 (1988) (“[T]he board . . .

shall consider . . . the general character and history of the prisoner

. . . .”).

7

As noted above, there was no underlying First Amendment

violation because of the legitimate penological interest in having

inmates admit guilt in a treatment program for convicted sex

offenders.

8

The Ex Post Facto Clause of the Constitution states that

“[n]o State shall . . . pass any . . . ex post facto Law.” U.S. Const.

art. I, § 10, cl.1.

13

disadvantaged by the change.” Richardson v. Pa. Bd. of Prob. &

Parole, 423 F.3d 282, 287-88 (3d Cir. 2005). The Supreme

Court has noted that “[r]etroactive changes in laws governing

parole of prisoners, in some instances, may be violative of [the

Ex Post Facto Clause].” Garner v. Jones, 529 U.S. 244, 250

(2000). This is because “[a]n adverse change in one’s prospects

for release [through parole] disadvantages a prisoner just as

surely as an upward change in the minimum duration of

sentence.” Mickens-Thomas I, 321 F.3d at 392.

Newman argues that he has “adequately alleged both

[prongs]” of an Ex Post Facto claim. Appellant’s Br. at 15. The

Parole Board responds that Newman’s Ex Post Facto claim

“fundamentally fails because, by its own terms, [42 Pa. Cons.

Stat. Ann. § 9718.1] does not apply per se to [Newman’s]

convictions . . . and there is nothing in the pertinent notice of

[the Parole Board’s] decision . . . that indicates that [§ 9718.1]

was wrongly applied to his case.” Appellees’ Br. at 10. The

Parole Board further responds that it was permitted to consider

Newman’s participation in an SOP under the statute in effect

when Newman was sentenced.

i. Retrospective Effect of Change in Law or Policy

Newman alleges that there was a change in the law or

policy which has been given retrospective effect that satisfies the

first prong of the Ex Post Facto inquiry. Newman was sentenced

in 1988. Section 9718.1 was not enacted until 2000, after

Newman had served twelve years of his sentence. Newman

alleges that when he “had his interview with the parole hearing

examiner, she noted that [he] . . . ha[d] not attended the [SOP]”

and that his failure “put [him] in a ‘Catch 22’ since the parole

board required the completion of the [SOP] before parole would

be granted.” App. at 29.

The Parole Board argues that there can be no Ex Post

Facto violation because its written decision does not mention §

9718.1. That omission cannot be dispositive. The Parole Board

stated in its decision, inter alia, that Newman was denied parole

because of his “denial of the nature and circumstances of the

offense(s) committed,” his “refusal to accept responsibility,” his

14

“unacceptable compliance with prescribed institutional

programs,” his “need to participate in and complete additional

institutional programs,” and his “interview with the hearing

examiner.” App. at 39. These reasons could be construed as

veiled references to Newman’s failure to attend the SOP. Cf.

Mickens-Thomas v. Vaughn, 355 F.3d 294, 307 (3d Cir. 2004)

(“Mickens-Thomas II”) (“Even though the Board did not specify

[§ 9718.1], there is no question that the Board’s new requirement

commits . . . [an] ex post facto violation[].”). This conclusion is

bolstered by the fact that the Parole Board stated that it would

review Newman’s file at the next interview and consider, inter

alia, whether Newman “successfully completed a treatment

program for sex offender[s].” App. at 40.9

We will therefore assume arguendo that the “change in

the law” brought about by § 9718.1 was “given retrospective

effect.” Richardson, 423 F.3d at 287-88; cf. Mickens-Thomas II,

355 F.3d at 306-07 (noting that retroactive application of §

9718.1 can violate the Ex Post Facto Clause when it required the

inmate to “participate in the ‘admitter’ part of [the] sex offender

therapy program”).

ii. Disadvantage by the Change in Law or Policy

To proceed with his Ex Post Facto claim, Newman must

also meet the second Ex Post Facto prong and allege that he was

“disadvantaged by the change [in law or policy].” Richardson,

423 F.3d at 288. Newman “must show that as applied to his own

sentence the law created a significant risk of increasing his

punishment.” Garner, 529 U.S. at 255. “[A] ‘speculative and

9

Indeed, the Historical and Statutory notes acknowledge the

possibility that § 9718.1 could be applied retroactively in an

unconstitutional manner. See 2000 Pa. Legis. Serv. 2000-98

(West) (“The addition of . . . § 9718.1 shall not preclude

consideration of the factors set forth in that section in granting or

denying parole for offenses committed before the effective date of

this act, except to the extent that consideration of such factors is

precluded by the Constitution . . . .”), quoted in Historical and

Statutory Notes, 42 Pa. Cons. Stat. Ann. § 9718.1 (2007).

15

attenuated possibility of . . . increasing the measure of

punishment’ is not enough” for Newman to meet his burden.

Richardson, 423 F.3d at 288 (alteration in original) (quoting

Morales, 514 U.S. at 509). A comparable approach has been

followed by the Pennsylvania Supreme Court. See Cimaszewski

v. Bd. of Prob. & Parole, 868 A.2d 416, 427-28 (Pa. 2005).

In Richardson, we denied an evidentiary hearing where

the habeas petitioner “provided no evidence, and for that matter .

. . proffered no allegations, that a ‘significant risk’ of increased

punishment was created by the application of” new parole

guidelines. 423 F.3d at 293. We thus rejected the Ex Post Facto

claim of an inmate that he was individually disadvantaged by the

retroactive application of the new guidelines. By contrast, in

Mickens-Thomas I, we granted habeas relief to an inmate who

presented evidence that he had a significant likelihood of parole

under an old policy but was denied parole under a new law, and

that the Parole Board had paroled all other similarly situated

inmates before the change in law. 321 F.3d at 387. We have

since noted that Mickens-Thomas I “may be an exceptional case

because of the compelling nature of the evidence of prejudice,”

though “evidence of such convincing quality” is not required.

Richardson, 423 F.3d at 293.

Whereas the prejudice in Richardson and Mickens-

Thomas I arose directly from the retroactive application of the

relevant policy, in this case the potential prejudice arises from

the retroactive application of § 9718.1 in conjunction with the

prison’s admission of guilt requirement. Standing alone, §

9718.1 merely requires that convicted sexual offenders attend an

SOP in order to be eligible for parole. See 42 Pa. Cons. Stat.

Ann. § 9718.1(a). It presents no potential prejudice of a

constitutional magnitude. The statute can present a potential for

disadvantage, however, if it is applied with the admission of

guilt requirement, which carries the specter of collateral

consequences. See generally Daniel S. Medwed, The Innocent

Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at

Parole Hearings, 93 Iowa L. Rev. 491, 541 (2008).

Analyzing Newman’s claim in that context, Newman has

not alleged that he would have been paroled but for § 9718.1,

16

nor has he alleged that similarly situated inmates were paroled

before the passage of the statute.

The Supreme Court has recognized that because “most

offenders will eventually return to society, [a] paramount

objective of the corrections system is the rehabilitation of those

committed to its custody.” Pell, 417 U.S. at 823. Inasmuch as

rehabilitation is a legitimate penological objective and the

Supreme Court is satisfied that recognition of one’s

responsibility for past offenses is a “critical first step” toward

rehabilitation, McKune, 536 U.S. at 33, Newman cannot show

that the Parole Board’s alleged retroactive application of §

9718.1 “created a significant risk of increasing his

punishment,”10 Garner, 529 U.S. at 255. Accordingly, the

District Court properly dismissed his Ex Post Facto claim.11

IV.

Conclusion

10

As noted above, the Parole Board could have legitimately

considered Newman’s “general character and history” even under

the statute in effect in 1988 when he was sentenced. See 61 P.S. §

331.19 (1988).

11

Notably, the Parole Board has not taken the position that

the SOP is a form of rehabilitation and not “punishment” for Ex

Post Facto purposes. See Kansas v. Hendricks, 521 U.S. 346, 370-

71 (1997) (concluding that involuntary commitment statute “does

not impose punishment; thus, its application does not raise ex post

facto concerns”); Chambers v. Colo. Dep’t of Corr., 205 F.3d

1237, 1242 (10th Cir. 2000) (finding no Ex Post Facto violation

because inmate’s refusal to admit guilt in sexual offender treatment

program did not increase his punishment); Neal v. Shimoda, 131

F.3d 818, 827 (9th Cir. 1997) (concluding that treatment program

for sex offenders in which offenders must admit their guilt “does

not criminalize conduct legal before its enactment” for purposes of

Ex Post Facto claim (quoting Hendricks, 521 U.S. at 371)).

Accordingly, we express no view on the merits of such an

argument.

17

For the reasons set forth, we will affirm the judgment of

the District Court.

18