Appendix — Gillis, Superintendent, State Correctional Institution at Coal Township v. Hollawell and Pennsylvania Board of Probation and Parole v. Mickens-Thomas

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 99-3996

JOHN HOLLAWELL,

Appellant,

v.

FRANK D. GILLIS, Superintendent SCI Coal Township,

WILLIAM WARD, ALLEN CASTOR,

DAHLE BINGAMAN, SEAN RYAN, NICHOLAS MULLER,

GARY LUCHT, MICHAEL WEBSTER, JOHN

ENGLE, DAVID WITHERS, JOHN DOE(S), PBPP

MEMBERS/EMPLOYEES, ATTORNEY GENERAL OF

THE COMMONWEALTH OF PENNSYLVANIA,

PENNSYLVANIA BOARD OF PROBATION AND PAROLE

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

(D.C. Civil No. 4:CV-99-1502)

District Judge: The Honorable Malcolm Muir

No. 01-1063

JOHN HOLLAWELL,

. Appellant

v.

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FRANK GILLIS, Superintendent, WILLIAM WARD,

Pennsylvania Board of Probation and Parole Chairman

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

(D.C. Civil No. 4:CV-00- 1222)

District Judge: The Honorable Malcolm Muir

ARGUED JANUARY 23, 2003

BEFORE NYGAARD, AMBRO AND LOURIE, Circuit

Judges ;

(Filed: April 23, 2003)

Dennis E. Boyle (Argued)

Nauman, Smith, Shissler & Hall, LLP

200 N. 3rd Street, 18th Floor

Harrisburg, PA 17108-0804

Counsel for Appellant

John G. Knorr, III (Argued)

Chief Deputy Attorney General

Calvin R. Koons

Senior Deputy Attorney General

Francis R. Filipi

Senior Deputy Attorney General

Seth A. Mendelsohn

Deputy Attorney General

“Honorable Alan D. Lourie, Circuit Judge for the United

States Court of Appeals for the Federal Circuit, sitting by

designation.

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Office of Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

Counsel for Appellees

OPINION OF THE COURT

LOURIE, Circuit Judge.

John Hollawell appeals from the decision of the

United States District Court for the Middle District of

Pennsylvania denying his petition for a writ of habeas

corpus. Hollawell v. Gillis, No. 4:CV-99-1502, slip op. at

9 (M.D.Pa. Nov. 30, 1999) (“Hollawell I” ). Because the

petition was untimely, we vacate the District Court’s

order and remand with instructions for the District Court

to dismiss the petition. Mr. Hollawell also appeals from a

second decision of the same court denying a separate

petition for a writ of habeas corpus. Hollawell v. Gillis, No.

4:CV-00-1222, slip op. at 5 (M.D.Pa. Dec. 21, 2000)

(“Hollawell II” ). Because that decision was in error, we

vacate that decision as well.

BACKGROUND

Hollawell was convicted by a Pennsylvania court for

corrupt organizations offenses, bribery, and conspiracy.

He was sentenced to serve between six and a half and-

twenty-three years in a Pennsylvania correctional facility,

and he began doing so in 1990. Since his minimum term

elapsed, he has been denied parole several times by the

Pennsylvania Board of Probation and Parole. He has

brought numerous challenges to the Board’s actions. Two

of those challenges are the bases for the present appeals.

First, Hollawell has alleged that the Parole Board

denied him parole on the grounds of his race (white) and

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comments he made criticizing the Board. More

specifically, he has alleged that specific members of the

Board made statements to the effect that his race,

background, and criticisms of the Board were the reasons

that he had not been paroled. Hollawell challenged his

denial of parole on those grounds by filing a petition for

mandamus in the Commonwealth Court, which rejected

his petition in September 1995, Hollawell v. Pa. Bd. of

Prob. & Parole, No. 3267 C.D.1995 (Pa.Commw.cCt. Sept.

25, 1995), and by appealing that rejection to the

Pennsylvania Supreme Court, which denied his appeal in

June 1996, Pa. Bd. of Prob. & Parole v. Hollawell, Nos.

972, 573 (Pa. June 14, 1996). Thereafter, Hollawell filed

a petition for a writ of habeas corpus in the District Court

in August 1999. The court denied his petition, finding

that his allegations of discrimination and retaliation by

the Parole Board were unsupported and that he was

denied parole because of “poor institutional adjustment,

concern for public’ safety and unfavorable

recommendations from various sources, including the

-sentencing judge.” Hollawell Iat 3-4.

Second, Hollawell has challenged the denials of parole

as being violative of the Ex Post Facto Clause of the

United States Constitution due to a 1996 amendment to

61 Pa. Cons. Stat. § 331.1, the statute governing parole

standards. At the time of his conviction, that statute read

as follows:

The value of parole as a disciplinary and corrective

influence and process is hereby recognized, and it is

declared to be the public policy of this Commonwealth

that persons subject to imprisonment for crime shall,

on release therefrom, be subjected to a period of

parole during which their rehabilitation, adjustment

and restoration to social and economic life and

activities shall be aided and facilitated by guidance

and supervision under a competent and efficient

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parole administration, and to that end it is the intent

of this Act to create a uniform and exclusive system

for the administration of parole in_ this

Commonwealth.

61 Pa. Cons. Stat. § 333.1 (pre-1996). In 1996, the

statute was amended, giving “first and foremost”

emphasis to “the safety of the public” and no longer

mentioning rehabilitation of the offender:

The parole system provides several benefits to the

criminal justice system, including the provision of

adequate supervision of the offender while protecting

the public, the opportunity for the offender to become

a useful member of -society and the diversion of

appropriate offenders from prison.

In providing these benefits to the criminal justice

system, the Board shall first and foremost seek to

protect the safety of the public. In addition to this

goal, the Board shall address input by crime victims

and assist in the fair administration of justice by

ensuring the custody, control, and treatment of

paroled offenders.

61 Pa. Cons. Stat. § 333.1 (post-1996).

On July 21, 1999, when Hollawell was denied parole,

the Parole Board’s rationale tracked the language of the

amended statute: “[T]he mandates to protect the safety of

the public and to assist in the fair administration of

justice cannot be achieved through your release on

parole.” On December 2, 1999, Hollawell challenged that

denial by filing a petition for a writ of mandamus in the

Commonwealth Court, arguing that the change in the

statute retroactively increased his punishment in

violation of the Ex Post Facto Clause. The Commonwealth

Court dismissed the petition for lack of jurisdiction.

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Hollawell v. Pa. Bd. of Prob. & Parole, No. 688 M.D.1999

(Pa.Commw.cCt. Dec. 13, 1999). Although Hollawell did

not appeal that decision to the Pennsylvania Supreme

Court, he did file a subsequent petition for a writ of

mandamus, invoking the Pennsylvania Supieme Court’s

original jurisdiction and seeking the same relief on the Ex

Post Facto ground. The Pennsylvania Supreme Court

denied the petition without explanation. Hollawell v.

Ward, No. 291 M.D. Misc. Docket entry.1999 (Pa. Mar.

27, 2000).' -

Hollawell next filed a petition for a writ of habeas

corpus in the District Court in July 2000. The court

adopted sub _ silentio a miagistrate’s report and

recommendation that Hollawell had exhausted his state

court remedies before seeking federal habeas corpus

relief. The magistrate found that any appeal by Hollawell

of the decision by the Commonwealth Court would have

been fruitless because state law apparently did not

permit mandamus relief at that time. Hollawell v. Gillis,

No. 4:CV-00-1222, slip op. at 12 (Nov. 2, 2000)

(Magistrate’s Report & Recommendation); see also id. at

10°n. 1 (noting that Coady was pending in the

Pennsylvania Supreme Court at that time). On the merits,

the court applied the Morales test, viz., whether the

change to the parole law created “a sufficient risk of

increasing the measure of punishment,” and determined

that the change was not significant. Hollawell IJ at 4

' The Pennsylvania Supreme Court subsequently held that

it is within the Commenwealth Court’s original jurisdiction to

decide mandamus petitions raising questions whether Parole

Board decisions violate the Ex Post Facto Clause. Coady uv.

Vaughn, 770 A.2d 287, 290 (Pa.2001). Thus, the

Commonwealth Court’s 1999 dismissal of Hollawell’s petition

for lack of jurisdiction would have been erroneous had it

occurred after Coady.

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(citing Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 509

(1995)). Looking to a related preexisting parole statute, 61

Pa. Cons. Stat. § 331.21, and more specifically its

directive to protect the “interests of the Con monwealth”

from “injury,” the court found that the law had always

directed the Parole Board to protect the public safety. Id.

at 5-6.

Hollawell separately appealed both decisions of the

District Court. We have jurisdiction under 28 U.S.C. §

1291. We heard oral arguments for both appeals together

and set forth our decisions for each in this single opinion.

DISCUSSION

A. Appeal No. 99-3996 (Discrimination and Retaliation)

In reviewing a district court’s decision on a habeas

corpus petition, we review the court’s legal conclusions

de novo and any factual findings for clear error. Ruggiano

v. Reish, 307 F.3d 121, 126 (3d Cir.2002) (citing Rios v.

Wiley, 201 F.3d 257, 262 (3d Cir.2000)). We also review

decisions regarding the timeliness of a habeas corpus

petition de novo. Johnson v. Hendricks, 314 F.3d 159,

161 (3d Cir.2002) (citing Nara v. Frank, 264 F.3d 310,

314 (3d Cir.2001)).

Hollawell first argues that he exhausted his state

court remedies by filing a mandamus petition challenging

the denial of parole on discrimination and retaliation

grounds. He specifically points to an adverse decision by

the Commonwealth Court in September 1995 and an

adverse decision on the appeal of that decision by the

Pennsylvania Supreme Court in June 1996. On the

merits, he argues that he has presented sufficiently

detailed allegations of statements to the effect that the

decisions denying parole were the product of

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discrimination and retaliation so as to raise factual issues

that merit discovery and a hearing.

The Commonwealth responds that Hollawell’s

discrimination and retaliation-based habeas corpus

actions, commenced in 1999, were well past the one-year

statute of limitations, which began at the time of the final

adverse state court decision in 1996. Alternatively, the

Commonwealth contends that Hollawell did not exhaust

his state remedies by seeking relief from the state courts

within the year preceding his federal action. On the

merits, the Commonwealth contends that Hollawell’s

allegations were insufficient to justify relief, and that the

Parole Board’s stated reasons for denying him parole were

sound and belie his claims of discrimination and

retaliation.

We agree with the Commonwealth that Hollawell’s

habeas corpus action in the District Court was

time-barred. The one-year limitations period is set by

statute:

A 1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court.

The limitation period shall run from the latest of -

(A) the date on which the judgment became final

by the conclusion of direct review or the expiration

of the time for seeking such review,....

28 U.S.C. § 2244(d)(1). Hollawell’s brief unequivocally

asserts that the relevant state court decisions occurred in

1995 and 1996. That fact was confirmed by Hollawell’s

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counsel during orai argument.’ That being the case,

Hollawell’s 1999 federal habeas corpus petition was filed

more than three years after the final state court decision

and is therefore clearly time-barred. Accordingly, the

District Court erred in not dismissing the petition; we

therefore vacate the court’s denial of Hollawell’s petition

in Hollawell I and remand for the court to enter a

dismissal with prejudice. See, e.g., Johnson, 314 F.3d at

163 (affirming a dismissal of a habeas corpus petition as

time-barred under § 2244(d)(1)); Robinson v. Johnson, 313

F.3d 128, 143 (3d Cir.2002) (same).

B. Appeal No. 01-1063 (Ex Post Facto Violation)

Because “the determination of whether state remedies

have been exhausted and whether exhaustion should be

excused involves the application and interpretation of

legal precepts,” we review issues of exhaustion de novo.

Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir.1991)

(citing Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d

Cir.1986); Sullivan v. Cuyler, 723 F.2d 1077, 1082 (3d

Cir.1983)). Because the determination whether a change

in law violates the Ex Post Facto Clause is a

quintessentially legal question, we also review that issue

de novo. See Ruggiano, 307 F.3d at 126.

1. Exhaustion of State Remedies

Hollawell preemptively argues that he properly

exhausted the state remedies available to him before

*Hollawell has filed a flurry of state and federal petitions,

raising some uncertainty concerning which federal actions

relate to which state actions. However, we believe the record

and assertions of counsel at oral argument make clear that the

federal petition involved in this appeal relates to the state

petitions decided in 1995 and 1996.

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filing for habeas corpus relief in federal court. He argues

that he filed petitions for mandamus in both the

Commonwealth Court and the Pennsylvania Supreme

Court, but that his petitions were denied under the

then-existing (pre-Coady) law. The Commonwealth

responds that Hollawell was required to appeal the

Commonwealth Court’s denial to the Pennsylvania

Supreme Court, rather than merely file a separate

mandamus petition in the Supreme Court.

We agree with Hollawell that the exhaustion

requirement poses no obstacle to our rendering a

decision on the merits in this case. The exhaustion

requirement, codified at 28 U.S.C. § 2254(b), is grounded

in comity and affords states a full opportunity to correct

constitutional violations before the federal courts

consider the issues. O’Sullivan v. Boerckel, 526 U.S. 838,

844-45 (1999). A habeas petitioner gives the state courts

a full opportunity to address his case by attempting to

appeal through the chain of appeals to the state’s highest

court. Id. at 845 (“[S]tate prisoners must give the state

courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the State’s

established appellate review process.”).

In this case, Hollawell has apparently technically not

complied with the requirement to present his Ex Post

Facto case through the state court system’s chain of

appeals. Rather than appeal the Commonwealth Court’s

decision to the Pennsylvania Supreme Court, he filed a

new petition in the Pennsylvania Supreme Court seeking

a decision in the first instance. Notwithstanding that

failure to appeal, we conclude that Hollawell has satisfied

the exhaustion requirement. First, Hollawell filed both

state mandamus petitions as a pro se litigant, and we are

somewhat forgiving of the shortcomings of pro se litigants

concerning such technical matters as the distinction

between appellate review of a lower court’s decision and

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invoking the original jurisdiction of an appellate court.

Second, Hollawell did obtain a decision from the

Commonwealth’s highest court, and it is quite possible

that the Pennsylvania Supreme Court, obviously aware of

the lower court’s decision, treated his pro se petition as

being equivalent to an appeal. In any event, it acted upon

and denied that petition. Third, the state law at the time

arguably did not permit the mandamus relief Hollawell

was seeking, thus bringing him within an exception to

the exhaustion requirement. See 28 U.S.C. §

2254(b)(1)(B). Thus, we consider that the appeal is

properly before us.

2. Ex Post Facto Violation: Merits

In his original briefs and oral argument, Hollawell has

argued that the change in the statute altered the factors

to be considered by the Parole Board and thus

constituted a more serious statutory change than those

previously upheld as nonviolativé of the Constitution.

According to Hollawell, the old statute gave primary

importance to the rehabilitation of the offender, while the

amended statute introduced a new condition - “protection

of the safety of the public” - and further made that new

condition the paramount one. Hollawell contends that the

new condition is truly new and not merely a restatement

of 61 Pa. Cons. Stat. § 331.21, which directed the Parole

Board to protect the “interests of the Commonwealth.”

Finally, Hollaweli contends that parole release rates have

decreased significantly since the change in the law,

indicating that the change has increased the penalties for

criminal violations.

In its original briefs and oral argument, the

Commonwealth has responded that parole decisions have

always been at the discretion of the Parole Board and

that the amendment therefore did not amount to a “law”

for Ex Post Facto purposes. The Commonwealth also

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contends that, even before the amendment, the Parole

Board was obliged to consider public safety under the

“interests of the Commonwealth” prong of § 331.21.

Finally, the Commonwealth disputes the accuracy and

significance of Hollawell’s empirical data concerning

parole rates.

After oral argument in this case, this court issued a

decision in Mickens- Thomas v. Vaughn, 321 F.3d 374 (3d

Cir.2003), holding that the statutory change did

constitute an Ex Post Facto violation with respect to an

individual already sentenced. At our direction, the parties

submitted supplemental briefs addressing the impact of

Mickens-Thomas on this case. Hollawell’s supplemental

brief contends that Mickens-Thomas confronted the

identical issue presented in this case, and squarely

rejected the same arguments that the Commonwealth

now advances. According to Hollawell, he should receive

a new parole hearing applying the pre-amendment

standards, just as Thomas _ received. The

Commonwealth’s supplemental brief makes three

contentions. First, Mickens-Thomas does not reach the

exhaustion issue present in this case. Second, the

decision in Mickens-Thomas rests upon an extensive

factual record that is not present in this case. Third,

according to the Commonwealth, Mickens-Thomas was

incorrectly decided and should be reconsidered.

The Constitution forbids Congress and the states from

enacting Ex Post Facto laws. U.S. Const. art. I, § 9, cl. 3,

§ 10, cl. 1. The relevant Ex Post Facto Clause reads as

follows: “No State shall ... pass any ... ex post facto

Law....” Id., § 10, cl. 1. The Supreme Court of the United

States has interpreted that clause to prohibit “laws that

retroactively alter the definition of crimes or increase the

punishment for criminal acts.” Morales, 514 U.S. at 504

(quotations omitted).

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As an initial matter, we agree with Hollawell that 61

Pa. Cons. Stat. § 331.1 constitutes a “law” for Ex Post

Facto purposes. It is legislation that clearly directs which

factors the Parole Board must consider in exercising its

discretion to grant or deny parole. Although one does not

have a constitutional right to parole, and a decision to

grant or deny parole to a Pennsylvania inmate is a

discretionary one that is not subject to direct judicial

review, Coady, 770 A.2d at 289, a parole decision can be

collaterally attacked on constitutional grounds, including

the Ex Post Facto Clause. Indeed, the Supreme Court has

recently considered two appeals concerning when a

retroactive change in parole rules violates the Ex Post

Facto Clause. In Morales, the Court upheld a California

law that authorized its Parole Board, after the first parole

hearing, to hold following parole hearings in two or three

years rather than one year, provided that the Board

found that the prisoner would not reasonably be expected

to be suitable for parole in the next year or two,

respectively. 514 U.S. at 507. In Garner v. Jones, the

Court upheld a similar Georgia law that allowed the

Parole Board to increase the interval between hearings

from a maximum of three years to eight years. 529 U.S.

244, 247 (2000). Thus, changes in the law that effectively

extend the time before parole rehearings can occur do not

necessarily violate the Ex Post Facto Clause.

The test set out in Morales for determining whether a

parole law amendment violates the Ex Post Facto Clause

involves a two-step inquiry. First, the court must

determine “[wjhether [the amendment] produces a

sufficient risk of increasing the measure of punishment

attached to the covered crimes.” Morales, 514 U.S. at 509.

If not, then the amendment may nonetheless still violate

the Ex Post Facto Clause if the _ challenger

“demonstrate[s], by evidence drawn from the rule’s

practical implementation by the agency charged with

exercising discretion, that its retroactive application will

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result in a longer period of incarceration than under the

earlier rule.” Garner, 529 U.S. at 255.

Regarding the first inquiry, the Court in both Morales

and Garner took care to expressly distinguish the

amendment before it - amendments relating to the timing

of an offender’s parole hearings - from an amendment

relating to “the standards for ... determining his

suitability for parole.” Morales, 514 U.S. at 507; Garner,

529 U.S. at 250. This case presents a question of that

latter type, viz., whether retroactive application of a

parole statute amendment expressing for the first time

that “the board shall first and foremost seek to protect

the safety of the public” violates the Ex Post Facto Clause.

In Mickens-Thomas, this court answered the question

affirmatively. Thomas had been serving a life sentence,

without the possibility of parole, for the rape and murder

of a twelve-year-old girl in 1964. 321 F.3d at 376.

Governor Casey commuted the life sentences of Thomas

and 26 others, thereby rendering them eligible to apply

for parole. Id. at 377. Thomas applied for parole three

times between 1996 and 2000. Id. at 380-83. Despite

release recommendations from Department of Corrections

staff, Thomas’s participation in counseling and therapy,

and favorable psychiatric evaluations, the Board denied

his application each time, referring in the first two

denials to Thomas’s “assaultive instant offense” and “very

high assaultive behavior potential,” id. at 381-82, and

stating in the final denial that “the mandates to protect

the safety of the public and to assist in the fair

administration of justice cannot be achieved through

your release on parole,” id. at 382. Of all the prisoners

who had had their life sentences commuted by

then-Governor Casey, Thomas was the only one not

released on parole. Id. at 385. |

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The court in Mickens-Thomas held that Pennsylvania’s

change to the parole statute altered the manner in which

the Parole Board weighed public safety 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. The court described the statistical evidence as

“staggering,” noting that in 266 historical instances of

commuted life sentences, Thomas was the only one not

granted parole within his first two attempts. Id. The court

accordingly ordered that Thomas’s parole application be

remanded to the Parole Board for review under the

pre» 1996 rules. Id. at 393.

We are aware of the recent decision of the

Pennsylvania Supreme Court considering whether the

statutory amendment violates the Ex Post Facto Clause:

Winklespecht v. Pa. Bd. of Prob. & Parole, 813 A.2d 688,

692 (Pa.2002). The Court there held that the

Pennsylvania amendment was merely a new expression

of a standard that had previously been inherent in the

law. However, Mickens- Thomas is a precedent of this

court, binding unless overruled en banc or by the

Supreme Court of the United States, and the

Commonwealth’s arguments attempting to distinguish

Mickens-Thomas are not convincing. First, as explained

above, we do not accept the Commonwealth’s contention

that we need not reach the merits of Hollawell’s Ex Post

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Facto claim because he has not exhausted his state

remedies. Second, the Commonwealth’s contention that

the Mickens- Thomas decision is predicated on a factual

record not developed in this case, although true, does not

have the effect that the Commonwealth urges.

Mickens-Thomas clearly holds as a legal matter that the

Pennsylvania statutory change violates the Ex Post Facto

Clause. Moreover, to the extent that that holding is

premised on factual evidence of the amendment’s

practical effect, Hollawell might rely on that same

evidence and achieve the same result if we were to

needlessly remand this case for factual development in

the District Court. Third, and finally, this panel of the

court cannot, as the Commonwealth would like, overrule

Mickens-Thomas even if we might disagree with it. It is

binding precedent that we must follow.

Accordingly, we vacate the decision of the District

Court in Hollawell II and, as the Mickens-Thomas panel

did, 321 F.3d at 393, remand for the District Court to

order the Pennsylvania Board of Probation and Parole to

re-adjudicate Hollawell’s parole application applying the

pre- 1996 statute and corresponding rules.

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\

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHN HOLLAWELL, : No. 4: CV-00-1222

Petitioner

: Petition filed

Vv. : 7/10/00

FRANK D. GILLIS, ET AL., : (Judge Muir)

Respondents

ORDER

December 21, 2000

THE BACKGROUND OF THIS ORDER IS AS

FOLLOWS:

On July 10, 2000, John Hollawell, an inmate at the

State Correctional Institution, Coal Township,

Pennsylvania, (“SCI-Coal Township”), filed a petition for

writ of habeas corpus. Named as Respondents are Frank

D. Gillis, the superintendent of SCI-Coal Township and

William Ward, the Chairman of the Pennsylvania Board

of Probation and Parole. Hollawell paid the $5.00 filing

fee.

In the petition for writ of habeas corpus, Hollawell

who is serving a 6 2 to 23 year sentence requests that

the court direct the Parole Board to grant him parole.

Hollawell’s minimum sentence expired on November 2,

1994, and his maximum sentence will expire on May 2,

2011. The above-captioned case was assigned to us but

referred to Magistrate Judge J. Andrew Smyser for

preliminary consideration.

On October 13, 1999, Magistrate Judge Smyser

issued a report in which he recommended that Hollawell’s

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petition for writ of habeas corpus be denied. Hollawell

filed objections to the report of Magistrate Judge Smyser.

When objections are filed to a report of a magistrate

judge, we make a de novo determination of those portions

of the report or specified proposed findings or

recommendations made by the magistrate judge to which

there are objections. United States vs. Raddatz, 447 U.S.

667 (1980); 28 U.S.C. § 636(b)(1); Local Rule 72.31.

District judges have wide discretion as to how they treat

recommendations of the magistrate judge. Id. Indeed, in

providing for a de novo review determination rather than

a de novo hearing, Congress intended to permit whatever

reliance a district judge, in the exercise of sound

discretion, chooses to place on a magistrate judge’s

proposed findings and recommendations. Id. See also

Mathews vs. Weber, 423 U.S. 261, 275 (1976); Goney vs.

Clark, 749 F.2d 5, 7 (3d Cir. 1984).

On July 21, 1999, the Pennsylvania Board of

Probation and Parole denied Hollawell parole. The Parole

Board stated:

Following an interview and review of your file the

Pennsylvania Board of Probation and Parole has

determined that the mandates to protect the safety of

the public and to assist in the fair administration of

justice cannot be achieved through your release on

parole. You are therefore refused parole and ordered

to: be reviewed in or after September 2000.

In his petition, Hollawell alleges that the Parole Board’s

July 21, 1999, denial of parole was a violation of the Ex

Post Facto Clause of the United States Constitution.

Specifically, he claims that the Parole Board applied a

1996 amendment to 61 P.S. § 333.1 when considering

him for parole.

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At the time Hollawell committed his offenses, 61PS.

§ 333.1 stated as follows:

The value of parole as a disciplinary and corrective

influence and process is hereby recognized, and it is

declared to be the public policy of this Commonwealth

that persons subject to imprisonment for crime shall,

on release therefrom, be subjected to a period of

parole during which their rehabilitation, adjustment

and restoration to social and economic life and

activities shall be aided and facilitated by guidance

and supervision under a competent and efficient

parole administration, and to that end it is the intent

of this act to create a uniform and exclusive system

for the administration of parole in _ this

Commonwealth.

Section 331.1, as noted above, was amended in 1996 and

now states as follows:

The parole system provides several benefits to the

criminal justice system, including the provision of

adequate supervision of the offender while protecting

the public, the opportunity for the offender to become

a useful member of society and the diversion of

appropriate offenders from prison.

In providing these benefits to the criminal justice

system, the board shall first and foremost seek to

protect the safety of the public. In addition to this

goal, the boards hall address input by crime victims

and assist in the fair administration of justice by

ensuring the custody, control and treatment of

paroled offenders.

Hollawell contends that the amendment which includes

the provision that the Parole Board “shall first and

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foremost seek to protect the safety of the public” has been

applied to him in violation of the Ex Post Facto Clause.

The United States Constitution forbids ex post facto

laws. U.S. Const. Art. I, § 9 & 10. The Ex Post Facto

Clause is directed at laws that retroactively alter the

definition of a crime or that increase the punishment for

criminal acts. California Dept. Of Corrections vs. Morales,

514 U.S. 499, 504 (1995). Before a court may conclude

that a law violates the Ex Post Facto Clause the law must

be shown to (1) be_ retrospective and (2) be

disadvantageous to the offender affected by it. Weaver vs.

Graham, 450 U.S. 24, 29 (1981).

Retroactive changes in laws governing parole may in

some instances violate the prohibition against ex post

facto laws. Garner vs. Jones, 120 S.Ct. 1362, 1367

(2000). However, “the Ex Post Facto Clause should not be

employed for ‘the micromanagement of an endless array

of legislative adjustments to parole and sentencing

procedures.” Id. At 1367 (quoting Morales, supra, 514

U.S. at 508). The Ex Post Facto Clause does not forbid

every legislative change that has any conceivable risk of

affecting a prisoner’s punishment. Morales, supra, 514

U.S. at 508. The most important inquiry is whether the

change creates “a sufficient risk of increasing the

measure of punishment attached to the covered crimes.”

Id. at 509. The prisoner “must show that as applied to his”

own sentence the law creates a significant risk of

increasing his punishment.” Garner, supra. 120 S.Ct. at

1370.

Furthermore, in reviewing a change in a state law

relating to parole all of the statutory procedures relating

to parole must be considered to determine whether the

amended statute is more onerous than the original parole

procedures. Crowell vs. U.S. Parole Comm’n, 724 F.2d

1406, 1409 (3d Cir. 1984). In the present case, although

-20a-

the old version of 61 P.S. § 331.1 did not contain a

directive that the Parole Board protect the public,

protection of the public was always a factor the Parole

Board was obliged to consider. 61 P.S. § 331.21 which

was in existence at the time Hollawell committed his

offenses states as follows:

The Board is hereby authorized to release on parole

any convict confined in any penal institution of this

Commonwealth as to whom power to parole is herein

granted to said board, except convicts condemned to

death or serving life imprisonment, whenever in its

opinion the best interests of the convict justify or

require his being paroled and it does not appear that

the interests of the Commonwalth will be injured

thereby.

(Emphasis added.) Both before and after the 1996

amendment to § 331.1, the Parole Board was charged

with protecting the public. The law in this respect did not

change.

Retroactive legislation is subject to challenge only if it

involves a deprivation of legitimate expectations or upsets

settled transactions. General Motors Corporation vs.

Romein, 503 U.S. 181, 191 (1992). Prior to the 1996

amendment Hollawell had no legitimate expectation that

the Parole Board would disregard the possible danger to

the community if he were released on parole.

Consequently, Hollawell cannot establish a violation of

the Ex Post Facto Clause.

Hollawell has also objected to the manner in which

the Parole Board responded to the petition for writ of

habeas corpus. The Parole Board initially responded to

the petition by filing a motion to dismiss. Magistrate

Judge Smyser denied that motion and directed that the

Parole Board file a response. We see no impropriety in the

-2la-

manner in which the Parole Board initially responded to

Hollawell’s petition.

Hollawell also claims that Magistrate Judge Smyser

showed preferential treatment to the Parole Board.

Magistrate Judge Smyser rejected several of the Parole

Board’s contentions, including that Hollawell failed to

exhaust state court remedies. Hollawell’s claim that

Magistrate Judge Smyser showed preferential treatment

to the Parole Board is devoid of any merit whatsoever.

The report of Magistrate Judge Smyser is free from

error. Because we find no error in Magistrate Judge

Smyser’s report we shall adopt it as our own and deny

Hollawell’s petition for writ of habeas corpus.

NOW, THEREFORE, IT IS ORDERED THAT:

1. The report of Magistrate Judge Smyser filed

November 2, 1999, is adopted in toto.

2. Hollawell’s petition for writ of habeas corpus is

denied.

3. The Clerk of Court shall close this case and send a

copy of this order to Magistrate Judge Smyser.

4. Any appeal from this order will be deemed lacking

in probable cause, i.e., a substantial showing of the

denial of a constitutional right, and a certificate of

appealability will not issue.

ls/

MUIR, U.S. District Judge

-22a-

PRECEDENTIAL

Filed February 21, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-2047 & 02-2213

LOUIS MICKENS-THOMAS

Appellant in No. 02-2213

V.

DONALD VAUGHN, SUPERINTENDENT;

PENNSYLVANIA BOARD OF PROBATION AND PAROLE;

THE PENNSYLVANIA BOARD OF PARDONS; THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA

Pennsylvania Board of Probation and Parole

Appellant in No. 02-2047

Appeal from the United States District Court for the

Eastern District of Pennsylvania

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

District Judge: Honoreble Ronald L. Buckwalter

Argued: December 19, 2002

Before SLOVITER, McKEE, and ROSENN, Circuit

Judges

(Filed February 21, 2003)

Leonard N. Sosnov (Argued)

1027 Abington Avenue

Wyndmoor, PA 19038

-23a-

David Rudovsky

Kairys, Rudovsky, Epstein & Messing

924 Cherry Street, Suite 500

Philadelphia, PA 19107

Counsel for Louis Mickens-Thomas

Syndi L. Guido (Argued)

Office of General Counsel

Commonwealth of Pennsylvania

333 Market Street, 17th Floor

Harrisburg, PA 17101

Robert N. Campolongo

Pennsylvania Board of Probation &

Parole

Executive Office

1101 South Front Street, Suite 5100

Harrisburg, PA 17108-1268

Counsel for Vaughn, PA Bd Prob. and

Parole, PA Bd Pardons, Atty. Gen. PA

OPINION OF THE COURT

ROSENN, Circuit Judge:

This appeal has its genesis in the material

modification of parole laws by the Pennsylvania

legislature in 1996 and corresponding changes in the

parole decisionmaking policies of the Pennsylvania Board

of Probation and Parole (“Board”).' As a consequence, the

post- 1996 parole regime placed primary consideration on

the risk to public safety by the parole petitioner as the

'The Board is the only named party electing to participate

in this appeal, and the only party against whom our judgment

in this case applies.

-24a-

dominant factor in evaluating parole applications. The

United States District Court for the Eastern District of

this policy change adversely to the parole applications of

Louis Mickens-Thomas (“Thomas”), in violation of the Ex

Post Facto clause. The Commonwealth timely appealed:

Thomas cross-appealed on his claim that the Board

violated his due process rights when it denied his parole

applications. We affirm.”

I.

A. Pre-1996 Parole Considerations in Pennsylvania

*The District Court exercised jurisdiction under 28 U.S.C.

§ 2254(a). We have appellate jurisdiction under 28 U.S.C. §

State court, a certificate of appealability is required before

appeal by a habeas petitioner will be heard. A certificate of

appealability was issued by the District Court, and thus our

jurisdiction is Proper. Moreover, such a certificate may be

unnecessary because the Commonwealth initiated the appellate

it appears state court recourse was exhausted by an appeal to

the Pennsylvania Supreme Court, that case is not part of this

record. However, exhaustion is not jurisdictional and is

waivable. Narvaiz v. Johnson, 134 F.3d 688, 693 n. 1 (Sth

Cir.1998). Inasmuch as the Board has not made an issue

thereof, exhaustion is deemed waived. We exercise plenary

review in a habeas proceedizig ‘over a district court’s legal

conclusions, and we review factual findings for clear error.

Rios, 201 F.3d at 262. The relevant facts in the case before us

are largely undisputed, and our decision rests upon the

application of the Ex Post Facto clause to the facts at issue.

Therefore, our review of the District Court is plenary.

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OT, I EEE EO oO EE ee

Thomas is currently serving a life sentence for the

1964 rape and murder of a 12-year-old girl in

Philadelphia, Pennsylvania. The parties agreed to vacate

the original guilty verdict because of the unreliability of

the expert whose testimony connected fibers and

microscopic particles found on the victim to Thomas. In

1967, the state trial court granted Thomas a new trial; in

1969, he was again convicted.* His second conviction was

upheld by the Pennsylvania Supreme Court in 1972.

However, Thomas still professes innocence. Thomas is

presently 74-years-old and has been in prison for nearly

40 years. His current efforts to seek release on parole

have garnered the strong support of prisoner advocates,

incurred the equally vehement opposition of the

Philadelphia District Attorney, and have attracted

considerable media scrutiny.

Life sentences in Pennsylvania presumptively exclude

any possibility of parole. The only exception occurs when

the governor-appointed Pardons Board recommends

commutation of the inmate’s sentence by majority vote,

and the Governor subsequently approves. the

commutation. Thomas was one of only 27 sentences

commuted by former Governor Casey out of nearly 3000

life terms being served during his tenure as governor. By

the terms of his commutation. Thomas became eligible for

parole on July 21, 1996. In recommending commutation,

the Pardons Board noted Thomas’s attainment of a

college degree, his_ participation in Alcoholics

°More specifically, the first conviction was rejected because

the prosecution’s lead witness, a technician who matched

fibers and debris from Thomas’s shoe repair shop to those

found on the girl’s body, was found to have falsified her

credentials and to have perjured herself in another case. At the

second trial, the technician’s supervisor corroborated the

technician’s testimony and vouched for the correctness of the

analysis.

-26a-

Anonymous, his participation in sex-offender therapy, the

support of the Corrections Department, the long length of

time served, the numerous recommendations from

scholars, religious, and community leaders, and

Thomas’s overall maturity and stability.

Following a commutation, a prisoner seeking to be

released must still submit to the same parole procedures

applicable to all other prisoners. Furthermore, the parole

must first be approved by the Board, which virtually has

unreviewable power to grant or deny the parole

application. Around the time of Thomas’s eligibility for

parole, new appointments of then-Governor Ridge were

placed on the Board in 1995;* a parolee from the

Pennsylvania prison system was arrested for murder in

New Jersey in 1995; and in early 1996 a Pennsylvania

Senate committee, in view of the New Jersey arrest,

strongly recommended that the Board place added

emphasis on community safety. In December 1996,

Pennsylvania enacted a change in its law concerning the

Board’s mission, which arguably placed greater emphasis

on public safety as a criterion for parole release.

In December 1996 the Pennsylvania legislature

modified the law governing parole in Pennsylvania. The

new language, inserted into the aspirational introductory

provision of the Pennsylvania parole statutes, provides

that the public safety must be considered “first and

foremost” in the Board’s execution of its mission. The

“Three of five members of the Parole Board were Governor

Ridge appointees in 1995. In 1997, after changes in parole laws

increased the size of the Board, six out of eight were Ridge

appointees.

-27a-

relevant statute, in its post-1996 form, provides as

follows:°®

§ 331.1. Public policy as to parole

The parole system provides several benefits to the

criminal justice system, including the provision of

adequate supervision of the offender while protecting

the public, the opportunity for the offender to become

a useful member of society and the diversion of

appropriate offenders from prison. In providing these

benefits to the criminal justice system, the board shall

first and foremost seek to protect the safety of the

public. In addition to this goal, the board shall

address input by crime victims and assist in the fair

administration of justice by ensuring the custody,

control and treatment of paroled offenders.

61 P.S. § 331.1

The 1941-1996 statute, in effect at the time of Thomas’s

conviction, made no specific mention of public safety. It

provided:

The value of parole as a disciplinary and corrective

influence and process is hereby recognized, and it is

declared to be the public policy of this Commonwealth

that persons subject or sentenced to imprisonment for

crime shall, on release therefrom, be subjected to a

period of parole during which their rehabilitation,

adjustment, and restoration to social and economic

life and activities shall be aided and facilitated by

guidance and supervision under a competent and

‘This provision is a preface to a comprehensive set of rules

governing parole in Pennsylvania. Other provisions too were

changed in 1996, but none materially for the purposes of this

case.

-28a-

efficient parole administration, and to that end it is

the intent of this act to create a uniform and exclusive

system for the administration of parole in this

Commonwealth.

To assess this modification of the statute, one must

regard this change in the context of recent policy

statements issued by the Board and other government

officials. Other events coincident with the 1996 revision

must also be considered to determine whether, in

practice, the parole policies of the Commonwealth have

undergone any substantive changes.° The Board’s 1989

Manual of Operations and Procedures recognized that

“[plrobation 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 human beings.” App.

284. The Manual goes on to state that, in considering an

inmate for parole, the Board must “weigh[{ ] numerous

factors relative to the welfare of the client and the safety

of the community,” including seriousnuss of the offense;

length of the sentence; institutional adjustment (behavior

and program adjustment); and assessment of the effect of

rehabilitation services while incarcerated. Whether the

individual can be safely Supervised in the community,

personality characteristics, any history of family violence,

Strength of the parole plan (home and employment),

testimony from victims, and Opinions of the sentencing

judge and prosecuting attorney must also be considered.

‘The Board argues that the Statutory provision pertains

only to supervision of inmates previously granted parole, and

not to the determination of parole eligibility. However, even if

this were so, the plain language of the statute is merely one

barometer of a change in parole policy. Accordingly, we look to

all the Board’s actions and statements of policy to determine

how it interpreted the Statutory provisions.

-29a-

In reaching its parole decision, “[t]he Board ... feel[s]

that an individual should be given every consideration for

parole at the expiration of the minimum sentence.” App.

285. The 1990 Board-authored “Parole Decision Making

Guidelines: A Statement on Policy Procedure and

Philosophy,” stated that “[ajn eligibility for 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.” App. 243.

A decisional protocol called the “Parole Decision

Making Guidelines” played a critical role in the Board’s

decisionmaking process pre-1996. The Guidelines

-provided an objective prediction of the likelihood of a

successful parole by assigning numerical values to

various criteria, based on historical patterns of parolee

recidivism rates. According to the Board authored 1991

“Guidelines: A Special Report Prepared for the House

Judiciary Committee,” the Guidelines considered factors

which, based on a study of past instances of recidivism,

were predictors of future recidivism in potential parolees.

App. 256. For example, historically, those convicted of

theft offenses have high recidivism rates. Thus, they are

assigned a higher score; similarly, substance abusers are

high recidivists, and correspondingly, they have higher

scores assigned in the Guidelines. If enough of these

negative predictors are present, the aggregate score will

fall above a threshold value, and the Guidelines will

recommend against parole. App. 246.

In addition to risk of recidivism, “risk to the

community” is also a relevant factor under the Guidelines

in determining whether parole is warranted. App. 252.

Thus the Guidelines, in addition to calculating the risk of

recidivism, add additional points for offenders whose

post-parole conduct might include violent behavior,

categorizing them as having “high assaultive behavior

-30a-

potential.” App. 52. Therefore, a person who initially

committed a violent crime will be evaluated as a parole

candidate under the Guidelines, based upon his or her

risk to the public as a function of both the likelihood of

recidivism and the severity of the crime he or she might

commit as a recidivist. The Board’s 1990 Statement on

Policy Procedure and Philosophy notes that

[iJnherent in the concept of risk management is the

notion that some crimes, although less likely to be

repeated, have more serious consequences than

others if repeated. In other words, although some

offenders may be low risk from the viewpoint of

recidivism and parole supervision failure, the stakes

are high in terms of protecting the public if their new

crime is violent or serious in nature. App. 246.

According to the House Judiciary Report, the

Guidelines are ‘related to an empirically sound,

criterion-referenced policy assessment which evaluates

each inmate in terms of criminal justice policy and

normative past practice in parole decision making.” App.

256. Although the Guidelines aspire to objectivity in

parole decision making, the Board periodically has

countermanded their recommendations. The 1990

Statement on Policy, Procedure and Philosophy declared

that the Guidelines protocol typically determined

“approximately eighty percent of the decisions rendered.”

App. 247. The Statement notes, however “that the

structuring of discretion does not eliminate it; the burden

of the decision remains with the decision maker to

evaluate the merit of each case.” App. 249.

Thus, before 1996, about 20% of such decisions were

decided contrary to the Guidelines recommendation.

Nonetheless, a discretionary Guidelines departure must

give full weight to all the factors, both for and against

release. The Report stated that decisions which

-3la-

countermand the Guidelines are “rarities,” and “require

written explanation to justify the policy exception.” In

reaching a decision outside the Guidelines, the Board

cannot merely recite factors already incorporated in the

Guidelines analysis; instead it must consider

“consequential characteristics” of the applicant that are

“objectively unique” to the factors already incorporated

into the Guidelines analysis.’ App. 254. A Guidelines

worksheet is provided along with the formal numerical

protocol, to permit elucidation of non-Guidelines factors

reached in a parole decision, as well as a checklist (Part

IV.B. of the Guidelines) for designation of common

non-Guidelines factors which may have been significant

in reaching a decision contrary to the Guidelines

recommendation.®

In early 1995, Robert “Mudman” Simon, who had

been released on parole from his Pennsylvania prison

sentence, was arrested and charged with murder in New

Jersey.° In mid-1995 Simon’s release led to the

publication of a “System-Wide Assessment” of the Board,

"Factors considered within the Guidelines analysis include

substance abuse, prison misconduct, nature of the underlying

offense, and victim injury.

®These factors include the presence of psychotic or

dangerous behavioral characteristics manifested during the

parole interview; recent psychiatric reports causing concern; a

pattern of habitual offense of assaultive crimes; or an

unfavorable recommendation from the Department of

Corrections staff.

*Former Governor Ridge made a campaign issue of the

commutation and release of Reginald McFadden, who also

ended up killing again upon his parole in 1994. This was

considered by some to be instrumental in the defeat of Ridge’s

opponent, then-Lt. Governor Singel, who, as a member of the

Pardons Board, had voted to release McFadden.

-32a-

Or ERECCERCER TE ere

by the Pennsylvania Inspector General, in which it was

determined that more emphasis on public safety and on

the nature of the underlying crime was needed in making

parole decisions. The System-Wide Assessment noted

that the Board management generally “has emphasized

[inmate] interests over community protection,” and that

one faction of Board officials perceives “reintegration into

society [as] the primary mission,” while another faction

“focuses ... on the protection of society.” App. 297.

The Chairman of the Pennsylvania Senate Judiciary

Committee, reporting on the investigation of the parole of

Simon, published in February 1996, noted that following

a 1989 prison riot in Pennsylvania, “reduction in prison

overcrowding through the parole process became an

objective of [the Board] coequal with assuring public

safety.” App. 326. The Report also noted that the Board

recently “has set out to establish public safety as a

priority including a more careful review of parole eligible

cases.” App. 343. Accordingly, the Report recommended

that “[e]xisting statutes and policies should be looked at,

amended, restated and/or purged as necessary to

effectuate the new corrections philosophy of Pennsylvania

[emphasizing] public safety...... App. 351 (emphasis

added.)

The Board’s self-assessment report, entitled “Fiscal

Years 1995-1997 Biennial Report,” stated that “[i]n recent

years, the Governor and General Assembly have

mandated through statute that the foremost concern for

the Board must be the protection of the safety of the

public....” The Report went on to note recent “heightened

awareness and concern for public safety,” which

prompted it to institute more careful review procedures

for cases involving “violent offenders.” App. 219. Thus,

both the Judiciary Committee Report of February 1996

and the contemporaneous Biennial Report gave public

notice that henceforth the “foremost concern” of the

Board would be the safety of the public.

B. Thomas’s Parole Applications

We now turn to the effect of the Board’s new policy on

Thomas’s parole application. When Governor Casey

commuted Thomas’s sentence, he authorized the

Department of Corrections to “prerelease” Thomas,

presumably into a transitional facility, prior to Thomas’s

parole-eligibility date. This the Corrections Department

declined to do. App. 663. Then, in the Board’s first review

of Thomas’s case in September 1996, it also declined to

parole him on the ground that, under the new law passed

: in 1995, “prerelease” was made a necessary precondition

of parole. The Commonwealth Court heard Thornas’s

mandamus action in which he sought to direct the Board

to hear his parole petition. In that case, the Board

conceded that its application of the “prerelease” law

violated the Ex Post Facto clause. The court remanded

the case to the Board, and ordered it to hear the merits

of the parole application and issue its decision within 10

days. See Mickens-Thomas v. Pennsylvania Board of

Probation and Parole, 699 A.2d 792 (Pa.Commw.Ct. 1997).

Soon thereafter, in August 1997, the Board issued its

decision, relying in part on its Decision Making

Guidelines to reach a conclusion as to parole eligibility.’

Thomas received a Guidelines-based recommendation for

release, App. 432, along with the recommendations of all

voting Department of Corrections institutional staff,

The Guidelines manual states that they were “designed to

represent observable standards of justice in making decisions

and to link behavior with societal sanctions in a clearer

manner.... A process of structured review acts to balance the

inmate’s liberty interest with the interests of society for a safe

and secure community.”

|

-34a-

OE A TALLIS SE ¥

including the prison counselor and housing officer. See

Department of Corrections Vote Sheet, March 11, 1996,

App. 631. Thomas demonstrated his participation in

pre-release counseling, including Alcoholics Anonymous

and sex offender therapy, as well as participation in

college courses and job training. Thomas also had

post-release support networks in place. App. 44.

Nonetheless, the Board denied Thomas parole in 1997.

The Board stated its reasons for the denial in a formal

letter to Thomas called the “Board Decision.” The reasons

given were as follows: “Assaultive instant offense. Very

high assaultive behavior potential. Victim injury.

Unfavorable recommendation from District Attorney.

Conviction of prior assault offense.” App. 441. Many of

these factors were automatic designations; for example,

Thomas’s past crime was a sex offense, which caused him

to be automatically classified on the Board Decision as

having “very high assaultive behavior potential.” App. 52;

Board Reply Brief 14.

The Board’s 1997 Decision urged Thomas to secure

the following before his next application review:

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, with

experience with sex offenders. The Board made these

recommendations in spite of Thomas’s apparent

compliance with all of the Board’s suggestions prior to

the hearing. For example, he had a good conduct record

and the endorsement of prison staff.

The Board urged a psychiatric examination, despite

the existence of a pre-commutation 1993 psychiatric

-35a-

report supporting Thomas’s release.'' There were other

psychological evaluations in his file that did not

contraindicate release. Although Thomas had engaged in

sex offender therapy, there is some indication, based on

handwritten notes on the Board’s decision making

worksheet, that the Board may have been troubled by

Thomas’s presence in a “deniers” group--those who deny

responsibility for the underlying offense-- rather than an

“admitters” group App. 434. The Board Decision makes

no specific mention of the admitter-denier distinction,

and its internal notes make only passing mention of the

issue.'? Later, in 1997, the Pennsylvania Supreme Court

heard Thomas’s habeas petition but summarily denied it.

Thereafter, Thomas apparently complied with all of

the Board’s prerequisites 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. App.

634. He continued to participate in a sex-offender therapy

program--although it was a “deniers” program--along with

an Alcoholics Anonymous program. Post-release support

networks were in place. And the Guidelines assigned

‘In particular, the Board seemed concerned, in its 1997

Guidelines worksheet, that Thomas had only undergone

psychological, and not psychiatric evaluations. This 1993

report, authored by a psychiatrist, belies the Board’s ciaim that

Thomas had never received a psychiatric evaluation.

The Board is not required to give every reason for its

denial on the Board Decision. App. 248. However, its internal

notes fail to show that it considered the admitter-denier

problem to be a serious matter. The issue is merely mentioned

in a neutral way.

-36a-

Thomas a risk- assessment score which militated in favor

of release. App. 424.

Despite his compliance with essentially all of the

Board’s conditions, it again denied parole in March 1998,

Stating: “Assaultive instant offense. Very high assaultive

behavior potential. Victim injury. Your need for

counseling and treatment.” App. 440. In this latest Board

Decision, it again advised Thomas to seek counseling and

treatment, to participate in prescribed programming, to

maintain a clean record and obtain institutional

recommendation for the purposes of his next application.

Unlike the 1997 decision, the 1998 decision

recommended no specific sex offender treatment, nor

mentioned in its internal decision making worksheet that

Thomas was in a “denier” group. Moreover, despite the

comment that Thomas needed “counseling and

treatment,” psychiatric and psychological evaluations did

not contraindicate his release. Presumably in response to

the 1997 Board Decision’s admonition that Thomas

needed to be evaluated by a mental health professional,

the Board noted, in its worksheet, that a 1998

psychological evaluation showed Thomas to be an

“average risk candidate.” App. 426. The Department of

Corrections psychologist, in the 1998 Vote Sheet, noted

“No Psychological Contraindications” for release. App.

634.

A 1996 psychological evaluation did show an

“antisocial personality,” and “possible sexual

preoccupation and psychosexual immaturity.” App. 623.

However, the decisionmaking worksheet does not reflect

that the Board was deeply concerned with those findings,

and instead only made mention, in a handwritten

notation, of the 1998 psychological report’s conclusion

that Thomas was an “average risk candidate.” No notation

was made of two earlier psychological evaluations, which

had more clearly favored release. One 1993 report called

-37a-

ti—imtijieds‘iuisc. . OO

Thomas “a good candidate for commutation from the

psychological perspective.” App. 649a. A second 1993

psychiatric report added there was no “psychiatric

contraindicatior. [to commutation]” and that Thomas “has

developed __ significantly during his .years’. of

imprisonment.” App. 650. In December 1999, Thomas

sought a writ of habeas corpus in the United States

District Court.

Again, the Board denied his parole in 2000, during the

pendency of these habeas corpus proceedings. The Board

gave as its reason the cryptic statement that it “has

determined that the mandates to protect the safety of the

public and to assist in the fair administration of justice

cannot be achieved through your release on parole.” App.

439. Again, all voting members of the Department of

Corrections institutional staff, including his counselor

and work supervisor, unanimously recommended his

parole. App. 624. Again, he demonstrated a continued

record of good conduct in prison and participation in sex

offender therapy and all other programming prescribed by

the Department of Corrections. Nonetheless, the Board

denied parole. Again, the Board advised Thomas to

maintain his Department of Corrections recommendation

as a precondition for consideration at his 2002 parole

hearing. But, in 2000 the Board revived its 1997

recommendation that Thomas should undergo sex

offender therapy as a suggested pre-condition for release.

Handwritten notes again show that the Board may have

been concerned that he was in a “denier” group —

although, once more, no mention of this concern is made

in the formal Board Decision. The lack of admitter

therapy is simply stated in a neutral, non-critical way in

the Guidelines worksheet. App. 415.

Finally, although the decision-making guidelines had

assigned Thomas a favorability score that counseled in

favor of parole on both the 1997 and 1998 applications,

-38a-

the 2000 decision, despite no evidence of changes in his

situation, reached a different outcome. App. 414. The

Board interviewer classified Thomas as a habitual

Substance abuser on the Guidelines form, which

increased Thomas’s risk score by 3 and placed him in an

unfavorable category for release. The Board did not

indicate why it made this material alteration to what

appears to be a boilerplate risk-assessment protocol.

Thomas apparently did have a record of alcohol abuse

prior to his incarceration in 1964 (for which he attended

Alcoholics Anonymous while in prison) but it is unclear

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

relevant factor, it had not been considered on his two

prior Guidelines evaluations.

Moreover, the Guidelines were modified since his last

application, with a score of 2 now added to Thomas’s

overall score as a result of “Victim Injury” (the past two

evaluation forms assigned only a score of “1" for Victim

Injury). As a direct result of these changes Thomas’s

score ascended to nine, placing him in a category

exceeding seven. Therefore, the Guidelines

contraindicated parole. In summary, the Board denied

Thomas parole a total of three times, in 1997, 1998 and

2000, although he complied each time with all of the

Board’s recommendations, except for his continued

enrollment in the deniers group. The Board denied parole

to Thomas alone of all 266 prisoners whose life sentences

had been commuted.

In Thomas’s current habeas petition, he alleges that

the Board denied his parole in violation of the Ex Post

Facto clause, by applying retroactively the revised

December 1996 parole statute. According to Thomas, he

had a constitutional expectation that his parole petition

would be evaluated under the laws in effect when he was

convicted. The District Court agreed that the Board

violated the Ex Post Facto clause by applying the 1996

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statutory mandate. However, the Court declined to rule

outright that Thomas would have been paroled under the

prior rule; instead, it remanded the case to the Parole

Board to rehear the matter under the pre-1996 laws.

Thomas also asked that the District Court order his

release on the grounds that his due process rights were

violated. The District Court held that, although Thomas

had complied with all the seeming prerequisites for relief

as prescribed by the Board, the presence of any evidence

sufficient to show that the Board based its decision on a

rational and good faith exercise of discretion, vindicated

its action. Thus, the District Court concluded, there was

no due process violation. See Mickens-Thomas v. Vaughn,

217 F.Supp.2d 570 (E.D.Pa.2002).

The District Court remanded the case to the Board to

apply its pre-1996 parole policies to the Thomas petition.

The Board appealed, and Thomas cross- appealed, on the

denial of his due process claim and on the court’s failure

to grant him release outright as a result of the Ex Post

Facto violation.

II. Ex Post Facto Violation

A. The New Parole Policy of 1996

The Ex Post Facto clause of the United States

Constitution applies to a statutory or policy change that

“alters the definition of criminal conduct or increases the

penalty by which a crime is punishable.” California Dep’t

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

A new law or policy violates the Ex Post Facto clause (1)

when it is retrospective, i.e., when it “appl[ies] to events

occurring before its enactment,” and (2) when it

“disadvantagels] the offender affected by it.” Weaver v.

Graham, 459 U.S. 24, 29 (1981); see Coady v. Vaughn,

251 F.3d 480, 488 (3d Cir.2001). As to the first criterion

for an Ex Post Facto violation, the Board strenuously

-40a-

argues in its brief (p. 14) that “the 1996 amendments ...

did not change the Board’s standards for determining

parole.” First, it asserts that Pennsylvania’s statement of

public policy for parole, 61 P.S. § 331.1, refers to the

supervision of parolees, rather than to conditions of

release.

The foregoing argument has little merit. The statute

unequivocally has been interpreted by Pennsylvania

courts to express broad and general aspirations of

Pennsylvania’s parole policy. See Stewart v. Pennsylvania

Bd. of Probation and Parole, 714 A.2d 502, 508

(Pa.Commw.Ct. 1998) (“Section 1 of the Parole Act, 61 P.S.

§§ 331.1, ... enunciates the state’s public policy

concerning parole....”). The essential matter before us is

not whether the statute on its face pertains to parole

decisionmaking, but whether, in practice, the new

language has altered the fundament for reviewing parole

applications. See Garner v. Jones, 529 U.S. 244, 256

(2000). We look beyond the language of the statute and

examine the Board’s pronouncements of policy and its

public statements that shed light on the interpretation of

its statutory mandate. These suggest that after 1996 the

Board gave foremost importance to the public safety

factor. This is confirmed by the report in the September

20, 2000 Harrisburg Patriot-News, when then-Board

chairman William Ward observed that legislative changes

around 1995 recast the Board’s mission to put public

safety first.

The Board also asserts that its policy historically has

placed equal emphasis on the interests of the inmate and

the interests of public safety, and it points in its brief to

us to statutory language in effect in the 1940s to prove

this point: “whenever in its opinion [1] the best interests

of the convict justify or require his being paroled and [2]

it does not appear that the interest of the Commonwealth

will be injured thereby,” a prisoner will be granted parole.

-4la-

Board Brief at 11-12. The Board correctly notes that the

potential risk to public safety in granting parole has

always been a consideration in the decisional process. It

claims that other provisions of the parole statute have,

under both the earlier and the current versions, required

that the Board “consider the nature and circumstances

of the offense committed, [and] the general character and

background of the prisoner.” 61 P.S. § 331.19.'* However,

to state that public safety was always a consideration

does not mean that the Board gave it the same weight

after 1996 in the decisional equation.

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

'3The provision provides in pertinent part:

It shall be the duty of the board ... to consider the nature

and circumstances of the offense committed, any

recommendations made by the trial judge and prosecuting

attorney, the general character and background of the

prisoner, participation by a prisoner who is serving a

sentence for a crime of violence as defined in 42 Pa.C.S. §

97 14(g) (relating to sentences for second and subsequent

offenses) in a victim impact education program offered by

the Department of Corrections and ... the testimony of the

victim or the victim’s family.... The board shall further

consider the notes of testimony of the sentencing hearing,

if any, together with such additional information regarding

the nature and circumstances of the offense committed for

which sentence was imposed as may be available. The

board shall further cause the conduct of the person while

in prison and his physical, mental and behavior condition

and history, his history of family violence and his complete

criminal record ... to be reported and investigated.

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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.

The Pennsylvania courts have suggested that the

1996 public safety directive has caused the Board to

review the petitions of violent offenders with redoubled

scrutiny: “As a result [of statutory and policy changes in

1996], violent offenders are subjected to a more stringent

standard of review for parole eligibility than nonviolent

offenders. The purpose behind the classification and the

disparate treatment between the violent and nonviolent

offenders is the protection of public safety.” Myers v..

Ridge, 712 A.2d 791, 799 (Pa.Commw.Ct.1998).

Furthermore, the policy change around 1996 took place

in the ambience of numerous policy statements that shed

light on the Board’s interpretation of its statutory

mission: it clearly viewed its statutory mandate to require

special emphasis on public safety.

Our attention is directed to the 50th Anniversary

Report ofthe Board (1991), which states in its concluding

paragraph that “protection of society” is the Board’s

“primary goal.” App. 187. Read in context, however, this

passage applies to the board’s supervision of parolees.

This same passage provided that “conditional release”

permits the Board to meet its goal of protecting society.

An earlier section of the document states that “[t]he

immediate goal of parole supervision is the protection of

society,” by closely supervising the parolee and setting

“conditions” for continued release, pertaining to work,

health, education or other needs, that ensure smooth

reintegration and, hence, the public safety. App. 185

(emphasis added). Upon analyzing this language, it is

obvious that the Board meant in this report that

“conditional release,” with fixed conditions for continued

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a Oe ee

parole, is designed to safeguard the public after a parole

has been granted. Thus, this 1991 anniversary report

sheds no light on the post-1996 Board treatment of

“public safety” as a factor before parole is granted.

The statistical evidence is quite staggering here, and

strongly confirms the change in policy in 1996: of the 266

historical instances of commuted sentences on which the

Board has kept records, all were granted parole on the

first or second application. Many, if not most, of these

original sentences were for violent crimes. Doubtless,

these earlier Parole Boards spanned a wide spectrum of

political and penological philosophies. Yet, 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. The

Thomas application is distinguished from these 266 cases

only by the intervening policy directive of 1996,

emphasizing public safety.

In addition to these statistics, substantive

declarations of Board policy strongly support the

proposition that, after 1996, the Board applied a new

standard. A 1996 report by the Legislative Judiciary

Committee strongly exhorted the Board to reform its

parole policies by placing greater stress on public safety.

A 1997 self-assessment by the Board specifically noted

that during the 1995-1997 period, public safety became

the Board’s new “foremost concern.” The new Guidelines,

implemented between 1998 and 2000, placed more

weight on “Victim Injury.” 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.

These declarations stand in bold contrast to the

pre- 1996 policies, which commanded that the Board give

-44a-

weight to various factors in the parole process, such as

Department of Corrections staff recommendations,

educational accomplishments, job training, and therapy

programs. This factor-based approach strongly suggests

that dispositive weight should not be given to any one

factor.'* Pre-1996, release upon eligibility for parole was

presumed, and any decision to deny parole based on

public safety considerations had to be supported by

specific reasons, which outweighed those factors favoring

release. Prior to 1996, a Board recommendation contrary

to the Guidelines required that the Board have

“appropriate reasons for [its parole denial] decision.”

Because the pre- 1996 Guidelines already factored in the

risk to public safety vis-a-vis relevant recidivism

indicators, the Board after 1996 could not give added,

and certainly not exclusive, weight to public safety in

overruling the Guidelines.

We conclude, then, 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 could not

have been the basis of granting or rejecting parole. Policy

declarations in and after 1996 demonstrate that Board

stance shifted and that, indeed, post- 1996 considerations

The Guidelines themselves embody this philosophy. They

are designed so that: “No single reason-for-refusal will justify

the denial of parole: a preponderance of negative reasons will

countervail release.” App. 253.

-45a-

of public safety became the dominant concern of the

Board.

B. Application of New 1996 Policy to Thomas

The possession of a discretionary component in a

parole policy does not per se exempt it from

constitutional scrutiny. “The presence of discretion does

not displace the protections of the Ex Post Facto clause.”

Garner, 529 U.S. at 253; cf. Winsett v. McGinnes, 617 F.2d

996, 1007 (3d Cir.1980) (en banc) (holding that prison

officials’ “discretion must be exercised consistently with

the purpose and policy” governing early release program

to satisfy due process). A Parole Board policy, although

partly discretionary, is still subject to ex post facto

analysis when there are sufficiently discernible criteria to

suggest to a reviewing body that the new retroactive

policies are being applied against the offender’s interest.

In this case, as in our Winsett decision, a prison

release authority is not permitted to circumvent its

constitutional obligations merely because it has some

discretion: “[I]t is by no means clear that the [relevant

authorities] may, under the rules, invoke any criterion

[they] choose[ ].” Winsett, 617 F.2d at 1006. Rather, the

Board has, by both its past decisions to grant parole for

commuted sentences, and by its formal declarations of

policy, expounded discernible parameters that govern its

discretion. See id. Here, the changes in parole policy can

be shown to have been applied to Thomas’s parole

application, even though the Board possessed some

discretion both before and after the 1996 policy change.

Although we are unable to express precisely what

moved the Board to deny Thomas’s petition, there is

significant evidence that it acted upon policies that were

established after Thomas’s crime and _ conviction.

Although discretion inheres within the Board’s parole

-46a-

authority, and new Board members May Carry new ideas

regarding the exercise of that discretion, and old Board

members may change their mind in the light of new

considerations, Thomas is nevertheless entitled to have

the Board give genuine consideration and due regard to

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

We agree that the Board is entitled to learn from past

experiences and mistakes. Board Brief at 17. This is so,

just as a legislature might determine sentences for some

crimes are too light and order judges to weigh certain

factors more heavily in rendering a sentence. That a

Board or legislature may learn from experience does not

mean that those who were sentenced at an earlier

juncture may now be more severely re-sentenced in the

light of newly-found wisdom. This is precisely what the

Ex Post Facto clause prohibits. Under the Board’s

reasoning, a 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.

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.

Inference instructs us that the Board inappropriately

relied on policies implemented in 1996, rather than the

parole policies in place at the time of Thomas’s crime and

conviction.

In its briefs to this court, the Board purports to have

reasons apart from public safety for its Thomas decisions.

Those reasons appear to be asserted primarily as a post

hoc defense to the allegations made in these proceedings.

-47a-

The Board argues that Thomas’s “instant assault offense”

and “very high assaultive potential,” both functions of the

nature of the past crime, were not the primary bases on

which the decision to deny parole was made. It claims

that. upon reading Thomas's file, “it is easy to see why

the Board found the [arguments against releasing

Thomas] so persuasive.” Board Reply Brief at 21. It

asserts that numerous reasons were considered in

support of its decision, including an unfavorable

recommendation from the District Attorney, lack of sex

offender therapy, and questionable psychological

evaluations. However, these were not bona fide

considerations in the decisions to deny parole. Our

analysis shows that the primary basis for the parole

denials was the risk of potential harm to public safety.

Under the Guidelines, Thomas was entitled to parole

at his hearings in both 1997 and 1998. He is the only

prisoner out of 266 commuted sentences who was not

granted parole in his first or second application. The

voting members of the Department of Corrections staff

unanimously recommended Thomas for release at each

application. 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.

-48a-

Thus, reviewing the pre-1996 documents pertaining

to parole, it becomes evident that, although the risk of

potential danger to the public has always been a factor,

it became the controlling feature of the Board’s decision

after 1996. The Board defaulted in its duty to consider

factors other than the underlying offense and risk to

public safety; it has failed to address any of the factors

favoring release.

C. Board Decisions

In 1997, after the Department of Corrections denied

Thomas pre-release, soon thereafter the Board denied

Thomas parole on the very ground that he had not

undergone a pre-release phase. The statutory pre-release

requirement was adopted after Thomas’s sentence was

commuted. The Board later conceded in a state court suit

initiated by Thomas that the law concerning the

pre-release requirement should not have been applied to

him. The Board’s actions in this respect conveniently

disregarded the Ex Post Facto clause to support its

decision to deny parole.

We have carefully analyzed the Board’s reports of

disposition of Thomas’s parole applications. The Board’s

1997 and 1998 Decisions denied Thomas parole on the

basis of several summary factors, including the severity

of his underlying offense, his potential for future

assaults, a_i prior assault offense, adverse

recommendation from the District Attorney,’® and

Thomas’s need for counseling and treatment. The Board

also set forth suggestions, presumably to improve

Thomas’s next effort for parole, including participation in

prescriptive programming, good prison conduct, sex

'SWe discount the 1997 Board Decision’s reliance on the

District Attorney’s recommendation because it does not

reappear on any later Board Decisions.

-49a-

offender therapy, and positive psychological evaluations.

All of these appear to have been met prior to the 1997

and 1998 decisions: All voting officials from the

Department of Corrections recommended parole in both

1997 and 1998; he had complied with all prescriptive

programming; a 1993 psychological and a psychiatric

evaluation, made in anticipation of his commutation

hearing, recommended release. The 1998 Department of

Corrections Vote Sheet showed “No Psychological

Contraindications” to release; he had participated in sex

offender therapy; he had job training; and he had a

post-release support network in place. Rather than

explain in what manner its recommendations had not

been met, or what additional steps needed to be taken, or

whether some insurmountable barrier existed to

Thomas’s parole, the Board essentially reiterated the

same recommendations for improving Thomas’s parole

candidacy in each subsequent Decision.

Given its indifference to Thomas’s efforts to improve

nis 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. However, the Board, in its briefs to this court,

suggested it had other reasons than public safety, and

submitted that Thomas had only participated in “denier”

sex offender therapy, rather than “admitter” therapy; that

is, he was engaged in a form of therapy for offenders who

refused to admit their crimes. This concern did not

appear in the formal Board Decisions and, therefore,

must be disregarded.

The Board’s own internal notes shed light on its

deliberations in this regard. We recognize that the Board

is not required to share its specific reasons for denying

-50a-

parole. The Board’s internal files in 1997 and 2000,

however, merely noted, in a neutral way, that Thomas

participated only in denier therapy and denied guilt for

his crime without further comment or discussion of how

this factor may have outweighed others favoring release.

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

is allotted to provide unique reasons for departing from a

Guidelines recommendation. Instead, we have only the

terse Board Decision and the Board’s handwritten notes

from which to glean its rationale for the parole denial.

In contrast to the scrawled notation of Thomas’s lack

of admitter therapy in its 1997 and 2000 worksheets, the

Board underscores this point now in its briefs to us.

Similarly, it discusses in its briefs how the benefits of the

inmate sex offender therapy program are not fully

realized, unless the inmate admits guilt for his or her

crimes. However, the orginal, Official deliberations

showed that the Board failed to consider these matters at

the times it reviewed Thomas’s applications.

Moreover, the recommendation that Thomas receive

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. This casts still more doubt on the genuineness of

the concern. It is also not clear that the Board’s renewed

concern over Thomas’s “denier” therapy was ever properly

communicated to Thomas, given that the reasons for

denial in the Board Decision are vague and boilerplate.

They nowhere mention the admitter-denier issue.

According to its briefs, the Board, in its 1998 and

2000 Decisions, may have relied on a 1996 psychological

report that showed “evidence of possible sexual

-5la-

preoccupation and psychosexual immaturity,” as well as

an “antisocial personality.” Board Reply Brief at 26.

However, there is no evidence that the report

recommended against release, and the Board never

weighed explicitly the report against the balance of all the

other favorable recommendations for release by

counselors and corrections staff. No reference was made

to two 1993 pre-commutation reports by a psychologist

and a psychiatrist, respectively, both strongly

recommending commutation.

Furthermore, a 1999 psychological report, although

acknowledging the negative factors cited in the 1996

report, never expressly recommended against release. On

the contrary, the report made suggestions as to how to

structure Thomas’s parole orice granted. App. 623.

Meanwhile, a prison psychologist, on the 1998

Department of Corrections Vote Sheet, recommended

release and noted that there were “no psychological

contraindications” against release. The Board’s own

worksheet in 1998 merely noted that psychological

evaluations showed Thomas to be an “average risk

candidate.”

In addition, many of the factor: listed in the 1997 and

1998 Decisions were automatic designations. For

example, “very high assaultive behavior potential” is

assigned to a parole applicant whenever an applicant is

convicted of a sexual offense. There is no indication

whatever that the Board seriously contemplated the

gravity of the public safety threat; nor is there any

evidence that the Board followed its own procedures by

pointing to factors independent of the Guidelines that

counseled against granting parole.

In 2000, the Board again denied Thomas’s parole, this

time because “the mandates to protect the safety of the

public and to assist in the fair administration of justice

-52a-

cannot oe achieved through your release on parole.”

Although, again, it suggested sex offender therapy,

favorable recommendations from Department of

Corrections officials, prescriptive programming and

continued good conduct, the decisive element of the

Board’s decision protecting “the safety of the public.”

In 1997 and 1998 the Guidelines prc*ocol resulted in

a conclusion that Thomas should be released, but he was

not. In 2000, the protocol recommended against parole.

The data entered into the chart for past substance abuse

changed, and thus he was then classified as a habitual

offender with history of past abuse. The record shows

some alcohol abuse by Thomas, but no drug use.

Moreover, this reclassification on the Guidelines

worksheet increased his overall objective score and

placed him in the range of cases where the Guidelines

recommended against parole. There is no evidence that

alcohol 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.*®

Most forcefully, the 2000 decision report highlighted

the Board’s new rationale for denying parole, a rationale

which implicitly pervaded all of the Board Decisions on

Thomas’s application: it bluntly stated that Thomas’s

release interfered with its mission “to protect the safety

of the public.” Aithough public safety had been a part of

the Board’s pre-1996 criteria, it had never been an

“Also, the Guidelines themselves changed, as of 2000, and

victim injury was given a higher value (two points instead of

one), militating more strongly against parole. This new

valuation was reflected in Thomas’s aggregate Guidelines-based

score. This further evidences the advent of new policies and

emphasis on public safety on the part of the Board.

-53a-

exclusive, or even the most important, criterion. However,

the Board does not attempt to offer any other explanation

for its 2000 decision, while, in 1997 and 1998 it

summarily recapitulated: “assaultive offense,” potential

for “assaultive behavior,” and “victim injury” as reasons

for its parole determinations. The reliance on these

factors, and its failure to credibly consider any other

factors, leads us to the ineluctable conclusion that the

Board relied almost exclusively in 1997, 1998 and 2000

on the nature of the past offense and the potential danger

to public safety.

The Board protests that the “assaultive potential”

designation does not “require an automatic parole

refusal.” On the record before us, however, we do not

agree. The Guidelines did not show him to be a recidivism

risk. The Board did not consider seriously psychological

contraindications or any other non-Guidelines factor that

might have militated against parole. The Board’s denial of

Thomas'’s"parole, despite its claims that the decision was

the result of the discretion vested in it by the pre-1996

policies, exceeded any reasonable interpretation of the

applicable policies. It appears that the Board was

applying the new policy. Now, belatedly, in its briefs, the

Board seeks to eviscerate the grounds for its decisions

with a gloss of compliance with the pre-1996 policies.

This will not do.

D. Implications of Winklespecht

Since oral argument in this matter, the Board has

called to our attention the recent Pennsylvania Supreme

Court decision, Winklespecht v. Pennsylvania Board of

Probation and Parole, 813 A.2d 688, 2002 WL 31898105

(Pa.2002). The Board cites this case in support of the

proposition that § 331.1's concern with “protect[ing] the

safety of the public,” added “nothing new to the parole

process and [has] always been [an] underlying concern|].”

-54a-

Jd. The Pennsylvania Supreme Court held that § 331.1

does not change Pennsylvania policy as to the criteria for

parole “[njor did the addition of this (new) language create

a new offense or increase the penalty for an existing

offense.” Focusing on the added language to § 331.1

concerning “protect[ing] the safety of the public” and

“assist(ing] in the fair administration of justice,” the court

concluded that these concepts have always been

underlying concerns.

This decision, made after the Board’s actions on

Thomas's parole, came too late to alter the Board’s view

of the statutory amendment on the outcome of this case.

Not having the benefit of the Supreme Court decision, the

evidence before us shows that the Board interpreted §

331.1 to mandate foremost the consideration of public

safety. The Board mistakenly construed the 1996

Statutory change to signify a substantive change in its

parole function. See Gall v. Parker, 231 F.3d 265, 304

(6th Cir.2000). As we noted previously, a public

Statement of the Board chairman and Board policy

declaration confirm this substantive change in Board

policy. The Pennsylvania Commonwealth Court too

understood the 1996 amendment to enact a substantive

change in Board policy. See Stewart, 714 A.2d at 508;

Myers, 712 A.2d at 799. The Board’s actions and policy

pronouncements demonstrate a marked added weight on

public safety concerns, uninfluenced by the subsequent

Court interpretation of the statute.

E. Adverse Impact of Retrospective Policy on Thomas

As to the second Ex Post Facto criterion, that the

change must adversely affect the offender, the Board

argues that Thomas, having been sentenced to life, “had

no legitimate expectation of ever being paroled.” Board

Brief at 10-11. It notes that, during the 1970s, only 10%

of life sentences were commuted and paroled. That figure

-55a-

diminished to less than half a percent in the 1990s. The

Governor’s power to grant commutation was in his

abso.ute discretion, and thus, according to the Board,

Thomas's eligibility for parole was entirely speculative.

The Board does not dispute that the possibility of parole

at sentencing based on some explicit criteria gave rise to

a liberty interest. Hence, the procedures for reviewing

parole applications must be constitutionally sound.

Gamer held that the Ex Post Facto clause prohibited

the application of post-conviction laws to prisoners that

would result in a significant increase in the chances of

prolonged incarceration. 529 U.S. at 251. Prisoners are

entitled to know the range of punishments available at

the time of sentencing, and during the adjudication of

their case, so that they can plea bargain and strategize

effectively: The Ex Post Facto clause “(1) ... prevents

legislatures from interfering with the executive and

judicial roles of prosecution and punishment; and (2) it

assures that legislative acts give fair warning of what

actions will be punished and the degree to which they

will be punished.” Coady, 251 F.3d at 487-88. Therefore,

an offender, prior to his conviction and sentencing, is

entitled to know not only his maximum possible

punishment, but also his or her chances of receiving

early release, since this too is a relevant factor in the plea

bargaining calculus. An adverse change in one’s

prospects for release disadvantages a prisoner just as

surely as an upward change in the minimum duration of

sentence.

The possibility of commutation existed at the time of

Thomas’s conviction and sentence. The relevant criterion

for determining the applicability of ex post facto analysis

is the effect of new policies on “eligibility for reduced

imprisonment,” rather than any fixed guarantee of

release. Lynce v. Mathis, 519 U.S. 433, 445 (1997)

(emphasis added). Therefore, a sentence that contained

-56a-

7

|

:

the right to parole consideration would give rise to a

constitutional expectation that the parole guidelines

extant at the time of the crime would be applied. See

Garner, 529 U.S. at 250. Eligibility for a commutation of

a life sentence entails the possibility of parole, albeit a

more distant possibility than for sentences that carry the

possibility of parole ab initio. It also gives rise to the

expectation that the parole criteria in effect at the time of

the crime will be applied.

The Board contends that there was never a

“significant” possibility, given the unlikelihood of

commutation, that Thomas would ever be paroled.

Garner, 529 U.S. at 256. Indeed, as the Board contends,

in most cases of life sentences in Pennsylvania, parole

will never be an option as commutations are quite rare.

However, as unlikely as these initial prospects for parole

might have been, the application of the new parole

policies in Thomas’s case rendered them even more

remote. The new policy “substantially increased the

period of incarceration;” it reduced the possibilities of

ever obtaining release.

The Board’s reliance on California Dept. of Corrections

v. Morales, 514 U.S. 499, 508-09 (1995) is misplaced.

Although the parole policy change in Morales wrought a

small change in the average duration of a prison

sentence, the change was held to be too minuscule to rise

to a constitutional violation. Morales considered the effect

of a procedural change in parole law, which provided for

a greater wait-period between first and second hearings.

Id. at 507. Here the substantive criteria for parole release

have changed.

Lynce v. Mathis set forth a key distinction between the

Morales case and this petition. In Lynce, a law in effect at

the time of conviction provided that if a prison population

reached approximately 98% of its Capacity, good conduct

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credits needed for early release could be acquired at an

accelerated pace. The law was changed during the

prisoner’s sentence, and his accelerated credits, earned

during a time of over-98% prison capacity, were cancelled

and parole denied. 519 U.S. at 438-39.

The Lynce prison officials argued that, at the time of

conviction, it was entirely speculative whether the prison

would become overcrowded during the petitioner’s

incarceration, and thus he was excluded from ex post

facto protection under the holding in Morales. However,

Lynce distinguished Morales, because there was no

evidence in Morales that the change affected the

petitioner’s own sentence detrimentaily. Lynce, 519 U.S.

at 447. In Lynce, the population did exceed 98% during

petitioner’s incarceration, and by his own conduct the

prisoner achieved enough credits for good behavior, so

that he became eligible for release under the old rules.

-The change in policy had the effect of increasing the.

punishment in his individual case and thus violated ex

post facto. Id.

Thus, under Lynce’s reasoning, the parole change

substantially impacted Thomas in violation of the Ex Post

Facto clause. Moreover, Thomas is entitled to the benefits

of his good behavior in prison; the opportunity to reduce

his sentence through commutation, no matter how

speculative, existed at the time of Thomas’s crime.

Thomas successfully attained a commutation of his

sentence; he was entitled to corresponding reduction in

sentence. We, therefore, hold that to retroactively apply

changes in the parole laws made after conviction for a life

sentence in Pennsylvania that adversely affect the release

of prisoners whose sentences have been commuted,

violates the Ex Post Facto clause.

Ill. Thomas’s Due Process Claim

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4

5

:

+

PRE aR

Thomas argues that the Board’s handling of his

application without any real consideration of its merits,

in violation of the Board’s own procedures, offends due

process, and that this court should itself order him

released. Although the Board has not given due

consideration to the relevant factors, this can be

explained by its misguided reliance on the post- 1996

criteria. Moreover, we are exceedingly reluctant to usurp

the Board’s functions and, except in our review capacity,

substitute our own judgment for that of the parole Board.

Although there were flaws and oversights in the Board’s

consideration of Thomas’s applications, w are not

entirely convinced that the Board is unable to give

Thomas a fair hearing in light of the important

considerat.ons we have set forth in this opinion.

IV. Conclusion

Ordinarily, the Board’s decision to parole or deny

parole to a prisoner is based on the consideration of

many factors, with no one factor being dispositive. We

expect 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.

In conclusion, the Order of the District Court is

hereby affirmed, with directions to remand the matter to

the Board for further proceedings consistent with this

opinion, including a new hearing for Thomas and the

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Board’s written decision thereon within 45 days after the

mandate of this court.

-60a-

al attend tite - ”

‘

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LOUIS MICKENS- : CIVIL ACTION

THOMAS,

Plaintiff

No. 99-6161

v.

DONALD VAUGHN, et

al.,

Defendants

MEMORANDUM

BUCKWALTER, J. March 15, 2002

I. STATEMENT OF THE CASE

On September 29, 1964, the body of twelve-year old

Edith Connor was found in a narrow alley behind

petitioner’s shoe repair shop on 40" Street in

Philadelphia. The properties along 40" Street had rear

wooden fences with a door leading from the back yard

into the three-foot wide alley. In the opinion of the

Pennsylvania Supreme Court (Commonwealth v. Thomas,

448 Pa. 42, 292 A.2d 352 (1972)), the following narrative

appeared: |

The police arrived, pronounced the girl dead at the

scene and removed the body to the morgue. The body

was then examined by one Dr. Edward Campbell,

Medical Examiner and Forensic pathologist. The

deceased’s blouse had been torn and the zipper of her

dungarees (men’s style) was partially ripped off. The

dungarees were also torn at the inner seams of the

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thighs on both sides of the crotch. The crotch seam of

the deceased’s panties was likewise torn. The cause of

death was attributed to strangulation by ligature.

There were also bruises to the skin of the neck, a

broken bone on the night side of the neck and bruises

of the voice box. Tears were found in the child’s

rectum and testing ascertained the presence of acid

phosphates in the vagina.

The clothing of the deceased was delivered to the

Police Department Laboratory where brushings and

microscopic examination disclosed particles of

leather, leather dust, glue, polish, dog hairs, fiber and

chips of paint adhering to the clothing. These findings

led to the issuance of three search warrants for the

person of and premises occupied by the appellant,

which premises were located at 1109 North 40" Street

and consisted oi a shoe repair shop in the ground

floor and living quarters in the rear of the shop. The

execution of these warrants resulted in obtaining,

inter alia, paint scrapings from various parts of the

premises, specimens of leather, glue, fibers, threads

and hairs, clothing of appellant, bed sheets,

bedspreads and drapes. These specimens were

delivered to the Police Department Laboratory,

analyzed by Dr. Edward J. Burke, then the Laboratory

Director, and compared with items removed from the

deceased’s clothing. The Commonwealth’s entire case

rested upon the testimony of Dr. Burke with reference

to the similarity of the specimens.

Petitioner was convicted by a jury of first-degree

murder of Edith Connor. He was sentenced to life

imprisonment by Judge Joseph L. McGlynn, Jr. on April

23, 1971. The sentence was affirmed by the Supreme

Court of Pennsylvariia, supra.

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His subsequent pro se petition for post conviction

relief on a single technical ground that the indictment did

not use the words “kill and murder” was denied.

Commonwealth v. Thomas, Pa.Super. 408 A.2d 1148

(1979).

In 1973, a federal petition for habeas corpus was

dismissed without prejudice for failure to exhaust state

remedies (E.D. Pa. C.A. No. 73-2711).

In 1993, petitioner filed an application with the

Pennsylvania Board of Pardons.’ The four members of the

‘Article 4, § 9 of the Pennsylvania Constitution provides:

(a) In all criminal cases except impeachment, the Governor

shall have power to remit fines and forfeitures, to grant

réprieves, commutation of sentences and pardons; but no

pardon shall be granted, nor sentence commuted, except on

the recommendation in writing of a majority of the Board of

Pardons, after full hearing in open session, upon due public

notice. The recommendation, with the reasons therefor at

length, shall be delivered to the Governor and a copy

thereof shall be kept on file in the office of the Lieutenant

Governor in a docket kept for that purpose.

(b) The Board of Pardons shall consist of the Lieutenant

Governor who shall be chairman, the Attorney General and

three members appointed by the Governor with the consent

of two-thirds or a majority of the members elected to the

Senate as is specified by law for terms of six years. The

three members appointed by the Governor shall be

residents of Pennsylvania and shall be recognized leaders

in their fields; one shall be a member of the bar; one a

penologist, and the third a doctor of medicine, psychiatrist

or psychologist. The board shall keep records of its actions,

which shall at all times be open for public inspection.

Amended May 16, 1967; May 20, 1975.

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Board of Pardons, Attorney General Ernest Preate, Jr.,

Dr. Daniel J. Menniti, Warden Thomas Frame, and

Ronald J. Harper, Esq., who heard the case (then

Lieutenant Governor Mark Singel did not hear the oral

presentation), recommended unanimously that the life

sentence of petitioner, which was computed from October

15, 1964, the day after petitioner’s arrest, be commuted

from life imprisonment to a term of imprisonment of

thirty-one (31) years, nine (9) months, six (6) days to life

expiring on July 21, 1996, and if he be released on parole

in accordance with law he shall remain on parole the

balance of his life unless returned to prison for violation

of his parole.

The Board of Pardons added the following:

Mr. Thomas has served over twenty-nine years of his

sentence. He has had only five misconducts since

1971. He has continued to maintain his innocence

throughout his incarceration. He earned a Bachelor of

Arts Degree from Villanova in 1992. He completed sex

therapy and continues involvement with Alcoholics

Anonymous. Since 1987, he has worked in the Weave

Shop and has displayed excellent work habits. The

Staff, Superintendent and Commissioner all support

commutation due to the applicant’s maturity and

stability.

The members of the Board of Pardons were impressed

by the strong community support for this application.

Over two dozen individuals attended the clemency

hearing on behalf of Mr. Thomas. We are confident

that he will have the necessary support to guide him

from the structured. environment of prison to

productive living in society. We suggest a two year

post-dated minimum sentence date of July 21, 1996.

This will enable him the opportunity to take full

advantage of pre-release programs offered by the

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Department of Corrections. At the expiration of his

minimum sentence, he will have served nearly 32

years incarcerated.

On January 14, 1995, Governor Robert Casey granted

commutation as follows:

Therefore, Know Ye, That in consideration of the

promises and by virtue of the authority vested in me

by the Constitution, I have commuted the sentence of

life imprisonment of the’ said Louis C.

Mickens-Thomas from life imprisonment to the

minimum term of 31 years, 9 months, 6 days to life

expiring on July 21, 1996, so that if he be released on

parole in accordance with law he shall remain on

parole the balance of his natural life unless returned

to the correctional institution for violation of parole

and that the sentence of imprisonment is hereby

commuted accordingly so that he may be eligible for

pre-release consideration at the discretion of the

Dept. of Corrections. Subsequent to the date of my

signature below a conviction of a new summary,

misdemeanor or felony offense may upon a hearing by

the Board of Pardons render my granting of this

clemency null and void.

As set forth above, petitioner did not become eligible

for parole until July 21, 1996. In July of 1995, after his

commutation but before the expiration of his prison term,

an act duly passed by the legislators and applicable to

the Pennsylvania Board of Probation and Parole (hereafter

the Board) provided in part as follows:

In no case shall the board act upon an application of

an inmate whose term of imprisonment was

commuted from life to life on parole or upon an

inmate who was serving a term of imprisonment for a

crime of violence or is = inmate serving a sentence

\

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under 42 Pa.C.S. § 9712 (relating to sentences for

offenses committed with firearms) unless the inmate

has served at least one year in a pre-release center.

61 P.S. § 331.34a.

The Department of Corrections did not approve

petitioner for pre-release (Letter of June 6, 1995 - P-21).

On July 22, 1996, petitioner filed an application for

release but the Parole Board notified him that it could not

act upon his application since he had not completed one

yeer in pre-release, citing 61 P.S. § 331.34a (See

Respondent Exhibit 9 at 217, Letter to Leonard Sosnov,

Esquire dated September 25, 1996).

On November 26, 1996, petitioner filed a petition for

review in the nature of an action in mandamus invoking

the original jurisdiction of the Commonwealth Court of

Pennsylvania. See Mickens-Thomas v. Com, —

Pa.Cmwlth. —, 699 A.2d 792 (1997). In that case, the

Pennsylvania Board of Probation and Parole conceded

that 61 P.S. § 331.34a could not be applied retroactively

to petitioner. While petitioner was seeking an order

compelling the Board to parole him, the Commonwealth

Court denied that relief. Instead, it directed the Board by

order dated 8/12/97 to “consider and rule on Petitioner’s

application for parole within ten days of the entry of this

order and, in the event of denial of the application,

transmit a written statement of the reasons for the denial

to the Pennsylvania Board of Pardons ffor its

consideration of whether to accept the denial or

immediately release petitioner on parole.” Petitioner’s

November 12, 1997 notice of appeal from this judgment

was quashed by the Pennsylvania Supreme Court on

1/15/98.

Pursuant to the directive of the Commonwealth Court,

the Board considered petitioner’s application for parole

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—

re tee gee:

on August 21, 1997 and denied it. The Board asked for

an evaluation by mental health staff experienced in

dealing with sex offenders and scheduled another review

for March of 1998. Also pursuant to the Commonwealth

Court’s order, the Board transmitted a written statement

of its reason as follows: “Assaultive instant offense. Very

high assaultive behavior potential. Victim injury.

Unfavorable recommendation from the District Attorney.

Conviction of prior assault offense.” With regard to the

latter, stipulation number 2, see infra, reads: “In 1945,

Mr. Thomas was charged with rape when he was 17 years

old. The rape charge was dismissed and a wayward minor

charge was substituted. A wayward minor charge is not

an adult conviction but a juvenile adjudication, for which

Mr. Thomas was placed on probation.”

On September 18, 1997, the Pardon Board by a vote

of 3-2 concurred in the Board’s action denying parole.

The Pardon Board at this time was composed of

Lieutenant Governor Mark Schweiker, Attorney General

Michael Fisher, Warden Richard Gigliotti, Dr. Daniel

Menniti and Thomas Harper, Esquire (See Stipulations,

No. 4).

On October 29, 1997, petitioner filed an application

for leave to file original process with the Pennsylvania

Supreme Court, along with a petition for writ of habeas

corpus seeking his immediate release from prison. In a

per curiam order entered January 28, 1998, the court

allowed petitioner to file original process and summarily

denied the habeas petition. See Mickens-Thomas v.

Vaughn, No. 158 E.D. Misc. Docket 1997.

On March 30, 1998, the Board again denied

petitioner’s request for parole. The reasons given were:

“Assaultive instant offense. Very high assaultive behavior

potential. Victim injury. Your need for counseling and

treatment.” (Respondent’s Exhibit 9 at 28). This action

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was taken even though petitioner was in full compliance

with the Board’s stipulations from the August 1997

hearing and had “full staff support” of the Department of

Corrections.

A Review Summarization Report showed that

petitioner had complied with the Board’s stipulation

under the August 21, 1997 order. Petitioner remained

free of misconducts, was recommended for release by the

Department of Corrections and was in full compliance

with the treatment programs. (See P-5 (c}(e)).

Once again the Board scheduled another review for

during or after March 2000. It forwarded the reasons for

its decision to the Pardons Board which on April 21, 1998

concurred with the decision of the Board. (Respondent’s

Exhibit 10 at 232).

Petitioner filed the petition now before the court on

December 6, 1999. While this litigation was pending, the

Board, on March 9, 2000, once again denied parole and

scheduled review for March of 2002. The following written

stipulation has been entered into by the parties:

Stipulations

Both parties reserve the right to argue that the

following information is irrelevant and should not be

considered by the Court. Should the Court ultimately

decide that the information is relevant and

admissible, the parties stipulate that the following

facts are true:

1. Mr. Thomas has not had any misconducts since

1990 but has incurred all of the misconducts listed on

Exhibit R-1.

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2. In 1945, Mr. Thomas was charged with rape

when he was 17 years old. The rape charge was

dismissed and a wayward minor charge substituted.

A wayward minor charge is not an adult conviction

but is a juvenile adjudication, for which Mr. Thomas

was placed on probation.

3. Records have been located for 287 inmates

whose life sentences were commuted between 1942

and the present. More than 287 life sentences were

commuted during that time period, but their records

could not be located by either the Board of Pardons or

the Board of Probation and Parole. In each case of

these 287 cases, the Governor commuted the inmate’s

minimum sentence from life in prison to a specified

term of years, establishing a specific date on which

that inmate would be eligible for parole. The records

also indicate when 266 of those 287 cases were

granted parole - 259 were granted parole on their first

application; seven were denied parole on their first

application but subsequently granted parole. For

those seven inmates, the parties stipulate to the

information attached as Exhibits R2 through R8. Of

the 266 inmates whose release dates are known, 228

were paroled between 1971 and 1995.

4. From January 1, 1997 until today, 63 life

prisoners filed a total of 73 commutation applications

with the Board of Pardons. The Board voted not to

hold a public hearing on 69 of those applications; the

Board granted a hearing on the remaining four

applications. Three of those public hearings have

already been held, and the Board ultimately voted not

to recommend commutation. The fourth public

hearing has yet to be scheduled.

When the Board of Pardons concurred in the Parole

Board’s decisions not to release Mr. Thomas in

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September 1997 and March 1998, the Board of

Pardons was comprised of Lt. Governor Mark

Schweiker, Attorney General Michael Fisher, Dr.

Daniel Menniti, Warden Richard Gigliotti, and Thomas

Harper, Esquire. On both occasions, Schweiker,

Fisher and Gigliotti voted to concur with the Parole

Board’s decision, whereas Mr. Harper and Dr. Menniti

voted against concurrence.

During their tenure on the Board of Pardons, Lt.

Governor Schweiker and Warden Gigliotti never voted

in favor of recommending commutation of a life

sentence. As of today, Attorney General Fisher has

not yet voted in favor of recommending commutation

of a life sentence; however, he voted in favor of

holding a public hearing on three commutation cases,

one of which has not yet been heard by the Board.

Likewise, during his tenure, Warden Gigliotti did not

vote in favor of recommending commutation of a life

sentence. However, Warden Gigliotti did vote in favor

of a public hearing in one commutation case.

5. The parties waive all objections, except for

relevance to the admission of the documents listed on

the attached list prepared by the plaintiff. (Exhibits

1-25).

6. Each time the Board of Probation and Parole

refused to parole Mr. Thomas, the decision makers all

had access to the Parole Board’s entire file, docketed

as 5308-H. Any document that was reviewed or

considered by the Board is contained in that file. The

parties waive all objections, except for relevance, to

the admission of a complete copy of that file as

redacted during discovery to replace identifying

information with a generic description of the provider

of the information (e.g. counselor, victim, etc.) (Exhibit

RQ).

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7. Each time the Board of Pardons concurred in

the Board of Probation and Parole’s refusal to grant

parole, every member of the Board of Pardons had

access to the Board’s entire file, docketed as B-427

Session July 1994. Any document that was reviewed

or considered by the Board is contained in that file.

The parties waive all objections, except for relevance,

to the admission of that file as provided in discovery.

(Exhibit R10).

8. The parties waive all objections, except for

relevance, to the admission of an affidavit, dated

December 12, 2001, by Nelson R. Zullinger, and its

attachments. (Exhibit R11, Exhibit 11A and Exhibit |

11B).

9.The parties waive all objections, except for

relevance, to the admission of respondents’ chart

entitled “Life Prisoners Released by Commutation

Compared with the Total Population of Life Prisoners

(1971 through 2001).” (Exhibit R12).

10. The parties waive all objections, except for

relevance to admission of documentation explaining

the sexual offender treatment provided by the Joseph

J. Peters Institute at the State Correctional Institute

at Graterford. (Exhibit R13).

II. STANDARD OF REVIEW

Initially, the court agrees with the petitioner’s

argument with regard to exhaustion of remedies as stated

in its opinion of September 29, 2000. Accordingly its

review of the constitutional claims is de novo.

Petitioner argues that the retroactive application of

changes in rules, guidelines, policies or statutes

-7la-

governing a discretionary parole scheme may violate the

ex post facto clause. As parole in Pennsylvania is

governed by _ statutes, regulations and _ internal

memoranda and guidelines, it follows that ex post facto

principles are fully applicable. Citing Coady v. Vaughn,

251 F.3d 480 (3d Cir. 2001), petitioner argues that as

stated therein:

[T}]wo critical elements must be present before a court

may find that criminal or penal law violates the ex

post facto clause: (1) the law must be retrospective,

applying to events occurring before its enactment; and

(2) it must disadvantage the offender affected by it. Id.

- Thus, petitioner argues, since the Board has

retrospectively applied statutory, rule and policy changes

to him, the dispositive question is whether he has been

disadvantaged by the application of changes in law.

Although the above summary is somewhat

oversimplified, petitioner’s statement of the law is

substantially correct. As an initial matter, then, the court

must determine what, if any, statutory law, rule and/or

policy changes have retrospectively been applied to

petitioner.

The Pennsylvania Probation and Parole Act of 1941

established the following policy:

The value of parole ac a disciplinary and corrective

influence and process is hereby recognized, and it is

declared to be the public policy of this Commonwealth

that persons subject or sentenced to imprisonment for

crime shall, on release therefrom, be subjected to a

period of parole during which their rehabilitation,

adjustment and restoration to social and economic life

and activities shall be aided and facilitated by

guidance and supervision under a competent and

-72a-

efficient parole administration and to the end it is the

intent of this act to create a uniform and exclusive

system for the administration of parole in this

Commonwealth. 1941, Aug. 6, P.L. 861, Section 1.

Petitioner then cites several Pennsylvania appellate

court cases standing for or at least supporting the

petitioner’s contention that release on parole and

rehabilitation under the Pennsylvania Probation and

Parole Act was viewed as consistent with the statutory

goal of protection of society. Indeed, the petitioner points

to the following conclusion appearing in the 1991 50”

Annual Report of the Board:

The Board and its staff recognize that ex-offenders

can change if given the proper opportunities with

dignity and respect. Conditional release on parole

provides the offender with the opportunity for change

which simultaneously enables the Board to meet its

primary goal of the protection of society. It is through

these efforts, and the willingness of the client to use

these opportunities in a constructive way, that the

real mission of the agency is accomplished. P-12.

The sentencing system in Pennsylvania permits the

trial judge to determine when a defendant may be

released from prison by the imposition of a minimum and

maximum sentence. A defendant may apply for parole at

the expiration of his minimum sentence. Petitioner

references a 1989 Manual of Operating Procedure in

which the Board states at 2.2 thereof: “The Board’s

intentions are not to circumvent the authority of the

sentencing court and feel that an individual should be

given every consideration for parole at the expiration of

the minimum sentence.”

In the 1991 50" Annual Report previously referred to,

it was reported that about 80% of inmates are granted

-73a-

parole at the initial review. (Petitioner Exhibit 12 at 6). By

the first quarter of 1996, the release date on prisoner’s

minimum date dropped from 80% -to 29%. See

Commonwealth v. Stark, 698 A.2d 1327, 1332 (Pa.Super.

1997).

Significantly, an amendment to the Probation and

Parole Act in December of 1996 amended the public

policy as to parole which now reads as follows:

The parole system provides several benefits to the

criminal justice system, including the provision of

adequate supervision of the offender while protecting

the public, the opportunity for the offender to become

a useful member of society and the diversion of

appropriate offenders from prison.

In providing these benefits to the criminal justice

system, the board shall first and foremost seek to

protect the safety of the public. In addition to this goal,

the board shall address input by crime victims and

assist in the fair administration of justice by ensuring

the custody, control and treatment of paroled

offenders.

Reflecting this amendment, the Board in its

1995-1997 report stated in its Mission Statement:

The Pennsylvania Board of Probation and Parole is

committed to protecting the safety of the public,

addressing the needs of crime victims; improving

county adult probation and parole services, and

assisting in the fair administration of justice by

ensuring the custody, control and treatment of

offenders under the jurisdiction of the Board.

It seems clear that the Board has adopted the policy

change made in the 1996 amendment. In this regard, a

-74a-

recent case from the Commonwealth Court of

Pennsylvania contained the following:

To further support its argument, the Board offered

that even though Voss has not been paroled, the

current public policy requires the Board to seek first

and fceremost to protect the safety of the public. While

acknowledging that the public policy as to parole

changed in 1996 from a client-centered policy

emphasizing rehabilitation to one that emphasizes

public safety, deterrence of crime and_ the

incapacitation of criminals, the Board argues that the

Section 19 standards by which an offender is reviewed

have not changed and that it employed those

standards in denying Voss’ parole application.

Voss v. Pennsylvania Board of Probation and Parole, 2001

WL 1584398 (Pa.Cmwlth. Dec. 12, 2001).

The statistical data from the state’s records presented

by petitioner tends to show that violent offenders now

may face a significant likelihood of serving more time in

prison and thus have been disadvantaged by the change

in the law in 1996.’

*The court has reviewed the exhibits which support the

following statement in petitioner’s brief:

Under the amended statute, the Parole Board has treated

violent offenders far more restrictively and has routinely

held these inmates past their minimum parole eligibility

dates. In 1997, 59% of the applications for parole of

non-violent offenders were granted, but only 31% of violent

offenders received parole. See P-8 at 0002538. During the

week of March 19, 1998 (when petitioner was considered

for parole) only 24% of violent offender parole applications

were granted, while 62% of non-violent offenders received

parole. See P-7 at 0002466. (For the entire year, 1998, 56%

(continued...)

-75a-

In the Voss case cited above; the Board argued that

the Section 19 standards by which an offender is

reviewed have not changed from the 1941 Act (which is

substantially correct although some changes not

pertinent to this argument were made). See 61 P.S.

331.21(a).

However, under the jurisprudence of this circuit (see

Coady, supra) and the Supreme Court (Garner v. Jones,

529 U.S. 244, 120 S.Ct. 1362 (2000)), if petitioner

demonstrates by evidence drawn from the state’s record

that a rule’s practical application, retrospectively, by the

agency charged with exercising discretion will result in a

longer period of incarceration than under the earlier rule,

the ex post clause is violated.

The state correctly points out that petitioner’s claim

has to be more than mere speculation. That is to say,

there must be clear knowledge that the retroactive

application of the rule increases, to a significant degree,

the likelihood or probability of prolonging petitioner’s

incarceration.

2(...continued)

of non-violent offender parole applications were granted,

while only 31% of violent offenders were paroled. P-9 at

0001647). Prior to these changes in law and policy with

respect to violent offenders, upwards 80% of all offenders

were granted parole. See supra, at 11. See also

Commonwealth v. Stark, 698 A.2d 1327, 1332 (Pa. Super.

1997) (“the release date on prisoner’s minimum date

dropped from 80% in the years from 1992-1993 to 29% in

the first quarter of 1996). Where a minimum sentence is

viewed as too lenient, it is now considered a negative factor

for parole. See P-24(a), “Truth-In-Sentencing Eligibility,” at

9 (unnumbered).

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SPINE LIMON ine N ety BF SINR 9

LOMO ER GE ASL CNA MAL IES L ERE LS IOI, DS

SENG PT PETE D YS RII RE TERY NS FINA OE GA SEINE Bt MS le RT AS

The statistical evidence of offenders charged with

crimes of violence who are now less likely to get paroled

may not be sufficiently complete as the state argues to

prove that the retroactive application of any new law, rule

or guideline of the Board has increased to a significant

degree the likelihood of prolonging a_prisoner’s

incarceration.

But those statistics cited by petitioner coupled with

the stipulations 3 and 4 in this case and the history of

petitioner’s unsuccessful application in March of 1998,

despite having seemingly complied with all prerequisites

for parole, demonstrate that the agencies responsible for

exercising discretion have retroactively applied the 1996

policy provision to petitioner, and this has increased toa

significant degree the likelihood that petitioner will be in

jail longer than if the pre-1996 policy would have been

followed. It does not follow that petitioner should now be

released. I agree with the state that what petitioner is

entitled to have is that the Parole Board consider his

application under the pre-1996 law.

Petitioner has also raised the argument that he was

denied due process rights.

First, petitioner states that since he had a reasonable

and objective expectation of release on parole, he hada

liberty interest in parole which was violated by the parole

refusal of March 19, 1998. However, this is not the case

in Pennsylvania where parole is merely a possibility, an

act which lies solely in the discretion of the Board. Like

the case which petitioner cites in support of his

argument, Greenholtz v. Nebraska Penal Inmates, 422

U.S. 1 (1979), the language and _ structure of

Pennsylvania’s Probation and Parole Act provides a

mechanism for parole that is entitled to some

constitutional protection. Petitioner has not pointed out

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how that mechanism is constitutionally defective other

than his parole was refused. That clearly is not sufficient.

Petitioner makes a more thorough and detailed

argument that he was denied substantive due process in

that the refusal to parole him was arbitrary, capricious

and fundamentally unfair. The thrust of petitioner’s

argument can be summarized from his brief at page 26:

Pennsylvania law required the Parole Board to grant

parole unless it had concluded that petitioner was not

rehabilitated and suitable for release into society. As

we have demonstrated, the Pennsylvania statutory

scheme did not permit a denial of parole based solely

on the nature of the crime or the defendant’s

pre-offense behavior. Thus, as in Greenholtz, 442 U.S.

at 10, the Pennsylvania statutory scheme involves a

“discretionary assessment of a multiplicity of

imponderables, entailing primarily what a man is and

what he may become rather than simply what he had

done.” The Parole Board has “the fact-finding duty of

determining in each case when the conditions

prescribed by the legislature for provisional release

from confinement have been complied with .. .”

Commonwealth ex rel. Banks v. Cain, 28 A.2d 897, 901

(Pa. 1942).

In this case, the statutory mandate was completely

ignored by the Parole Board. The Board’s publicly

stated reasons may appear rational, but, as we have

demonstrated, the reasons were boilerplate, based

solely on the offense committed over 33 years earlier.

The petitioner’s contention is flawed, however.

Stipulation 6 provides that each time the Board

refused parole to petitioner, the decision maker had

access to the Board’s entire file and that any document

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reviewed or considered by the Board is contained in that

file marked as Exhibit R9.

I have reviewed that entire file and it does not support

petitioner’s argument that his denial of March 1998

(which is what he is contending) was based solely on the

offense committed over 33 years earlier. Other factors as

pointed out by respondent in its brief could have been

considered by the Board to support its stated reason of

“very high assaultive behavior potential.” For example,

the report found at P-5S(f) states:

PSYCHOLOGICAL REPORT: A 3-8-96 psychology

evaluation describes an antisocial personality of

superior intellect with a history of alcoholism. Testing

indicates evidence of possible sexual preoccupation

and psychosexual immaturity. Stability score is 2.

This court cannot substitute its judgment for the

Board’s even where as here the Board’s decision is

arguably contrary to the weight of the evidence: in favor of

parole. It’s decision is not without any rational support in

the record and thus petitioner’s claim of denial of

substantive due process falls short.

Having found an ex post facto vioiation, petitioner is

entitled to relief. Both sides agree that a remand for a

further hearing before the Parole Board under

appropriate standards is the normal relief. Petitioner

argues that where the Board intentionally evaded a court

mandate or acted in bad faith, the court may order

immediate release. Here, the Board has _ neither

intentionally evaded a court mandate nor acted in bad

faith.

. An order follows.

ORDER

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AND NOW, this 15" day of March, 2002, the

petitioner’s writ of habeas corpus is GRANTED to the

extent that the case is REMANDED for a further hearing

before the Pennsylvania Board of Probation and Parole to

be held within thirty (30) days under the standards that

existed prior to the enactment of the amendment to the

Probation and Parole Act codified at 61 P.S. § 331.1.

BY THE COURT:

RONALD L. BUCKWALTER, J.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 02-2047 & 02-2213

LOUIS MICKENS-THOMAS

Appellant in No. 02-2213

V.

DONALD VAUGHN, SUPERINTENDENT;

PENNSYLVANIA BOARD OF PROBATION AND PAROLE;

THE PENNSYLVANIA BOARD OF PARDONS; THE

ATTORNEY GENERAL OF THE STATE OF

PENNSYLVANIA

Pennsylvania Board of Probation and Parole

Appellant in No. 02-2047

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

Present: BECKER, Chief Judge, SLOVITER, SCIRICA,

NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY,

AMBRO, FUENTES, SMITH and ROSENN, Circuit Judges.

(Filed Mar 24 2003)

“Honorable Max Rosenn, Senior Circuit Judge, was a

member of the original panel and voted as to panel rehearing

only.

-8la-

SUR PETITION FOR REHEARING EN BANC

The petition for rehearing filed by Appellant / Appellee

Pennsylvania Board of Probation and Parole having been

submitted to the judges who participated in the decision

of this Court, and to all the other available circuit judges

in active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of the

circuit judges of the circuit in regular active service not

having voted for rehearing by the court en banc, the

petition for rehearing is DENIED.

BY THE COURT:

/s/ Max Rosenn

Circuit Judge

Dated: 03/24/03

-82a- —

[Exhibit P-13]

COMMONWEALTH OF PENNSYLVANIA

BOARD OF PROBATION AND PAROLE

Fiscal Years 1993-95 Biennial Report

* * * " * *

TABLE 3

TOTAL INMATES CONSIDERED FOR PAROLE OVER

FIVE FISCAL YEARS

Fiscal Parole Paroles Percent

Year Considerations Granted Granted

1990-91 8,954 6,890 77%

1991-92 8,949 6,912 77%

1992-93 9,932 7,652 77%

1993-94 10.613 7,678 72%

1994-95 9,645 - 6,129 64%

[Exhibit P-14]

COMMONWEALTH OF PENNSYLVANIA

BOARD OF PROBATION AND PAROLE

Fiscal Years 1995-97 Biennial Report

* * * * *

TABLE 3

TOTAL INMATES CONSIDERED FOR PAROLE OVER

FIVE FISCAL YEARS

Fiscal Parole Paroles Percent

Year Considerations Granted Granted

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1992-93 9,932 7,652 77%

1993-94 10,613 7,678 72%

1994-95 9,645 6,129 64%

1995-96 10,302 3,946 38%

1996-97 15,966 6,778 42%

[Exhibit P-15]

PENNSYLVANIA BOARD OF PROBATION AND

PAROLE

PAROLE DECISION MAKING GUIDELINES

A Statement on Policy, Procedure and Philosophy

Policy is expected to reflect decision making practice in

approximately eighty percent of the decisions rendered.

* * * * *

Since the parole guidelines prescribes a decision based

on the accumulation of evidence against parole, the

decision maker must decide whether he concurs with

policy, or wishes to make an exception to policy, using

the final decision making table on page 4.

* * * * *

Thus, although discretion is structured in the decision

making guideline format, the decision maker must still

make their own judgments on individual cases. This

feature of decision making guidelines underscores the

reality that the structuring of discretion does not

eliminate it; the burden of the decision remains with the

decision maker to evaluate the merit of each case.

These guidelines have been revised four times since

inception as explicit policy for decision making. In this

way, policy remains adaptable and relevant to changing

conditions.

[Exhibit P-16]

PAROLE DECISION MAKING GUIDELINES

A SPECIAL REPORT

Prepared for

the

HOUSE JUDICIARY COMMITTEE

PENNSYLVANIA BOARD OF PROBATION AND PAROLE

FRED W. JACOBS

CHAIRMAN

By

Management Information Division

James Alibrio, Director

George Sullivan, Research

May 16, 1991

The Board’s decision making guidelines allow for

decisions outside the guideline recommendation. Recent

guideline decisions have been found 'to have a 79%

conformity rate. Some 21% of the decisions are outside

the guidelines. These decisions require written

explanation to justify the policy exception. In some

instances, the incidence of known characteristics are too

few in number to make a measurable statistical difference

in the development a guideline criterion! Consequently,

they may be excluded from the guideline not because

they are unimportant, but due to their relative rarity .

-85a-

This underscores another important aspect of guidelines:

they can not account for everything, but only those factors

which are generally prevalent in the population in need of

classification. The decision makers, armed with expertise

on exceptions, consider objectively unique but

consequential characteristics which come before them. It

is this aspect of decision making that justifies the need

for clinical assessment and decisions which deviate from

guideline assessed norms.

* * * * *

The Parole Prognosis Assessment if a statement on the

probabilities of failure for each group; they determine the

expected rate of failure but do not decide which offender

“will fail or succeed. ... The Parole Prognosis Assessment

is intended to guide the decision maker but not dictate

the decision.

9. How have the PBB’s guidelines been validated?

What “academic” or “rigorous” studies have been

conducted since their inception to validate their

accuracy and appropriateness?

The Board’s Parole Decision Making Guideline is an

active policy instrument which receives continual review

and reassessment to keep it current with changing

priorities and new conditions. The objective of an ongoing

program of research and development is to insure that

the guidelines are an accurate reflection of policy in

practice....

13. What is the rate of guidelines overrides, that is,

cases in which the Board overrides the guidelines

score bases on “subjective” review of the case? ...

-86a-

There have been two studies conducted which address

the matter of override rate. The first was completed in

May 1985...

Overall, there were 378 out of 1,657 or 23% who were

overrides or whose actual decision was contrary to the

guidelines recommendation; and 77% who were within

the guidelines. ...

The most recent study of guidelines-decision consistency

was published in June 1989....

* * * * *

The overall guidelines override rate was 317 cases out of

1,504 or 21%. The corresponding guidelines conformity

rate was 79%.

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