Opinion
Civil Action No. 01-3372.
June 15, 2004
MEMORANDUM
Presently before the Court are the Petition for Writ of Habeas Corpus and Respondents' Answer. United States Magistrate Judge Charles B. Smith filed a Report recommending that this Court deny and dismiss the petition for writ of habeas corpus. Petitioner filed Objections and Respondents filed responses to Petitioner's objections. Upon consideration of the Report and Recommendation, Petitioner's objections, and Respondents' Response, I will sustain Petitioner's objections to the Report and Recommendation of the Magistrate Judge and remand this matter to the Pennsylvania Board of Probation and Parole.
Factual and Procedural History
In 1976 Petitioner was convicted of second degree murder and burglary and eventually sentenced to a term of twenty to forty years. Upon completion of his minimum sentence Petitioner was considered for parole by the Pennsylvania Board of Probation and Parole (the "Board") in November 1994. The Parole Board denied parole citing Petitioner's poor adjustment, substance abuse, assaultive instant offense, victim injury, need for counseling and treatment, seriousness of offense, and lack of responsibility indicating that Petitioner is a parole risk and threat to society. The Board indicated that prior to Petitioner's next review he must participate in a prescriptive program, maintain a clean conduct record, and achieve an institutional recommendation for parole.
One year later, in December 1996, the Board again denied parole citing Petitioner's substance abuse, assaultive instant offense, victim injury, weapon involved in crime, need for counseling and treatment, and unfavorable recommendation from the Department of Corrections. The Parole Board again directed Petitioner to complete a prescriptive program, maintain a clean conduct record, and earn an institutional recommendation before his next review for parole.
In November 1998, after Petitioner had satisfied the Board's stipulated conditions for parole from the 1996 review and had the full staff support of the Department of Corrections, the Board again declined to grant parole stating as follows:
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 October, 2002.
At your next interview the Board will review your file and consider: whether you have maintained a clear conduct record, and completed the Department of Corrections' Prescriptive Program(s) and your lack of remorse or insight into your crime.(Pl.'s Ex. 2)
The new emphasis on public safety was consistent with the Pennsylvania Legislative's amendment of the law governing parole in Pennsylvania in December 1996. (Pa. Stat. Ann., tit. 61 P.S. § 331.1(Purdon 2004)). The amendment emphasized that the philosophy of parole should be changed from prisoner rehabilitation to the protection of public safety, deterrence of crime and incapacitation of criminals. See Stewart v. Pennsylvania Board of Probation and Parole, 714 A.2d 502, 504, n. 1 (Pa.Commw.Ct. 1998) (citing Chairman's Report: Investigation into the Parole of Robert Simon, Senate of Pennsylvania Judiciary Committee, 179th Gen. Assembly 1995 Sess. 1-6 (February 1996)).
Petitioner filed his federal petition for Habeas Corpus alleging that the 1998 denial of parole violated the ex post facto clause as the emphasis on public safety to the exclusion of other factors constituted a new law applied retroactively to his parole application. Petitioner argues his application should be considered under the former law which weighs all factors. Finally, Petitioner argues that the Parole Board denied him substantive due process as the Board's focus on public safety was arbitrary and capricious.
This matter was referred to Magistrate Judge Smith, pursuant to Local Rule of Civil Procedure 72.1 and 28 U.S.C. § 636(b)(1)(B), for a report and recommendation. After careful consideration and review of the parties' arguments and the record, Magistrate Judge Smith filed a report recommending that this Court deny the petition. Magistrate Judge Smith concluded that the denial of Petitioner's parole was neither a violation of the ex post facto clause of the United States Constitution, nor a violation of his substantive due process rights. At the time the Report was filed, the Magistrate Judge did not have the benefit of the Court of Appeals for the Third Circuit's recent decision inMicken-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) which held that the Board's policy change constituted a new law and its retroactive application was in violation of the ex post facto clause. The parties were served copies of the Magistrate Judge's Report and Recommendation. Pursuant to Local Rule of Civil Procedure 72.1 IV (b) and 28 U.S.C. § 636(b)(1)(C), the Petitioner timely filed written objections to the Magistrate Judge's Report and Recommendation.
I. Scope of Review
A district court judge may refer a petition for a writ of habeas corpus to a magistrate judge. See 28 U.S.C. § 636(b)(1). Within ten days after being served a copy of the magistrate judge's report and recommendation, a party may file timely and specific objections thereto. See 28 U.S.C. § 636(b)(1)(C). The district court judge will then make a de novo determination of those portions of the report and recommendation to which objection is made. See id. The judge may accept, reject, modify, in whole or in part, the findings or recommendations made by the magistrate, receive further evidence or recommit the matter to the magistrate with instructions. See id.
II. Discussion
In his Objections, Petitioner cites Micken-Thomas to support his position that the Parole Board's focus on public safety to the exclusion of other factors was a change in law that, when applied retroactively to his parole application, violated the ex post facto clause of the U.S. Constitution. In their Response, Respondents argue that the Board's decision to refuse parole to Petitioner is based on the same law that was in effect at the time he committed his crime.
The Ex Post Facto Clause of the United States Constitution provides that "no state shallpass . . . ex post facto law." U.S. Const. Art 1, § 10. The Supreme Court has instructed that " to fall within the ex post facto prohibition, a law must be retrospective-that is it must apply to events occurring before its enactment and it must disadvantage the offender affected by it altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 117 S.Ct 891, 896 (1997) (citation and quotation omitted). In analyzing whether a law violates the ex post facto clause, the courts are required to determine whether the law resulted in "a sufficient risk of increasing the measure of punishment attached to the covered crimes." California Dep't of Corrections v. Morales, 514 U.S 499, 509, 115 S.Ct. 1597, 1603 (1995
Petitioner argues that the amendment to the parole laws by the Pennsylvania legislature in 1996 and changes in the parole decision making policies of the Board as applied to Petitioner has disadvantaged him, and as such is a violation of the ex post facto clause as held by the Third Circuit in Mickens-Thomas. InMickens-Thomas, the Court held that "to retroactively apply changes in the parole laws made after conviction . . . . . . . . in Pennsylvania that adversely affect the release of prisoners whose sentences have been commuted, violates the Ex. Post Facto Clause"Mickens-Thomas, 321 F.3d at 393. The Court found that "after 1996, the Board gave foremost importance to the public safety factor." Id. at 384. The Court concluded that prior to 1996, the Board's concern for public safety was not the "sole or dominant basis" for parole denial while post-1996 considerations of public safety became the "dominant concern" of the Board.Id at 398.
In the instant case, as in Micken-Thomas, the Board's decision denying petitioner's parole indicated that its action was consistent with the "mandates to protect the safety of the public." The Board's 1996 Decision urged petitioner to receive a favorable recommendation of parole from the Department of Corrections, maintain a clean record and complete the prescriptive program before his next application review in 1998. These were the same requirements as first required of him in 1994. The evidence of record shows that petitioner fulfilled these requirements. However, despite the recommendation for parole by the Department of Corrections, Petitioner was denied parole by the Board. It is clear that the concern for public safety was given greater weight in the Board's determination in 1998.
Accordingly, upon review of the records, and in light of the Third Circuit's decision in Micken-Thomas, this Court concludes that there is sufficient evidence that the Board retroactively applied the amended parole laws and guidelines to Petitioner's application for parole in violation of the Ex Post Facto clause of the U.S. Constitution to entitle Petitioner to the relief set forth in the order attached.
ORDER
AND NOW, this day of June, 2004, upon careful and independent consideration of the Petition for Writ of Habeas Corpus, Respondents' Answer, the Report and Recommendation filed by United States Magistrate Judge Charles B. Smith, Petitioner's Objections, and the Response to Petitioner's Objections, IT IS HEREBY ORDERED that:1 Petitioner's Objections are SUSTAINED.
2. Petitioner Roberto Tome's motion for summary judgment is GRANTED in part as to further proceedings before the Pennsylvania Board of Probation and Parole, and DENIED in so far as Petitioner seeks immediate release on parole.
3. Respondent's motion for summary judgment is DENIED.
4 Petitioner's Writ of Habeas Corpus is GRANTED, to the extent that this case is REMANDED for a further hearing before the Pennsylvania Board of Probation and Parole to be held within sixty days of this order.
5. The case is REMANDED to the Pennsylvania Board of Probation and Parole to re-adjudicate Tome's parole application applying the pre-1996 statute and corresponding rules to his application.