Opinion
Civil Action No. 03-CV-6155.
February 23, 2005
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Timothy VanHook ("Petitioner") currently is incarcerated at the State Correctional Institution at Rockview, Pennsylvania. Petitioner seeks habeas corpus relief based on alleged constitutional violations stemming from application of the parole process. The Honorable Robert F. Kelly referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's claims should be DENIED.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts contained in this section were gleaned from the Petition for Writ of Habeas Corpus, Memorandum in Support of Writ of Habeas Corpus, the Commonwealth's Response, and Petitioner's Reply in Opposition to Respondents' Answer to Petitioner [sic] for Writ of Habeas Corpus, inclusive of all exhibits.
On November 15, 1988, the Honorable Charles P. Mirarachi, of the Philadelphia Court of Common Pleas, sentenced Petitioner to serve consecutive sentences of five to twenty years for robbery and one to ten years for criminal conspiracy, giving him an aggregate sentence of six to thirty years of imprisonment. See Respondent's Answer ("Ans."), Exhibit ("Ex.") A, Pennsylvania. Board. of Probation and Parole ("the Board" or "Parole Board"), Sentence Profile. After receiving credit for time served, Petitioner's initial minimum release date was October 1, 1992; his maximum release date was October 1, 2016. See id.
On October 1, 1992, Petitioner was released on conditional parole, but he was declared delinquent effective December 19, 1994, and re-incarcerated on April 21, 1995. See Ans., Exs. B and C, Parole Board records dated Sept. 22, 1992, and March 2, 1994. In a March 18, 1996 decision, the Board determined that Petitioner should serve eight months of back time and six months for multiple technical parole violations that included: 1) failure to report and follow written instructions; 2) failure to report new arrest within 72 hours; and, 3) possession/use of drugs (cocaine). See Ans., Ex. C, p. 2-5, D; see also 37 Pa. Code § 75.4 (Presumptive Ranges for Technical Parole Violators). The Board assigned Petitioner a parole violation maximum release date of January 23, 2017, and, on April 22, 1996, reparoled him to an approved plan. See id.
The conditions were that, in accordance with an approved parole plan, Petitioner would comply with parole regulations conditions of release (detailed in Ans. Ex. D at 2) and have no misconducts. Ans. Ex. B at 1. He was also required to follow all out-patient drug treatment recommendations and instructions, sign release forms for confidential information, refrain from contacting or associating with co-defendant or victim, and pay a mo nthly supervision fee of $25.00. See id.
In addition to conditions of release item ized at n. 2, supra, Petitioner was required to submit to urinalysis testing, refrain from alcohol use and provide five letters of employment/vocational training/education inquiry. See Ans., Ex. C, p. 2-5, D. Petitioner could appeal this order to Commonwealth Court. See id. at 5.
On June 24, 2002, Police found Petitioner searching the rear seat of a vehicle with its back door open and the back passenger side window broken. See Ans., Ex. E. Petitioner admitted to using drugs and not knowing the owner of the vehicle; so he was arrested and charged with criminal mischief, a grade one misdemeanor. See id. Police detained Petitioner based on his substance abuse, prior supervision failure, the seriousness of the offense, and the recommendation of his parole officer. See id. On September 12, 2002, the Board recommitted Petitioner, as a technical parole violator, to serve twelve months of back time for his use of drugs and because he had not been amenable to parole supervision. See Ans., Ex. F. The Board's decision promised parole review in or after June 2003, if the criminal charges were dropped and if Petitioner complied "with the institution's prescriptive program requirements [without] misconducts . . . [and] participated in drug and alcohol counseling." See id. Petitioner's criminal charges were dismissed on October 31, 2002, therefore, on June 18, 2003, the Board, following an interview with Petitioner and review of his file, determined:
Petitioner did not appeal this decision within the thirty days allotted.
[Y]our best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time. The reasons for the Board's decision include the following:
Your version of the nature and circumstances of the offense(s) committed.
Your refusal to accept responsibility for the offense(s) committed.
Your lack of remorse for the offense(s) committed.
The recommendation made by the prosecuting attorney.
Your prior history of supervision failure(s).
Your interview with the hearing examiner and/or Board member.See, Decision of Bd. of Prob. and Parole dated Jun. 18, 2003, Ans. Ex. G. The Board would, however, consider Petitioner for reparole in or after June, 2005, based on the following:
Whether you have maintained a favorable recommendation for parole from the Department of Corrections.
Whether you have maintained a clear conduct record and completed the Department of Corrections prescriptive programs.Id.
Since the Board did not cite Petitioner's conduct or failure to complete prescriptive programs as a reason for recommittment, and the Board gave him identical provisos in its decision dated Sept. 20, 2002, this court assumes that Petitioner met the Board's requirements for these conditions and was simply being told to maintain his clear conduct and program participant records. See Ans. Ex. F.
Petitioner appealed this order to the Pennsylvania Commonwealth Court on August 1, 2003, asserting, inter alia,
1. That the Board's decision to refuse to release him after serving his sanction as a technical parole violator was arbitrary and capricious, violating his due process rights;
2. That applying the Parole Act, regulations, policies, and guidelines, as amended in 1996, worked to deprive him of a legal right and will significantly increase the time he must spend incarcerated, thereby violating the Ex Post Facto Clause of the United States Constitution.See VanHook v. Commonwealth, 528 M.D. 2003, Petition for Review, 2-4 (Aug. 1, 2003). On August 15, 2003, the Commonwealth Court, treating Petitioner's filing as a Motion for Writ of Mandamus, ordered the Board to file an answer. See VanHook v. Pa. Bd. of Prob. and Parole, No. 528 M.D. 2003, Order (Pa.Commw.Ct. Aug. 15, 2003), Petition for Habeas Corpus ("Pet."), Ex. B. On September 15, 2003, the Board filed Preliminary Objections, demurring to each claim; Petitioner responded on September 26, 2003. See VanHook v. Pa. Bd. of Prob. and Parole, No. 528 M.D. 2003, Preliminary Objections (Pa.Commw.Ct. Sept. 15, 2003); VanHook v. Pa. Bd. of Prob. and Parole, No. 528 M.D. 2003, Response and Opposition to Preliminary Objections (Pa.Commw.Ct. Sept. 26, 2003); Pet., Ex. D, E.
On October 6, 2003, the court sustained the Board's demurrers, since Pennsylvania courts already had rejected similar ex post facto claims in Winklespecht v. Pa. Bd. of Prob. and Parole, 813 A.2d 688, 691-92 (Pa. 2002) (holding that changes to the Parole Act did not increase petitioner's punishment, and, thus, were not ex post facto violations) and Reynolds v. Pa. Bd. of Prob. and Parole, 809 A.2d 426, 430 (Pa.Commw.Ct. 2002) (holding that amendment to Parole Act did not facially violate prescription against ex post facto laws), and a due process claim in Bowman v. Pa. Bd. of Prob. and Parole, 709 A2d. 945, 948 (Pa.Commw. Ct. 1998) allocatur denied, 727 A.2d 11223 (Pa. 1998) (holding that since parole is not a right, but rather a decision of grace lying solely within the discretion of the Board, a recommitted parole violator does not have the right to a date certain for either reparole or a reparole hearing; he is entitled only to a reparole hearing within a reasonable time after application). See VanHook v. Pa. Bd. of Prob. and Parole, No. 528 M.D. 2003, Order (Pa.Commw.Ct. Oct. 6, 2003); Pet. Ex. F. Petitioner did not appeal the Commonwealth Court order to the Pennsylvania Supreme Court.
Instead, on November 10, 2003, Petitioner filed the instant petition asserting three claims:
Ground One: Application of the Parole Act, as amended following 1996, retroactively to his sentence from 1986, violates the Ex Post Facto Clause of the United States Constitution because it "adds detriment" to his sentence;
Ground Two: By application of the Parole Process Mechanism, as amended after 1996, retroactively to his sentence, the Board has effectively removed his pre-existing parole eligibility in violation of the Ex Post Facto Clause of the United States Constitution; and,
Ground Three: The Board's determination in June, 2003, that Petitioner did not qualify for parole, violated his Due Process rights because it was arbitrary and capricious and not supported by evidence in the record.
Petitioner's stated basis for Ground One is as follows:
Amended statute, post 1996, the interpretation and/or misinterpretation thereof, retroactively applied to Petitioner is retrospective and adds detriment to his underlying sentence in violation of the Constitution of the United States. Ex Post Facto.
Pet. at 9.
The factual basis for Ground Two is that the:
Board's instrumented change and amended "Administrative Process," standards, criteria, custom, procedure, rules, policy, pronouncements, internal memorandums, Guidelines and Regulations and Practice (Parole Process Mechanism) . . . [applied retrospectively] effectively [nullify] Petitioner's Pre-Existing Parole Eligibility, setting him aside for harsher treatment where in other's previously like convictions and arrest prior to 1996 efficaciously were re-paroled without burdensome standards and processes. . . . violate U.S. Constitution Provisions, specifically the Ex Post Facto Clause. . . .
Pet. at 9-10.
The basis for Ground Three was worded as follows:
Due Process violations of the 14th Amendment surrounding the violation/revocation hearing, denial of re-parole and [enhancement] of sanction . . . [and] the record must reflect evidence to substantiate such a determination rendered by Board.
Pet. at 10.
Petitioner's stated basis for Ground One is as follows:
Amended statute, post 1996, the interpretation and/or misinterpretation thereof, retroactively applied to Petitioner is retrospective and adds detriment to his underlying sentence in violation of the Constitution of the United States. Ex Post Facto.
Pet. at 9.
The factual basis for Ground Two is that the:
Board's instrumented change and amended "Administrative Process," standards, criteria, custom, procedure, rules, policy, pronouncements, internal memorandums, Guidelines and Regulations and Practice (Parole Process Mechanism) . . . [applied retrospectively] effectively [nullify] Petitioner's Pre-Existing Parole Eligibility, setting him aside for harsher treatment where in other's previously like convictions and arrest prior to 1996 efficaciously were re-paroled without burdensome standards and processes. . . . violate U.S. Constitution Provisions, specifically the Ex Post Facto Clause. . . .
Pet. at 9-10.
The basis for Ground Three was worded as follows:
Due Process violations of the 14th Amendment surrounding the violation/revocation hearing, denial of re-parole and [enhancement] of sanction . . . [and] the record must reflect evidence to substantiate such a determination rendered by Board.
Pet. at 10.
Pet., 9-11.
Respondents argue that the petition should be dismissed for failure to exhaust. Petitioner argues and this court agrees that exhaustion would be futile in this instance, and should be excused. Hence, the merits will be determined.
II. DISCUSSION
A. Exhaustion
A district court may consider and grant habeas corpus relief only if Petitioner meets his burden of proving that he has either exhausted all state remedies available to him with respect to each discrete allegation, there is an absence of available State corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254(b). To exhaust habeas claims, a state prisoner must "fairly present" all federal claims to the highest state court. See 28 U.S.C. § 2254(b), O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); see also Picard v. Connor, 404 U.S. 270, 275 (1971) (holding that State courts should have an opportunity to pass upon and correct alleged errors.).
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State Court shall not be granted unless it appears that
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedures, the question presented.
Petitioner's mandamus action originated in the Commonwealth Court, therefore, he had the right to appeal the adverse Commonwealth Court determination to the Supreme Court of Pennsylvania. Pa. R.App. P. 1101(a)(1). Petitioner did not do so, hence, his claims are not fully exhausted. See O'Sullivan v. Boerckel, 526 U.S. at 845 (finding that a Petitioner has not exhausted state remedies if he has the right under the law of the state to raise, by any available procedure, the question presented); 28 U.S.C. § 2254(c).
Petitioner urges that exhaustion be excused under the "futility" exception. Specifically, he asserts that, the state supreme court had already decided the issues that he presented against his interests on very similar facts in Winklespecht, 813 A.2d 691-92, and Bowman, 709 A2d. 948, the cases upon which the Commonwealth relied in dismissing his petition for mandamus. See Mem. in Support of Pet. for Writ of Habeas Corpus ("Pet. Memo") 3, 5-11; Petitioner's Reply in Opposition ("Pet. Reply") 3-10; VanHook v. Pa. Bd. of Prob. and Parole, No. 528 M.D. 2003, Order (Pa.Commw.Ct. Oct. 6, 2003); Pet. Ex. F. Therefore, Petitioner contends, further state appeals would be fruitless. Id.
Respondents reiterate that Petitioner did not exercise his appellate rights in the Pennsylvania Supreme Court, citing 42 Pa.C.S. § 723 and Jackson v. Vaughn, 777 A.2d 436 (Pa. 2001) (sustaining the Board's demurrer in a mandamus challenge to the Board's decision to deny parole). Ans. at 3. However, Respondents neither addresses whether or not that right has been waived nor discuss if Petitioner's substantive rights can be now or could have been then meaningfully presented in the state courts. See Ans.
This court will "excuse" a failure to exhaust if "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(ii). A return to state court has been deemed futile when the
state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, . . .Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002) (quoting Lines v. Larkins, 208 F.3d 153, 162-63 (3d Cir. 2000)). "If it appears that the prisoner's rights have become an `empty shell' or that the state process is a `procedural morass' offering no hope of relief, then the federal courts may excuse the prisoner from exhausting state remedies and may directly consider the prisoner's constitutional claims." Lines v. Larkins, 208 F.3d 163 (quoting Hankins v. Fulcomer, 941 F.2d 246, 249-250 (3d Cir. 1991)). The facts of the instant case suggest that the state courts are ineffective to protect the rights of Petitioner.
Pennsylvania's 1941 Probation and Parole Act, Pa.S.A. 61, §§ 331.1 et seq. ("Parole Act") established the Board of Probation and Parole and delegated to it the "exclusive power to parole and reparole" all persons sentenced to two years or more of imprisonment. Id., § 331.7. In 1996, Pennsylvania's General Assembly, reacting to a well-publicized incident in which a Pennsylvania parolee was arrested for murder in New Jersey, amended the Parole Act's statutory statement of policy to expressly state that parole serves a number of functions, both for society and the inmate, but specifying for the first time that "[i]n providing these benefits to the criminal justice system, the board shall first and foremost seek to protect the safety of the public." 61 Pa.S.A. § 331.1 (emphasis supplied). In Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688, a plurality of the Pennsylvania Supreme Court held that retroactive application of the 1996 amendments to the Parole Act did not violate the Ex Post Facto Clause of the federal Constitution. Id. at 691-92.
The present statutory policy provides:
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 bo ard 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.
A few months later, the Third Circuit reached a contrary conclusion in Mickens-Thomas, 321 F.3d 374 (3d Cir. Feb. 21, 2003) cert. denied sub nom, Gillis v. Hollawell, 540 U.S. 875 (2003). In Mickens-Thomas, the Third Circuit described the parole process prior to the 1996 amendments:
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. . . . 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. . . . Moreover, the Board had to weigh all factors, militating for or against parole, and make its decision based on the totality of the factors pertinent to parole, and give appropriate weight to the interests of the inmate.321 F.3d at 386. The court noted a vast disparity in grants of parole to Pennsylvania prisoners before and after the enactment of the amended policy and concluded, therefore, that the Board's application of the 1996 amendments to persons sentenced before the effective date of the amendments posed an ex post facto problem. 321 F.3d at 386. The Third Circuit Court has applied Mickens-Thomas analysis to a number of cases. See e.g. Nolan v. Gillis, 98 Fed. Appx. 159 (3d Cir. May 18, 2004) (remanding case for resentencing, because retroactive application of parole statute amendment violated Ex Post Facto Clause); Hart v. Pa. Board of Probation and Parole, 82 Fed. Appx. 276 (3d Cir. 2003) (same); McLaurin v. Larkins, 76 Fed.Appx. 415 (3d Cir. 2003) (in light of Mickens-Thomas, remanding to the district court to order Board to conduct new hearing for prisoner using pre-1996 guidelines); Hollawell v. Gillis, 65 Fed. Appx. 809, 813-14 (3d Cir. 2003) cert. denied, 540 U.S. 875 (2003) (same) .
From 1941 to 1996, the statute 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 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.61 P.S. § 331.1 (pre-1996 version).
The Pennsylvania courts have noted that, in 1991, the Board paroled approximately 80 per cent of all inmates after they had served their minimum sentences. See Commonwealth v. Stark, 698 A.2d 1327, 1332 (Pa.Super. 1997). By 1996, that number had fallen to approximately 30 per cent. Id. The Board's own statistics demonstrate that, for the four years before the 1996 amendments, it granted on average 68.55 per cent of parole applications while, in the two years after the amendments, it granted on average only 41.75 per cent of the applications. Pennsylvania Board of Probation and Parole Annual Statistical Report 1998. The district court that first considered Mickens-Thomas noted that there was also a statistically significant difference in parole decisions specific to persons convicted of violent offenses. See Mickens-Thomas v. Vaughn, 217 F. Supp.2d 570, 578 n. 2 (E.D. Pa. 2002). In 1997, the Board granted applications for 59 per cent of the non-violent offenders who applied, but only 31 per cent of the violent offenders. Id. In 1998, those statistics were 62 per cent and 24 per cent, respectively. Id.
Several months after the Third Circuit decided Micken-Thomas, the Pennsylvania Supreme Court revisted the ex post facto issue in Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. Dec. 18, 2003). By a 4-3 vote, the court followed Winklespecht. Hall v. Pennsylvania Board of Probation and Parole, 851 A.2d 859 (Pa. 2004), cert. denied, 125 S.Ct.346 (mem.) (Oct. 12, 2004), also affirmed Winklespecht. In Hall, the Pennsylvania Supreme Court held that, "application of the 1996 amendments to the Parole Act to persons sentenced prior to their adoption does not violate the ex post facto clause of the United States Constitution," and expressly rejected the Mickens-Thomas holding that retroactive application of the 1996 Parole Act changes violated the Ex Post Facto Clause of the U.S. Constitution. Hall, 851 A.2d 865. The plurality in Hall concluded that Pennsylvania courts were bound by only United States Supreme Court pronouncements of federal law. 851 A.2d 868.
In Finnegan, the court held that the amendments to Parole Act did not violate ex post facto clause, and the parole guidelines were not laws subject to ex post facto analysis. 838 A.2d 687-89.
Notably, the Chief Justice of Pennsylvania, joined by two other members of the court, dissented. Hall, 851 A.2d at 865. While they agreed that the state court was not bound by the Third Circuit's pronouncement, they disagreed with "the majority's refusal to consider the reasoning of an inferior federal court on a question of federal law." Id. at 870. The dissenters also concluded that the State supreme court's decisions in Winklespecht and Finnegan were wrongly decided and in conflict with the U.S. Supreme Court's decisions in Garner v. Jones, 529 U.S. 244 (2000) and California Department of Corrections v. Morales, 514 U.S. 499 (1995). Hall at 869-70.
In light of the Pennsylvania Supreme Court's holdings in Winklespecht, Finnegan, and Hall, as applied to numerous similar cases, we find that the state courts are ineffective to protect the rights of the applicant because they have foreclosed substantive review of claims that retroactive application of the Parole Act amendments constitutes an ex post facto violation. Consequently, this court will excuse Petitioner's failure to exhausted his ex post facto violation claims. See Whitney v. Horn, 280 F.3d 250 (holding that Federal habeas courts will "excuse" a failure to exhaust state remedies if it is clear that petitioner's claims are barred under state law); Hollawell v. Gillis, 65 Fed.Appx. 809, 813-14 (3d Cir. 2003) cert. denied, 540 U.S. 875 (2003) (excusing non-exhaustion of Petitioner's ex post facto claim, because, inter alia, at the time Petitioner could have appealed his Commonwealth Court order, state law did not permit mandamus relief for a parole claim.); Fripp v. Meyers, 2004 WL 1699071 at 10 (E.D. Pa.) (finding that, given the decisions in Winklespecht and Hall, the District Court could conclusively say that the Pennsylvania Supreme Court would find no merit in Petitioner's ex post facto parole claims.); 28 U.S.C. § 2254(b)(1)(B)(ii). See also Allen v. Atty. Gen. of State of Me., 80 F.3d 569, 573 (1st Cir. 1996) (upholding district court's decision to excuse exhaustion and decide petitioners' habeas claims when the state's highest court had decided the identical issue on similar facts unfavorably right before petitioners could have appealed the dismissal of their cases by the lower state court).
A few days after it rejected Mr. Hall's claim, the Pennsylvania Supreme Court summarily rejected similar Petitions of five other Pennsylvania inmates stating, "AND NOW, this 1st day of July, 2004, the order appealed is affirmed. See Finnegan v. PBPP, 576 Pa. 59, 838 A.2d 684 (2003)." See Albanese v. Pennsylvania Board of Probation and Parole, 853 A.2d 1013 ( per curiam) (Pa. July 1, 2004); Saunders v. Pennsylvania Board of Probation and Parole, 853 A.2d 1013 ( per curiam) (Pa., July 1, 2004), Cox v. Pennsylvania Board of Probation and Parole, 853 A.2d 1013 ( per curiam) (Pa. July 1, 2004), and Werley v. Pennsylvania Board of Probation and Parole, 853 A.2d 1012 ( per curiam) (Pa. July 1, 2004).
The court in Allen said,
If a state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition, and there is no plausible reason to believe that a replay will persuade the court to reverse its field, then the state judicial process becomes ineffective as a means of protecting the petitioner's rights.80 F.3d at 573 (referring to decision in Thompson v. St. of Me. Atty. Gen., 896 F.Supp.220, 221 (D. Me. 1995)).
Petitioner claims, in Ground Three, that Board actions deprived him of constitutionally protected Due Process rights. The Third Circuit, in reliance upon recent Pennsylvania Supreme Court decisions, has concluded that, "a Pennsylvania state prisoner challenging the denial of parole need not file a petition for a writ of mandamus [unless alleging a violation of the ex post facto clause] in order to satisfy the dictates of exhaustion." DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005). See also Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (advising the Third Circuit that, absent a change in the parole statute, a prisoner may not appeal a denial of parole, unless the Board's actions constitute an ex post facto violation). Pursuant to the Third Circuit's directive in DeFoy, this court will consider Petitioner's Due Process claim exhausted and address the merits of each of his constitutional claims. See Coady v. Vaughn, 251 F.3d 480, 488-89 (3d Cir. 2001) (recognizing that the Pennsylvania Supreme Court's statement that, absent a change in the statutes governing parole, denial of parole would not be subject to review, left no state process available to remedy Petitioner's alleged due process injury occasioned by a parole board decision). See also Dunstan v. Chesney, 2004 WL 2203725 (E.D.Pa.) (applying the Third Circuit's holding in Coady, 251 F.3d 489 to deem a Petitioner's claim, that the discretionary action of the Board violated his due process rights, exhausted, although Petitioner did not further appeal the Commonwealth Court's order dismissing his petition for writ of mandamus).
Although this decision is based on no State corrective process being available to address the substance of Petitioner's claims, it could just as easily be disposed of under 28 U.S.C. § 2254(b)(2), which allows the District Court to deny a petition on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State. Id. Petitioner and this court note the potential contradiction inherent in the Comm onwealth's argument that Pennsylvania courts don't "review the denial of parole on procedural grounds or second guess the Board's decision" and its argument that Petitioner has a forum in the state courts to exhaust the constitutional claims involved in his parole denial. See Ans. at 5; Pet. Memo. at 6; Reynolds v. Pa. Bd. Prob. and Parole, 724 A.2d 319, 323 (Pa. 1999).
B. Merits 1. Standard of Review
In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which "altered the standard of review that a federal habeas court must apply to a state prisoner's claim that was adjudicated on the merits in state court." Stevens v. Delaware Corr. Ctr., 295 F.3d 361, 368 (3d Cir. 2002) (citing Williams v. Taylor, 529 U.S. 362 (2000) (interpreting 28 U.S.C. § 2254(d)(1)). See also Dunn v. Colleran, 247 F.3d 450, 456-57 (3d Cir. 2001) (explaining Williams). More specifically, AEDPA "placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Dunn, 247 F.3d at 456-57 (quoting Williams, 529 U.S. at 399).
Pursuant to AEDPA, a federal habeas court may overturn state court's resolution of the merits of a constitutional issue only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Hackett v. Price, 381 F.3d 281, 286 (3d Cir. 2004). Under the "unreasonable application" clause, a federal court may grant the writ if the state court identifies the correct governing legal principle from Supreme Court decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. (quoting Williams, 529 U.S. at 412-13). The appropriate inquiry under the "unreasonable application of" standard is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. (quoting Williams, 529 U.S. at 409). An unreasonable application of federal law involves more than merely an incorrect or erroneous application of federal law: "[A] federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Id. (citing Williams, 529 U.S. at 411).
The Supreme Court addressed AEDPA's factual review provisions in Miller-El v. Cockrell, 537 U.S. 322 (2003). In Miller, the Court interpreted § 2254(d)(2) to mean that "a decision adjudicated on the merits in a state court and based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the statecourt proceeding." Id. at 340. Yet, the habeas court can "disagree with a state court's credibility determination." Id. See Wiggins v. Smith, 539 U.S. 519 (2003) (rejecting state court's factual determination under § 2254(e)(1) and 2254(d)(2)). If the state court's decision based on a factual determination is unreasonable in light of the evidence presented in the state court proceeding, habeas relief is warranted under 2254(d)(2). Lambert v. Blackwell, 387 F.3d 210, 235 (3d. Cir. 2004).
Within this overarching standard, a petitioner may attack specific factual determinations made by the state court that are subsidiary to the ultimate decision. Lambert v. Blackwell, 387 F.3d 210, 235. Here, section 2254(e)(1) instructs that the state court's determination must be afforded a presumption of correctness that the petitioner can rebut only by clear and convincing evidence. Id. A petitioner may develop clear and convincing evidence by way of a hearing in federal court if she/he satisfies the prerequisites for that hearing found in 28 U.S.C. § 2254(e)(2). Id. In the final analysis, even if a state court's individual factual determinations are overturned, remaining findings must still be weighed under the overarching standard of section 2254(d)(2). Lambert v. Blackwell, 387 F.3d 210, 235-36.
2. Ex Post Facto Claims — Grounds One and Two,
Petitioner claims that application of the Parole Act of 1941, 61 P.S. § 331.1, et seq., as amended in 1996 has resulted in an unauthorized and unconstitutional enhancement of his technical parole violator's sanction, in violation of the Ex Post Facto Clause. Specifically, he asserts that the Board has injured him through its interpretation and application of the statute (Ground One), and, through its administrative process (Ground Two).
For a cond ensed version of the exact wo rding of Petitioner's claims, see nn. 6,7, supra.
The Ex Post Facto Clause of the United States Constitution "forbids the enactment of any law which imposes a punishment for an act `which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001) (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981). 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 "disadvantage[s] the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29 (1981); see Coady v. Vaughn, 251 F.3d 480, 488; Mickens-Thomas, 321 F.3d at 383-84. The possession of a discretionary component in a parole policy does not per se exempt it from constitutional scrutiny. Garner, 529 U.S. at 253; "The presence of discretion does not displace the protections of the Ex Post Facto Clause." See Mickens-Thomas, 321 F.3d 386.
The Parole Act language applied herein clearly preceded the 1996 amendments. Hence, the main question is whether its application disadvantages Petitioner. Parole Board regulations provide presumptive ranges of backtime to be served when a parolee violates a condition of parole and is recommitted as a technical violator. 37 Pa. Code § 75.3(a). Presumptive ranges of back time are intended to structure the discretion of the Board while allowing for consideration of mitigating and aggravating circumstances in reading a final decision. Id. at (b). Petitioner was detained after admitting to drug use, a parole violation. See Ans., Ex. F. The presumptive back time range for recommitment under a single violation of this type is 6 to 12 months. 37 Pa. Code § 75.4, Condition 5(a). Petitioner was recommitted 12 months, the maximum allowed by regulations and denied reparole on June 18, 2003, with no further review for 24 months. See id.
Petitioner cites to the Third Circuit's decision in Mickens-Thomas v. Vaughn, 321 F.3d 374, for the proposition that retrospective application of the Parole Act, as amended in 1996, represents a per se ex post facto violation of his rights under the U.S. Constitution. The Court in Mickens-Thomas recognized the fact that the Ex Post Facto Clause "prohibited the application of postconviction laws . . . that would result in a significant increase in the chances of prolonged incarceration." 321 F.3d 391 ( citing Garner v. Jones, 529 U.S. 244, 251 (2000). However, Petitioner has not established that the Board applied the Parole Act or its regulations in an manner that represented an ex post facto violation of his rights.
In Mickens-Thomas, the petitioner, but for the perceived change in emphasis on public safety would have been released; Thomas' life sentence had been commuted, he had completed all prescribed plans, Thomas had received favorable institutional recommendations, and the Parole Board's Decision Making Guidelines recommended release. See 321 F.3d 380-81. Petitioner, by contrast, has not shown that, but for an application of the 1996 change in parole policy, he would have been paroled. Furthermore, he has not demonstrated that the Board's decision was influenced by the new policy.
Specifically, the Board's June 18, 2003, decision was not tainted by the delay factors found to be impermissible in Mickens-Thomas. Concern for potential risks to public safety can not be the sole or dominant basis for parole denial and "summary" factors such as the severity of the underlying offense and potential for future assaults, that reflect conduct that existed at the time of conviction, used alone, are impermissible. 321 F.3d at 386-88. In Petitioner's case, the Board based most of its decision on Petitioner's contemporary behavior; e.g. his refusal to accept responsibility for the offense, his lack of remorse, and his interview with the hearing examiner and/or board member as factors. See Ans. Ex. G. Such factors are consistent with the Parole Board regulations, prior to the 1996 amendments. See 61 P.S. § 331.19.
61 P.S. § 331.19, Investigation of circumstances of offenses and character and history of prisoner; matters considered in granting parole, states the following:
It shall be the duty of the board, upon the commitment to prison of any person whom said board is herein given the power to parole, 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. § 9714(g) (relating to sentences for second and subsequent offenses) in a victim impa ct education program offered by the Department of Corrections and the written or personal statement of the testimony of the victim or the victim's family submitted pursuant to section 22.1 of this act. [FN1] 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, as far as the same may be known, to be reported and investigated. All public officials having possession of such records or information are hereby required and directed to furnish the same to the board upon its request and without charge therefor so far as may be practicable while the case is recent.Id. This statute has been amended only once since 1986, in 1998. Section 7 of Act 1998-143 provided: "The following provisions shall apply to individuals sentenced on or after the effective date of this act: "(1) The amendment of section 19 of the act which requires consideration of participation in Department of Corrections victim impact education programs by individuals sentenced for crimes of violence under 42 Pa.C.S. § 9714(g)."" Therefore, no part of section 19 that applied to Petitioner's sentence was amended after 1986.
Pennsylvania law grants the Parole Board vast discretion to refuse or deny parole. See 61 Pa. Const. Stat. Ann. § 331.21. The statute itself, unchanged by the 1996 amendments, provides:
None of the amendments to 61 P.S. § 331.21 since 1990 would have affected Petitioner's parole status but most particularly, since 1995, the statue has only been amended once, in 1998. Section 7 of Act 1998-143 provided that the addition of subsec. (b.1) "shall apply to individuals sentenced on or after the effective date of this act." Id.
The Board is hereby authorized to release on parole any convict . . . 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 Commonwealth will be injured thereby . . . Said board shall have the power during the period for which a person shall have been sentenced to recommit one paroled for violation of the terms and conditions of his parole and from time to time to reparole and recommit in the same manner and with the same procedure as in the case of an original parole or recommitment . . .
61 P.S. § 331.21. Pennsylvania courts have affirmed the Board's discretion to reparole a violator:
The amount of backtime imposed for parole violations is left to the exclusive discretion of the Board. Section 21.1 of the Parole Act gives the Board the power to return parole violators to prison to serve the entire remaining balance of their unexpired maximum terms. A parole violator may be reparoled by the Board only when reparole is justified as in the best interests of the parolee and the interests of the Commonwealth will not be injured by a grant of reparole. 61 P.S. § 331.21a; see also Gundy, 82 Pa. Cmmw. Ct. at 624, 478 A.2d at 142.Krantz v. Com., Pa. Bd. of Probation and Parole, 483 A.2d 1044, 1048 (Pa.Cmmw. Ct. 1984). Thus, it was established long before the 1996 amendments that where, as here, the parolee has a history of parole failure, the Board may exceed the maximum presumptive range in back time. Moroz v. Pa. Bd. of Probation and Parole 660, A.2d 131, 132-33 (Pa. Cmmw. Ct. 1995) (finding Board sufficiently justified in exceeding the presumptive range when offender was a four time violator on parole from a conviction for murder); Bradley v. Pa. Board of Probation Parole, 587 A.2d 839 (Pa. Cmmw. Ct. 1991) (finding two prior violations while on parole for third degree murder justified a recommitment period twice the maximum presumptive range). Petitioner, a convicted robber, having twice failed parole, properly was given an additional back time sentence.
Petitioner also complains that, under prior policy, after the Board denied reparole, it assigned a reparole date but, under the new policy, as applied to him in 2003, he merely received a review date. The United States Supreme Court addressed a similar issue in Calif. Dept. of Corrections v. Morales, 514 U.S. 499, (1995). In Morales, amendment to a California sentencing statute had no effect on the standards for fixing a prisoner's initial date of "eligibility" for parole or for determining his "suitability" for parole and setting his release date, but introduced the possibility that, after the initial parole hearing, the Board would not have to convene annual hearings if it found no reasonable probability that respondent would be deemed suitable for parole in the interim period. In determining that this amendment, applied retroactively, did not present an ex post facto violation, the Court held that legislative adjustments that are sufficient to transgress the constitutional prohibition must create more than a speculative and attenuated possibility of increasing the measure of punishment for covered crimes; "conjectural effects are insufficient under any threshold that might be established under the Clause." Morales, 514 U.S. 500.
Notice of the Board's March 18, 1996 decision was stamped with "APR 22, 1996" and, on April 22, 1996, the Board Chairman signed an order to release Petitioner to an app roved plan effective July 7, 1996. See Ans., Ex. C, D. Also, Petitioner's notice of the Board's decision to deny reparole on June 18, 2003, states, "having considered all matters required pursuant to the Parole Act of 1941, as amended. . . ." See Ans., Ex. G. However, this one example is hardly sufficient evidence to establish a systemic policy.
Here, Petitioner's conclusion that he will serve a longer period of incarceration because the Board granted him a review date rather than a reparole date, ( see Pet. Mem. at 9), is, at best, speculative. Both a reparole date and review date trigger Board review and the release process. It is this periodic review, not the path to invoke it that is determinative. Since the amended procedure does not significantly change Petitioner's length of incarceration, it does not pose an ex post facto violation. See Morales, supra, at 500. See also Miller v. Florida, 482 U.S. 423, 433 (1987) (contrasting adjustment to presumptive sentencing range with change in "the method to be followed in determining the appropriate sentence"); Dobbert v. Florida, 432 U.S. 282, 293-294, (1977) (contrasting change in the "quantum of punishment" with statute that merely "altered the methods employed in determining whether the death penalty was to be imposed"). The Commonwealth Court's dismissal of Petitioner's appeal on ex post facto grounds, therefore, was not contrary to or an unreasonable application of federal law. See Nolan v. Gillis, 98 Fed.Appx. 159 (3d Cir. 2004) (holding that inmate failed to establish the existence of a policy to grant automatic parole, or an ex post facto violation, where he did not show that similarly situated inmates received parole before the 1996 amendments).
3. Due Process and Equal Protection Claim — Ground Three
Petitioner states that, the Board, by applying the 1996 Parole Act amendments retrospectively to determine his eligibility for reparole, has violated Petitioner's 14th Amendment [r]ights to due process and equal protection of law under the United States Constitution by, (1) [i]mplementing a "Review Date" for reparole [instead of setting a "Reparole Date"], and (2) re-sanctioning Petitioner after he served his sanction for his technical parole violation." Pet. Rep. Memo. at 16. See also Pet. at 19. The Commonwealth did not expressly address the allegation. See generally Ans.
The United States Constitution does not generally recognize a liberty interest in a grant of parole for which due process is required. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 11 (1979) (stating that an inmate's general interest in the possibility of parole is no more substantial than the hope that he will not be transferred to another prison, a hope which is not protected by due process.) However, where state law creates a liberty interest, that interest is protected by minimal due process. Pennsylvania legislature and courts have directed that where the Board imposes backtime in excess of the maximum presumptive range, it must, in writing, list aggravating factors justifying increased backtime. 37 Pa. Code § 75.3(c); Krantz v. Pennsylvania Board of Probation Parole, 38, 483 A.2d 1044 (Pa.Cmmw.Ct. 1984). These reasons must be supported by substantial evidence in the record. Moroz v. Pa. Bd. of Prob. and Parole, 660 A.2d 131, 132 (Pa.Cmmw. 1995); Harper v. Pa. Bd. of Prob. Parole, 520 A.2d 518 (Pa. Cmmw. Ct. 1987), allocatur denied, 531 A.2d 432 (Pa. 1987).
In upholding the due process afforded by a Nebraska statute, the Court in Green holtz stated:
The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prep ared to adjust to parole release. At the Board's initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity, first, to insure that the records before the Board are in fact the records relating to his case; and, second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate's files, this procedure adequately safeguards against serious risks of error and thus satisfies due process.442 U.S. 1, 11. Greenholtz v. Inmates of Nebraska Penal and Correctional Complex 442 U.S. 1, *15, 99 S.Ct. 2100, **2107-2108 (U.S.Neb.,1979).
In Petitioner's case, the Board met these minimal statutory due process requirements. It interviewed Petitioner and reviewed his file; it provided to him a written explanation of those findings, including the factors used in denying reparole. See Ans., Ex. G. As detailed above, the Board considered permissible factors, consistent with pre-1996 statute, in denying his release; i.e., Petitioner's version of the nature and circumstances of the offense committed, his refusal to accept responsibility for the offense, his lack of remorse, and his interview with the hearing examiner and/or board member. See supra p. 16; Ans. Ex. G; 61 P.S. § 331.19. The social costs of allowing convicted criminals who violate their parole to remain at large are particularly high, see Morrissey v. Brewer, 408 U.S. 471, 477 (1972), and are compounded by the fact that parolees (particularly those who have already committed parole violations) are more likely to commit future crimes than are average citizens. Pa. Bd. of Prob. and Parole v. Scott, 524 U.S. 357, 358 (1998). See also Griffin v. Wisconsin, 483 U.S. 868, 880 (1987).
Thus, since the Board complied with the parole process required by statute and, inasmuch as its adverse decision did not rely on impermissible factors, this court finds that the Board's exercise of discretion was neither arbitrary nor capricious, and did not violate Petitioner's substantive due process or equal protection rights. Therefore, Petitioner's contentions lack merit; the Commonwealth Court's dismissal of Petitioner's appeal was neither contrary to nor an unreasonable application of federal law.
C. Conclusion
For reasons stated above, Petitioner's claims must be denied as meritless. Inasmuch as Petitioner has not demonstrated that he was entitled to relief under either the pre-1996 or present Pennsylvania Parole Act, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued.
Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 23rd day of February 2005, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED without an evidentiary hearing. Since Petitioner has not shown a denial of a constitutional right, a certificate of appealability should not be issued.