Mickens-Thomas v. Vaughn

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

1-14-2004

Mickens-Thomas v. Vaughn

Precedential or Non-Precedential: Precedential

Docket No. 03-3714

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PRECEDENTIAL

Filed January 14, 2004

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-3714

LOUIS MICKENS-THOMAS,

Appellant

v.

DONALD VAUGHN; PENNSYLVANIA BOARD OF

PROBATION AND PAROLE, THE PENNSYLVANIA

BOARD OF PARDONS; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

Appeal from the United States District Court

For the Eastern District of Pennsylvania

D.C. No.: 99-cv-06161

District Judge: Honorable Ronald L. Buckwalter

Argued: December 15, 2003

Before: SLOVITER, McKEE, and ROSENN, Circuit Judges.

(Filed: January 14, 2004)

Leonard N. Sosnov (Argued)

1027 Abington Avenue

Wyndmoor, PA 19038

Counsel for Appellant

2

Francis R. Filipi (Argued)

Office of Attorney General

of Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Counsel for Appellees

OPINION OF THE COURT

ROSENN, Circuit Judge.

This prolonged parole proceeding had its inception when

the Pennsylvania Board of Pardons (Pardons Board)

recommended to the Governor of Pennsylvania in 1994 that

he commute the life sentence of Louis Mickens-Thomas

(Thomas). The Governor commuted the sentence.

Thereafter, Thomas made several applications for parole,

each of which the Pennsylvania Board of Probation and

Parole (Board or Parole Board) denied. After exhausting all

administrative relief in the State, including appellate court

relief, Thomas applied to the United States District Court

for the Eastern District of Pennsylvania for a writ of habeas

corpus.

The Court found that the Board had violated the ex post

facto provision of the federal Constitution. Mickens-Thomas

v. Vaughn, 217 F. Supp. 2d 570 (E.D. Pa. 2002). The Court

granted Thomas conditional relief of habeas corpus and

remanded his parole application to the Board for further

hearing under parole laws and guidelines that existed prior

to their amendment in and after 1996. The Board appealed

to this Court and we affirmed. Mickens-Thomas v. Vaughn,

321 F.3d 374 (3d Cir.), cert. denied sub nom. Gillis v.

Hallawell, 124 S. Ct. 229 (2003)(Mickens-Thomas I).

In Mickens-Thomas I, we thoroughly reviewed the Board

proceedings and issued a mandate instructing the Board to

rectify its ex post facto violations and give Thomas “fair

consideration” under the Pennsylvania parole laws and

guidelines in existence prior to 1996. Relying on the

existing record and without conducting any further hearing,

the Board denied Thomas’s parole application for the fourth

3

time on remand from the District Court. Thomas again

sought relief in the District Court, which found continuing

violations by the Board and noncompliance with our

instructions. Nonetheless, the District Court refrained from

granting Thomas’s request for unconditional habeas corpus

relief. It summarily concluded that the Board had weighed

“all factors militating for and against parole” and that it

could not substitute its judgment for that of the Board.

Thomas timely appealed. We vacate and remand to the

District Court with instructions to direct Donald Vaughn,

Superintendent of the Pennsylvania State Correctional

Institution at Graterford, and the Parole Board to release

Thomas on parole.

I.

In an effort to put this opinion in perspective, we review

our previous decision in this case.

A. Commutation of Thomas’s Life Sentence (1995)

Thomas, now 75 years old, has been incarcerated for 39

years in a Pennsylvania penitentiary for his conviction in

1969 of the first-degree murder of twelve-year-old Edith

Connor.1 He was sentenced to life imprisonment, ineligible

for parole under Pennsylvania laws. Despite his conviction,

he has consistently maintained his innocence since his

incarceration. In 1993 Thomas first applied to the Pardons

Board for a commutation of his life sentence. In 1994 the

Pardons Board unanimously recommended the

commutation to the Governor. The Pardons Board noted

1. Thomas was arrested on October 15, 1964, and charged with the

murder of Connor on September 19, 1964. His initial trial resulted in a

conviction on first-degree murder charges. That conviction was vacated

in 1967 upon discovery that the Commonwealth’s lead witness, a

technician who matched fibers and debris from Thomas’s shoe repair

shop to those found on the girl’s body, had falsified her credentials and

perjured herself in another case. Mickens-Thomas I, at 376 n.3. He was

again convicted in 1969 for first-degree murder based entirely on the

testimony of Dr. Edward J. Burke, the then director of the Pennsylvania

Police Department Laboratory, who corroborated the discredited

technician’s testimony and vouched for the correctness of her testimony.

Id.; Commonwealth v. Thomas, 202 A.2d 352, 354 (Pa. 1972).

4

Thomas’s attainment of a college degree, his participation

in Alcoholics Anonymous, his participation in sex offender

therapy, the support of the Pennsylvania Corrections

Department, the long length of time served, the numerous

recommendations from scholars, religious and community

leaders, and his overall maturity and stability. Mickens-

Thomas I, at 377. On January 14, 1995, Governor Robert

Casey granted commutation, commuting Thomas’s life

sentence to a term of “31 years, 9 months, 6 days to life,”

making him eligible for release on parole on July 21, 1996.

B. Parole Board’s Initial Refusal to Consider Thomas’s

Parole Application (1996)

The Board initially refused to consider Thomas’s parole

application filed on July 22, 1996, one day after he became

eligible for parole, by relying on a newly enacted statute, 61

Pa. Stat. Ann. § 331.34a (West 1995), which made an

applicant in Thomas’s situation ineligible for parole without

having served a year in a pre-release center. Mickens-

Thomas I, at 380; Mickens-Thomas, 217 F. Supp. 2d at 574.

On November 26, 1996, Thomas filed a mandamus action

to challenge the Board’s refusal to consider his parole

application with the Commonwealth Court of Pennsylvania.

Mickens-Thomas v. Commonwealth, Board of Probation &

Parole, 699 A.2d 792 (Pa. Commw. Ct. 1997). The Board

conceded in that action that the new statute could not be

retroactively applied to Thomas’s application. The state

court reversed the Board’s determination of parole

ineligibility and ordered the Board to accept and consider

Thomas’s parole application within 10 days of the court’s

order. The court, however, denied Thomas’s request for an

order compelling the Board to release him on parole.

Because every effort by Thomas to obtain favorable parole

action from the Board encountered its utmost resistance, it

is reasonable to infer that Thomas’s successful appeals to

the Commonwealth Court incurred the ire of the Board.

C. Board’s First Denial of Thomas’s Parole Application

(1997)

Pursuant to the Commonwealth Court’s order, the Board

considered Thomas’s parole application on August 21,

1997, but summarily denied it. The Board denied the

5

application even though its Guidelines recommended his

release on parole and all voting Department of Corrections

institutional staff, including the prison counselor and

housing officer, recommended his release. Mickens-Thomas

I, at 380-81. In its decision, the Board urged Thomas to

secure the following before his next scheduled parole

application review in 1998: investigation of a home plan;

the availability of out-patient sex offender treatment;

participation in a program plan prescribed by Department

of Corrections officials; maintenance of a good conduct

record; a continuing institutional recommendation for

parole; and an evaluation by mental health professionals

experienced with sex offenders. Id. “The Board made these

recommendations in spite of Thomas’s apparent compliance

with all of the Board’s suggestions prior to the hearing.” Id.

D. Board’s Second Denial of Thomas’s Parole Application

(1998)

Before the Board considered Thomas’s second parole

application in March 1998, he had complied with all of the

Board’s suggested requirements stated in its 1997 decision.

He maintained the positive recommendation of corrections

authorities, who once more unanimously recommended his

release and noted that he was in compliance with treatment

programs. The prison counselor, corrections officer, and

psychologist all endorsed his release. He continued to

participate in a sex offender therapy program along with an

Alcoholics Anonymous program. Post-release support

networks were in place. Once again, the Guidelines relied

on by the Board assigned Thomas a risk-assessment score

that favored release. Mickens-Thomas I, at 381-82. Despite

his compliance with essentially all of the Board’s

conditions, the Board again summarily denied parole in

March 1998. In this second denial of Thomas’s parole

application, the Board again advised Thomas to seek

counseling and treatment, participate in prescribed

programming, maintain a clean record, and obtain

institutional recommendation for purposes of his next

scheduled parole application. Unlike the 1997 decision, the

1998 decision recommended no specific sex offender

treatment. Moreover, despite the comment that Thomas

needed “counseling and treatment,” psychiatric and

6

psychological evaluations did not contraindicate his release.

Id. at 382.

E. Board’s Third Denial of Thomas’s Parole Application

(2000)

Before the Board considered his next scheduled parole

application, Thomas filed the underlying federal habeas

action in December 1999. Shortly thereafter, the Board

denied Thomas’s parole application in March 2000 for the

third time. The Board gave as its reason the cryptic

statement that it “[had] determined that the mandates to

protect the safety of the public and to assist in the fair

administration of justice cannot be achieved through [his]

release on parole.” Mickens-Thomas I, at 382. The Board

denied parole once again, even though all voting members

of the Department of Corrections institutional staff,

including Thomas’s counselor and work supervisor,

unanimously recommended his parole. Again, he

demonstrated a continued record of good conduct in prison

and participation in sex offender therapy and all other

programs prescribed by the Department of Corrections. Id.

Despite all the recommendations and Thomas’s continuous

record of good conduct, the Board once again advised him

to maintain his Department of Corrections recommendation

as a precondition for consideration at the next scheduled

parole hearing in 2002.

New to this third denial was the Board’s classification of

Thomas on the Guidelines form as a “habitual substance

abuser.” This increased his risk score by 2 and placed him

for the first time in an unfavorable category for release.2 Id.

at 383. The Board made the classification for the first time

based on Thomas’s alcohol abuse prior to his conviction

almost 40 years ago. The Board assigned this classification

although Thomas had not abused alcohol throughout his

incarceration and had consistently participated in

Alcoholics Anonymous. Id. We questioned “why, if past

alcohol abuse over forty years ago was a relevant factor, it

had not been considered on his two prior Guidelines

2. Our earlier opinion stated that the classification of “habitual

substance abuser” increased Thomas’s risk score by 3. The number

should have been 2.

7

evaluations.” Id. Also new to this third denial was the

increased risk score of 2, instead of 1, for the category of

“victim injury” as a result of a modification of the

Guidelines. Because of these new and modified risk factors,

the Guidelines-based tally of risk scores for the first time

counseled against granting parole despite Thomas’s record

of continued good behavior and the unanimous support for

his parole from the Department of Corrections institutional

staff, including his counselor and work supervisor.

II.

A.

In our earlier opinion, we affirmed the District Court’s

grant of conditional habeas relief upon finding systematic

ex post facto violations by the Board in applying newly

amended Pennsylvania parole laws and guidelines to

Thomas’s parole applications. We noted that prior to the

amendment in 1996, the Pennsylvania parole statute

emphasized “the value of parole as a disciplinary and

corrective influence” and the society’s interest in

rehabilitating inmates. Mickens-Thomas I, at 377-78

(quoting the 55-year old parole statute, Pa. Cons. Stat.

§ 331.1 (West 1941-1996)). We also noted that after 1996,

the emphasis of Pennsylvania’s parole statute had shifted

to an overriding consideration of public safety. Id. at 377

(quoting the amended Pa. Cons. Stat. § 331.1 (West 1996)

(mandating that the parole “board shall first and foremost

seek to protect the safety of the public”)).

We further noted that the Board’s Guidelines and parole

policies had changed correspondingly with the amended

parole statute. Before 1996, the Board’s internal policies

stated that the Board must weigh “numerous factors”

balancing the inmate’s rehabilitation and liberty interest

with the interest of public safety. Id. at 378. Specifically, we

noted that the Board’s 1989 Manual of Operations and

Procedures recognized that “[p]robation and parole services

must consider that offenders can change their behavior

patterns when desirous, capable, and given the

opportunity, help, dignity, and respect they deserve as

8

human beings.” Id. (emphasis added). We also noted that in

the 1990 Parole Decision Making Guidelines, the Board

stated that “[a]n eligibility of parole expresses a philosophy

of presumed release unless information reviewed

demonstrates by its preponderance that the public safety

interests of the community outweigh the liberty interests of

the inmate.” Id. (emphasis added).

In response to the amended parole statute in 1996, we

saw that the Board substantially revised its guidelines by

emphasizing that “the foremost concern for the Board must

be the protection of the public.” Id. at 380 (quoting the

Board’s Fiscal Years 1995-1997 Biennial Report). On the

basis of undisputed Board documentary evidence, we

concluded that in the wake of the 1996 amendment to the

state parole statute, the Board had altered the weight it

applied to public safety considerations in making parole

decisions:

The record is convincing that after 1996, the Board

applied to the public safety interest far greater weight.

The evidence here demonstrates that since 1996, the

Board has given special weight to the risk to public

safety. Pre-1996, a prisoner could be denied parole

because of public safety concerns only if those

concerns together with other relevant factors

outweighed, by a preponderance, the liberty interests of

the inmate. The 1996 policy change placed first and

foremost the public safety to the disadvantage of the

remaining liberty interest of the prisoner.

Id. at 385.

B.

We held in our earlier opinion that the Board had

violated the constitutional prohibition against ex post facto

laws in its treatment of Thomas’s first three parole

applications. The Board had thrice denied Thomas’s

application even though he had unanimous support from

the corrections officers, consistently maintained a record of

good behavior, participated in sex therapy and alcohol

abuse prevention programs, and complied with all of the

Board’s requirements. The Board had urged Thomas to

9

undergo a psychiatric examination when it denied his first

application in 1997 despite the existence of pre-

commutation 1993 psychiatric reports supporting Thomas’s

parole and the existence of other psychological evaluations

in his file that did not contraindicate release.3 Mickens-

Thomas I, at 381. Additionally, although a 1996

psychological evaluation of Thomas showed an “antisocial

personality” and “possible sexual preoccupation and

psychosexual immaturity,” the Board was not deeply

concerned with that report in its decision-making

worksheet. Id. Significantly, the Board’s 1998 denial

decision, unlike its 1997 decision, did not recommend any

specific sex offender treatment. None of the existing

psychiatric and psychological evaluations, including the

1996 evaluation, contraindicated his release. Id. A 1998

psychological evaluation determined Thomas to be an

“average risk candidate” and the Department of Corrections

psychologist noted “No Psychological Contraindications” for

release in the 1998 Vote Sheet. Id.

We observed that following Thomas’s initiation of the

underlying federal habeas action in December 1999, the

Board’s method of evaluating Thomas’s parole application

took a significant change in March 2000. For the first time,

the Board classified Thomas as a “habitual substance

abuser” for his alcohol abuse 40 years ago. Id. at 383. For

the first time, the risk score of the category of “Victim

Injury” was increased from 1 to 2 points. Id.

On the basis of the above undisputed evidence, we held

in Mickens-Thomas I that the Board had committed an ex

post facto violation by retroactively applying the amended

parole laws and guidelines to Thomas’s applications. We

observed that “there [was] significant evidence that [the

Board] acted upon policies that were established after [his]

crime and conviction.” Id. at 387. Although the Board was

entitled to discretionary judgment in making parole

determinations, the exercise of that judgment was

3. A 1993 report called Thomas “a good candidate for commutation from

the psychological perspective,” and another 1993 psychiatric report

added that Thomas “[had] developed significantly during his years of

imprisonment.” Mickens-Thomas I, at 382.

10

circumscribed by constitutionally permissible perameters.

There was no question that Thomas was entitled to “have

the Board give genuine consideration and due regard to the

factors prescribed by the Board’s pre-1996 policies.” Id.

We concluded that “it [became] evident that, although the

risk of potential danger to the public [had] always been a

factor, it became the controlling feature of the Board’s

decision after 1996.” Id. at 388. “The Board defaulted

[therefore] in its duty to consider factors other than the

underlying offense and risk to public safety; it [had] failed

to address any of the factors favoring release.” Id.

We described the statistical evidence as “staggering,”

noting that in 266 simultaneous instances of commuted life

sentences, Thomas was the only one not granted parole

within the first two attempts. Id. at 385, 387. It “strongly

confirm[ed] the change in policy [since] 1996.” Id. at 385.

Historically, “the gubernatorial grant of commutation of

sentence had such significance that the Board agreed to

parole every commutee on his or her first or second

application.” Id. at 385. We determined that “[t]he Thomas

application [was] distinguished from [those] 266 cases only

by the intervening policy directive of 1996, emphasizing

public safety.” Id. We accordingly affirmed the District

Court’s order remanding Thomas’s parole application to the

Board for review under the pre-1996 parole standards. Id.

at 393.

In our remand mandate, we provided the Board with

guidelines to rectify its constitutional violations. We

informed it that

prior to 1996, the Board’s concern for potential risks to

public safety could not be the sole or dominant basis

for parole denial under the existing Guidelines.

Considerations of public safety were already

incorporated into its Guidelines analysis; the Board

had to point to “unique” factors as a basis for its

rejection of the Guidelines. Moreover, the Board had to

weigh all factors, militating for and against parole, and

make its decision on the totality of the factors pertinent

to parole, and give appropriate weight to the interests

of the inmate. Heavy foot application on one factor

11

could not have been the basis of granting or rejecting

parole.

Id. at 386. We advised the Board that it could not shield

itself from constitutional violations by relying on the

“discretionary component” of its parole review. Id. at 386-

87. We rejected “the Board’s reasoning [that its]

determination, founded on newly discovered experience,

could, by virtue of the Board’s exalted discretion, forever

deny a prisoner’s preexisting right to parole consideration.”

Id. at 387. “Although some discretion might still exist

within the pre-1996 parameters, 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 of the realm of the legitimate exercise

of discretion under the pre-1996 policies.” Id.

C.

In our earlier opinion, we specifically instructed the

Board to rectify the unconstitutional manner in which it

used certain historical factors retroactively to achieve a

predetermined result of parole denial.

1. Prior history of alcohol abuse

We observed that Thomas had a record of alcohol abuse,

but not drug abuse, prior to his conviction in 1964 and

that he had consistently attended Alcoholics Anonymous

while in prison. Mickens-Thomas I, at 383, 390. The Board

did not assign any risk score for his prior history of alcohol

abuse in its 1997 and 1998 decisions. Id. at 383. For the

first time in its 2000 decision, the Board assigned a risk

score of 2 for Thomas’s alcohol abuse almost 40 years ago

“despite no changes in his situation.” Id. We questioned

“why, if past alcohol abuse over forty years ago was a

relevant factor, it had not been considered on his two prior

Guidelines evaluations.” Id. We decided that the Board’s

use of Thomas’s prior history of alcohol abuse was a post

hoc rationalization “designed to achieve” a denial of

Thomas’s parole under the new regime of parole laws and

guidelines. Id. at 390. “There is no evidence that alcohol

12

abuse should, suddenly, as of the 2000 report, be given

such significance: The Guidelines recommendation in 2000

is not worthy of consideration because it appears to have

been deliberately designed to achieve a non-parole

decision.” Id.

2. Non-admission of guilt and non-participation in the

“admitter” part of sex offender therapy program that

requires admission of guilt

Although the Board was concerned in the past by

Thomas’s participation in the “deniers” group of the sex

therapy program, the Board’s prior decisions, including the

2000 one, made no specific mention of the “admitter-

denier” distinction and the Board’s internal notes regarded

Thomas’s consistent denial of guilt in a “neutral” way. Id. at

381-82, 381 n.12. Specifically, we noted that the Board’s

internal files accompanying its 1997 and 2000 decisions

merely commented, in a neutral way, that Thomas

participated only in “denier” sex therapy and denied guilt

for his crime without further comment or discussion of how

these factors may have outweighed others favoring release.

Id. at 389. “Significantly, the Board in 1997 and 1998 failed

to mention lack of responsibility (or any other factor) in the

section of the Guidelines worksheet where specific space

[was] allotted to provide unique reasons for departing from

a Guidelines recommendation.” Id. “Moreover, the

recommendation that Thomas receive [the “admitter” part

of] sex offender therapy, which appeared on the 1997

report, did not appear on the 1998 Decision or worksheet.

Then, inexplicably, the recommendation for sex offender

therapy reappeared on Thomas’s 2000 parole-refusal

report.” Id.

Only when the Board was forced to defend Thomas’s

charges of constitutional violations in the underlying federal

habeas action did it assert, for the first time in its earlier

brief to us, that Thomas’s nonadmission of guilt and

consequent failure to complete the part of the sex offender

therapy program that required admission of guilt counseled

against his release. Id. We observed that there was no

evidence that the Board had ever properly communicated to

Thomas its “renewed concern” over his participation only in

the “denier” part of sexual offense therapy “given that the

13

reasons for denial in the Board Decision [were] vague and

boilerplate.” Id. We determined that the Board’s post hoc or

retrospective use of the factors of Thomas’s nonadmission

of guilt and his nonparticipation in the “admitter” part of

sex offender therapy to justify its parole denial “cast[ ] still

more doubt on the genuineness of the [Board’s] concern.”

Id.

3. “Instant offense” and “victim injury”

We held that the Board committed ex post facto violations

by relying on the factors of “instant offense,” that is, the

rape and murder charges of which Thomas was convicted,

and “victim injury” to the exclusion of consideration of

Thomas’s rehabilitation interest. Instead of using the

balancing approach required under the pre-1996 regime of

parole laws and guidelines, the Board had relied “primarily

[on] the nature of the original offense” in denying Thomas’s

applications “despite many other significant factors favoring

parole.” Id. at 388. “Given its indifference to Thomas’s

efforts to improve his parole candidacy, and its repeated

reliance on Thomas’s ‘instant offense’ and his potential for

future ‘assaultive behavior,’ despite the Guidelines’ finding

that Thomas was not a recidivism risk, the Board appeared

to rely exclusively on the nature of the underlying offense

and the potential danger to the public if Thomas were

released.” Id. at 388-89.

We found further ex post facto violations in the Board’s

application of enhanced risk penalty for the factor of “victim

injury” to Thomas’s applications. “The new Guidelines,

implemented between 1998 and 2000, placed more weight

on ‘Victim Injury.’ ” Id. at 386 (“The 2000 Board Decision

denying Thomas’s parole noted that its action was

consistent with the Board’s ‘mandate’ to protect the public.

This language did not appear on earlier Board decisions

and reflects its new parole policy.”) (emphasis in original).

We were convinced that the Board’s “new valuation” of the

category of “victim injury,” evidenced by the assignment of

2 risk points to Thomas’s 2000 application, instead of the

1 point assigned to his first two applications for the same

category, “further evidence[d] the advent of new policies and

emphasis on public policy on the part of the Board.” Id. at

390 n.16. We decided that “[t]he Board [had] defaulted in

14

its duty to consider factors other than the underlying

offense and risk to public safety” and “[had] failed to

address any of the factors favoring release.” Id. at 388.

D.

Our mandate to the Board to rectify its ex post facto

violations could not be clearer in the following paragraphs

of our opinion:

The pre-1996 policies place significant weight on

factors relating to an inmate’s potential to adapt to life

on the outside, and on the recommendations of the

institutional staff. The pre-1996 policies suggest that

no single factor should be controlling in a decision to

deny parole to an applicant. Moreover, the pre-1996

Decision Making Guidelines were given significant,

although not dispositive weight. A departure from the

Guidelines required a recitation of unique factors,

outweighing those in the Guidelines analysis. The

Board Decisions on each of Thomas’s parole hearings

rely heavily on “high assaultive behavior potential,”

which relates primarily to the nature of the original

offense, despite many other significant factors favoring

parole.

Id. at 388 (emphasis in original).

We cautioned the Board that, on remand,

The Board will not be defensive, but instead will fairly

consider Thomas’s application in the light of our

observations and Ex Post Facto prohibitions. If the

Guidelines recommend release, the Board should fairly

consider the weight of this recommendation. A decision

contrary to a Guidelines recommendation must be

buttressed by unique factors which outweigh the

Guidelines endorsement. Moreover, release on parole is

a Board policy presumption, and parole should be

granted unless countervailing negative factors

affirmatively outweigh reasons supporting release.

Id. at 393 (emphasis added).

15

III.

A.

None of the parties dispute that the District Court had

subject matter jurisdiction over the underlying habeas

action under 28 U.S.C. §§ 1331, 2241 and 2254(a), and

that we have appellate jurisdiction under 28 U.S.C. §§ 1291

and 2253. However, on this appeal, the Board, citing 28

U.S.C. § 2253(c)(1) and Coady v. Vaughn, 251 F.3d 480,

486 (3d Cir. 2001), argues that we should dismiss

Thomas’s appeal because he has not obtained a certificate

of appealability from either the District Court or this Court.4

The Board’s argument has no merit; on the same page of

our Coady opinion relied on by the Board, we construed a

timely filed notice of appeal as a request for a certificate of

appealability pursuant to 28 U.S.C. § 2253(c)(1) and Fed. R.

App. Proc. 22(b)(2).5 Coady, at 486. It is not disputed that

Thomas filed a timely notice of appeal from the District

Court’s latest decision, and we construe his timely filed

notice of appeal as a request for a certificate of

appealability. Of utmost importance, this Court has

continuing jurisdiction over this appeal to determine

whether the Board has complied with the District Court’s

remand order and our remand mandate. See Phifer v.

Warden, 53 F.3d 859, 861 (7th Cir. 1995) (“[A] district court

4. 28 U.S.C. § 2253(c)(1) (1996) provides:

(c)(1) Unless a circuit justice or judge issues a certificate of

appealability, an appeal may not be taken to the court of appeals

from—

(A) the final order in a habeas corpus proceeding in which the

detention complained of arises out of process issued by a State

court; or

(B) the final order in a proceeding under section 2255.

5. Federal Rules of Appellate Procedure 22(b)(2) (1998) provides:

A request addressed to the court of appeals may be considered by

a circuit judge or judges, as the court prescribes. If no express

request for a certificate is filed, the notice of appeal constitutes a

request addressed to the judges of the court of appeals.

16

retains jurisdiction to determine whether a party has

complied with the terms of a conditional order.”).

Where the District Court conducted no evidentiary

hearing and made no new findings of fact as to Thomas’s

motion to enforce the Court’s previous grant of conditional

habeas relief, we review de novo the District Court’s legal

conclusion that the Board has essentially complied with

our mandate to the Board to rectify its constitutional

violations. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.

2000) (in a federal habeas corpus proceeding, the Court of

Appeals exercises plenary review over the District Court’s

legal conclusions); Lambert v. Blackwell, 134 F.3d 506, 512

(3d Cir. 1997); Barden v. Keohane, 921 F.2d 476, 479 (3d

Cir. 1990) (the Court of Appeals exercises plenary review

over the District Court’s legal conclusions which formed the

basis of the Court’s denial of the habeas corpus petition).

B.

Following the issuance of our mandate in Mickens-

Thomas I, the Board did not conduct any hearing or call

any witness. It did not consider any “unique factors” that

were not already incorporated in its prior-1996 Guidelines.

Instead of balancing factors favoring parole with unique

factors that may weigh against parole, the Board

considered the same old factors in the same manner found

by us to be violative of the ex post facto prohibition in our

earlier opinion.

1. Prior history of alcohol abuse

The Board defied our instruction to discontinue its

pretextual use of Thomas’s alcohol abuse 40 years ago and

once again relied on that factor as a post hoc defense of its

unconstitutional method of reviewing Thomas’s parole

applications.6 The Board ignored our inquiry pertaining to

6. The Board wrote:

Your history of substance abuse (alcohol) which has led to police

arrests and has resulted in several instances of assaultive sexual

behavior directed towards women and children. The record also

reflects that you had been drinking on the morning and the night

before you murdered Edith Connor.

Board’s Decision, III (1), at 2, A30.

17

the relevance of this 40-year-old factor. The Board failed to

consider, as we expressly required it to do, whether Thomas

should be deemed to have been rehabilitated with his

present history of sobriety for 40 years in prison, his

consistent participation in Alcoholics Anonymous, and his

compliance with the prison’s alcohol abuse prevention

programs.

The Board has in fact foreclosed any possibility of

rehabilitation for Thomas no matter how successful he has

been in not abusing alcohol or how often he has

participated in alcohol abuse prevention programs. The

following paragraph from the latest Board decision is a

telling example of its continuing unconstitutional practice:

Your peacetime interaction with able-bodied male

prisoners while sober (since alcohol is not available in

prison) is not a reliable predictor of your behavior

toward defenseless women and children, your likely

victims if you are released and able to consume

alcohol.

Board’s Decision, IV (2), at 5, A30. The Board obviously has

presumed that having abused alcohol prior to his murder

conviction, Thomas will always abuse alcohol regardless of

his successful participation in the prison’s alcohol abuse

prevention programs. That presumption would preclude

any possibility of rehabilitation and doom any prospect of

parole. As we noted earlier, the Board was required to

consider an inmate’s rehabilitation under the pre-1996

regime of parole laws and guidelines. We mandated that

constitutional requirements compelled the Board to duly

consider pre-1996 factors showing Thomas’s rehabilitation.

As Thomas shows on appeal, the Board added the

category of prior history of “substance abuse” to its

Guidelines around 1990 to counter illicit drug abuse, rather

than alcohol abuse. See Board’s 1990 Parole Decision

Making Guidelines, A247 (the prior record of substance

abuse history was “intended to represent a clear sanction to

those who are prone to crime because of either drug

dependency or a chosen life of crime as indicated by their

habitual behavior” (emphasis added); Board’s 1991 Special

Report to Pennsylvania House Judiciary Committee, A258

18

(“Although convictions for drug law violations were skewed

toward the low end of the risk of recidivism classification,

illegal drug use is an important underlying determinant in

the etiology of crime.”) (emphasis added), A277 (“Substance

abuse history was added as a weighted parole consideration

factor because of the increasing drug problem.”) (emphasis

added).

We believe that the Board’s sudden reliance on Thomas’s

alcohol abuse 40 years ago and its equation of “substance

abuse” with alcohol abuse since 2000 was designed to

negate Thomas’s parole. The Board’s reliance on that factor

was not only unjustifiable under the Board’s guidelines and

policies, but also unconstitutional because the Board

retroactively applied a factor that it had suddenly found to

be significant based on the amended parole statute and

new policies.

The following paragraph from the Board’s latest decision

reveals its flagrant disregard of our prior decision and

mandate:

Note: The 1990 Guidelines mandate that such

instances of alcohol abuse be added into the Guideline

score and do not allow exceptions based on the length

of incarceration or upon participation in institutional

alcohol abuse programs. Evidence in the file clearly

demonstrates your history of alcohol abuse; and, at

your recent interview, you admitted abusing alcohol

prior to conviction. The omissions of this fact in any

previously-computed 1990 Guideline Form was therefore

erroneous.

Board’s Notice at 2, A30 (emphasis added); see also Board’s

Br. at 16.

The Board offers no evidence to support its assertions;

undisputed evidence shows the opposite. The Board plays

its card of discretionary power cynically and conveniently to

suit different purposes. Before, the Board represented that

it had absolute, unreviewable discretionary power in parole

decision-making in order to resist federal habeas review.

Now, it claims that it has no discretion in order to defy our

mandate to rectify constitutional violations. If the Board

had indeed had no discretion, Thomas would have been

19

paroled in 1997 or 1998 since the tally of the scores on the

Board’s Guidelines forms militated in favor of parole; on

both occasions the Board exercised its discretionary power

to deviate from the Guidelines and the unanimous

recommendation of the corrections staff. The Board

summarily denied Thomas’s application despite his record

of continuous good conduct, compliance with the prison’s

rehabilitation programs, and educational accomplishments

during his 40-year-long incarceration.

2. Non-admission of guilt

The Board also defies our instruction to discontinue its

manipulation of the hitherto insignificant factors of

Thomas’s non-admission of guilt and his participation only

in the “denier” part of sex offender therapy program. We

noted earlier that the Board had viewed these factors

neutrally, even in the year 2000, and that it asserted those

factors as a post hoc defense of its practice for the first time

in its previous brief to us. The Board now has not only

defied our instruction to disregard those factors, it has also

gone two steps further in a continued course of

constitutional violations. First, to manipulate a result of

denial, the Board for the first time expressly equates a

claim of innocence with remorselessness and refusal to

accept responsibility, which the Board equates in turn with

failure of rehabilitation and likelihood to commit new

crimes if paroled. This position is flatly contrary to the

Board’s position in the original habeas corpus hearing

when its counsel stated that Thomas had completed all

sexual programs available to him.7

7. The Board’s assertion is belied by its counsel’s statement in the

original habeas hearing before the District Court held on December 18,

2001. Thomas’s attorney, Sosnov, represented to the Court that the

parties had stipulated that “Mr. Thomas, both before his parole

considerations in 1997 and 1998 and since, has taken and completed all

[the sexual offender treatment] programs available to him through the

J.J. Peters Institute.” A712. The Board’s attorney, Guido, represented to

the court immediately thereafter: “That’s correct. . . . [He has taken and

completed] all programs which are available to him through the Joseph

J. Peters Institute.” A712. In view of its previous stipulation, the Board’s

assertion as to Thomas’s failure to complete the sexual offender

prevention program must be disregarded.

20

Second, as asserted by Thomas, the Board has

committed a new and glaring instance of ex post facto

violation by applying a newly enacted statute retroactively

to Thomas.8 The Board’s recent requirement that Thomas

participate in the “admitter” part of sex offender therapy

program to qualify for parole is in essence a retroactive

application of 42 Pa. Stat. Ann. § 9718.1, enacted in

December 2000.9 That statute provides that a sexual

8. The Board wrote in part:

Because you have refused to accept responsibility for your crimes,

you have completed only the first phase of a required three-phase

sexual offender treatment program. For this reason the Board has

concluded (1) that factors of risk in your case (as measured in the

Guideline score) have not been sufficiently reduced by your

inadequate participation in such institutional treatment and (2) that

the quality of your participation does not favorably correspond with

the level of risk involved. The level of risk in your case involves the

danger of sexual assault and murder to women and children. The

quality of your participation has been poor, because it has been

remorseless and without empathy for your victim and her family.

You have consistently refused to accept responsibility for your

crimes and have shown no remorse. The Board believes that

acceptance of guilt is the first and most necessary step toward

rehabilitation. . . . You have not taken this first step. Nor does the

Board believe that you are in any sense justified in denying guilt,

since you were convicted by jury of your peers and your conviction

as upheld by the Supreme Court of the Commonwealth of

Pennsylvania. . . .

Your refusal to accept responsibility for your crimes has prevented

you from completing the sexual offender therapy so essential in your

case.

Board’s Notice, IV, at 4, A3; V (4-5), A33 (emphasis added).

9. 42 Pa. Stat. Ann. § 9718.1 (West 2003), provides in relevant part:

(a) General rule.—A person, including an offender designated as a

“sexually violent predator” as defined in section 9792 (relating to

definitions), shall attend and participate in a Department of

Corrections program of counseling or therapy designed for

incarcerated sex offenders if the person is incarcerated in a State

institution for any of the following provisions under 18 Pa. C.S.

(relating to crimes and offenses): (1) Any of the offenses enumerated

21

offender involving a minor “shall not be eligible for parole

unless the offender has . . . participated in [the sex offender

therapy program prescribed by the Department of

Corrections].”10 Even though the Board did not specify the

statute in making the above requirement, there is no

question that the Board’s new requirement commits

another instance of a continuous course of ex post facto

violations.

3. “Instant offense” and “victim injury”

The Board also defies our instruction not to use the

factors of “instant offense” and “victim injury” to exclude

consideration of factors favoring Thomas’s parole. The

Board’s latest decision repeated what we described earlier

as its “indifference to Thomas’s efforts to improve his parole

candidacy” by repeatedly relying on those factors. We

required the Board to balance factors favoring Thomas’s

parole with any “unique factors” that may weigh against

in Chapter 31 (relating to sexual offenses) if the offense involved a

minor under 18 years of age. . . .

(b) Eligibility for parole.—For an offender required to participate in

the program under subsection (a), all of the following apply:

(1) The offender shall not be eligible for parole unless the

offender has:

(i) served the minimum term of imprisonment;

(ii) participated in the program under subsection (a); and

(iii) agreed to comply with any special conditions of parole

imposed for therapy or counseling for sex offenders, including

sexually violent predators. . . .

Section 3 of Act No. 2000-98 (December 20, 2000), P.L. 721, No. 98,

provides in relevant part:

This act shall apply as follows:

(1) [T]he addition of 42 Pa.C.S. § 9718.1 shall apply to offenses

committed on or after the effective date of this act.

10. It is not disputed that one part of the prescribed J.J. Peters Institute

program required admission of guilt and that Thomas did not participate

in that part.

22

parole, factors that were not already incorporated into the

Guidelines forms. The Board failed to comply with our

instruction and again “defaulted in its duty to consider

factors other than the underlying offense and risk to public

safety.” Mickens-Thomas I, at 388. Defying our instruction,

the Board used the above two factors in the same old

manner to foreclose any consideration of factors showing

Thomas’s rehabilitation and accomplishments. The Board

wrote:

There are no meaningful circumstances countervailing

the Guideline recommendation to refuse parole

. . . .

Your educational achievement and lack of assaultive

behavior while in prison do not alter this conclusion,

for the following reasons:

(1) Your assaultive sexual behavior, not your lack of

education, has caused your present predicament.

Sexual criminality and higher education are not

mutually exclusive, since your sexual problems have

not been adequately addressed, you remain, in the

Board’s opinion, a dangerous sexual offender, whatever

your education.

Board’s Notice, IV, at 4-5, A31-32.

In the same manner of its post hoc rationalization of

Thomas’s prior history of alcohol abuse, the Board uses the

historical factors of “instant offense” and “victim injury” to

foreclose any possibility of parole, in an apparent effort to

circumvent the constitutional ex post facto prohibitions.

The Board’s use of the historical factors for this purpose is

also tantamount to nullifying Thomas’s commutation and

resentencing him to life imprisonment without eligibility of

parole in violation of the Pennsylvania pre-1996 law and

parole guidelines.

4. Other factors not previously relied upon

The Board’s latest decision went further in relying on

historical information not previously relied upon in its effort

to circumvent our mandate to rectify its ex post facto

violations.11 The Board had never used Thomas’s 58-year-

11. The Board wrote:

Other factors (not counted in 1990 Guideline score) which indicate

23

old juvenile offense and other dismissed charges, arrests,

and uncharged accusations in its previous decisions. The

Board also relies now on hearsay statements from Thomas’s

former wife for the first time to justify its decision. Those

new factors, never used by the Board before, are not worthy

of consideration because they appear to have been designed

to achieve a non-parole decision and also obscure ex post

facto prohibitions. Mickens-Thomas I, at 390.

C.

In our earlier opinion, we did not have occasion to

consider whether the history of the Board’s adjudication of

Thomas’s parole applications over the years had shown a

pattern of unconstitutional retaliation or vindictiveness

against Thomas for his initiation of state and federal legal

actions challenging the Board’s actions. A renewed look at

the Board’s pattern of adjudicating Thomas’s parole

applications has raised sufficient inferences of retaliation or

vindictiveness.

A review of the history of the parole application shows

that after each time Thomas brought an action to challenge

that parole should be denied:

(1) You have a history of multiple prior assault arrests, including

the following:

A. In 1945 you were arrested for rape (juvenile).

B. In 1959 you were charged with choking a pregnant woman

with a scarf, until she passed out.

C. In 1959 you were also accused of attacking a 14-year old

babysitter, with your pants removed and she fighting to get free.

D. In 1961 you were accused of assault with a black jack.

(2) Statements from your former wife indicate that when you drank

you always wanted to engage in sodomy and would beat and choke

her if she refused to comply.

(3) Your anger and resentment toward women was evident in your

recent interview.

Board’s Notice, V, at 5-6, A32-33 (emphasis added).

24

the Board’s ex post facto violations, the Board resorted to

factors not previously considered relevant or significant in

order to reach parole denial. As we noted earlier, the Board

initially refused to consider Thomas’s parole application

when he became eligible for parole in July 1996 because of

the Board’s determination that a newly enacted statute

required an otherwise eligible parole applicant to serve a

year in a pre-release center before applying for parole. After

Thomas successfully brought the state mandamus action in

November 1996 for the ex post facto violation, the Board

summarily denied his first parole application despite his

record of consistent good behavior, substantial

accomplishments, unanimous support from the corrections

staff, the weight of gubernatorial commutation, the Board

of Pardons’ commutation recommendation to the Governor,

and the Board’s own Guidelines-based scores militating in

favor of parole.

The Board’s initial refusal to consider Thomas’s parole

application cost him one full year before his application was

heard. The Board summarily denied Thomas’s second

parole application in 1998, after Thomas filed a state

habeas petition with the Pennsylvania Supreme Court, even

though he had satisfied every precondition suggested by the

Board, maintained a continued record of good behavior,

unanimous support, and the Guidelines’ score favoring

parole. Soon after Thomas brought the underlying federal

habeas action in December 1999, the Board denied

Thomas’s third application in March 2000 by suddenly

relying on Thomas’s alcohol abuse 40 years ago to tilt the

Guidelines-based risk scores against parole. At that point,

the tally of risk scores disfavored parole for the first time.

In appealing from the District Court’s earlier grant of

conditional habeas relief, the Board suddenly resorted to

Thomas’s non-admission of guilt and non-participation in

the “admitter” part of sex offender therapy programs to

justify its unconstitutional conduct. Finally, on this appeal,

the Board suddenly used the historical information of

Thomas’s alleged juvenile misconduct 58 years ago prior to

his incarceration, and hearsay statements from Thomas’s

former wife ostensibly to show “compliance” with our earlier

instruction to it to consider “unique factors” that may weigh

against parole.

25

It is not disputed that the Board had been aware of those

newly added factors and information. However, it had not

deemed them to be relevant or significant before each

denial of parole or appearance before the District Court or

this Court. The sudden, post hoc and retrospective use of

those factors in response to Thomas’s challenges in the

state and federal courts raises a sufficient inference of

unconstitutional retaliation or vindictiveness. In Marshall v.

Lansing, 839 F.2d 933, 947-48 (3d Cir. 1988), we held that

there was a sufficient “inference of retaliation” when the

United States Parole Commission imposed an

administrative punishment on a petitioner after he

successfully appealed the Commission’s determination of

his offense severity index for an earlier marijuana usage

that the Commission had reviewed but imposed no

punishment. We observed that the Commission did not

choose to exercise its discretion to penalize the petitioner

for his marijuana usage until after he had challenged its

determination in court. Id. We held that

the Commission’s unexplained decision to add two

months to [the petitioner’s] term of incarceration

because of conduct that occurred before the time of the

original sentencing proceeding . . . which it ignored

until its parole release determination was judicially put

into question, creates a sufficient appearance of

vindictiveness to justify voiding the penalty.

Id. at 948 (citation omitted) (emphasis in original).

We similarly conclude here that the Board’s use of known

but hitherto uncounted historical factors after Thomas

brought state and federal actions has created “a sufficient

appearance of vindictiveness to justify voiding” any

consideration of those newly added factors. Those factors

are not only unworthy of consideration, but also raise a

“presumption of vindictiveness” on the part of the Board.

See id. at 947. Nothing in the record or the Board’s briefs

rebuts the presumption of vindictiveness; the Board’s thinly

veiled excuse of error for its non-consideration of Thomas’s

prior history of alcohol abuse reinforces the presumption of

vindictiveness. Furthermore, “[t]he combination of the

[Board’s] failure to comply with [our instructions] and the

appearance of vindictiveness in imposing a penalty for [the]

26

previously-ignored [prior history of alcohol abuse] only after

a successful appeal . . . raises an inference of bad faith on

the part of the [Board].” Id. at 950. The Board’s thinly veiled

excuse of error leaves us with no doubt of its bad faith and

willfulness in its defiance of our mandate and instructions.

D.

From the very first time we heard the initial appeal by the

Board to this Court, we have carefully refrained from

intruding on the Board’s discretionary powers. We stated

that we were “exceedingly reluctant to usurp the Board’s

functions” and expressed the hope that on remand “the

Board will not be defensive, but instead will fairly consider

Thomas’s application in the light of our observations and ex

post facto prohibitions.” Mickens-Thomas I, at 393. Our

hopes, however, were illusory. We expected Board

sensitivity to respect constitutional concerns. The

combination of willful noncompliance, bad faith, and a

sufficient inference of retaliation or vindictiveness on the

part of the Board convinces us that it would be futile to

further remand Thomas’s parole application to the Board

for a fair disposition under the pre-1996 regime of parole

laws and guidelines.

We, therefore, conclude that the appropriate remedy

under these circumstances is to grant Thomas

unconditional habeas corpus relief. See Bridge v. United

States Parole Commission, 981 F.2d 97, 105 (3d Cir. 1992)

(quoting Billiteri v. United States Board of Parole, 541 F.2d

938, 944 (2d Cir. 1976); Billiteri, at 944 (“The only remedy

which the court can give is to order the Board to correct the

abuses or wrongful conduct within a fixed period of time,

after which, in the case of non-compliance, the court can

grant the writ of habeas corpus and order the prisoner

discharged from custody.”); Billiteri, at 946 (“If the case was

before the court on a petition for habeas corpus, it may

order compliance within a reasonable period, failing which

it may order the petitioner discharged from custody.”);

Thompson v. Armontrout, 808 F.2d at 28, 31-32 (8th Cir.

1986), cert. denied, 481 U.S. 1059 (1987) (affirming the

federal District Court’s grant of unconditional habeas

corpus relief to a Missouri state inmate upon finding of

27

vindictiveness on the part of the state parole board in

denying the inmate’s parole application following the

inmate’s successful challenge of his prior conviction).

IV.

The judgment of the District Court denying Thomas’s

motion for unconditional habeas relief is hereby vacated.

The case is remanded to the District Court with directions

to order Donald Vaughn, Superintendent of the

Pennsylvania State Correctional Institution at Graterford,

and the Parole Board to release Thomas on parole within

seven (7) days of their receipt of the District Court’s order.

The mandate of the Court shall issue forthwith.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit