Opinion
No. 2:04-cv-02809-SD.
August 26, 2004
REPORT AND RECOMMENDATION
Currently pending before this Court is a Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by a prisoner incarcerated in the State Correctional Institution at Huntingdon, Pennsylvania. For the reasons which follow, it is recommended that the petition be denied.
I. PROCEDURAL HISTORY
On February 2, 1982, following a jury trial, petitioner was sentenced to serve ten to twenty years on a charge of murder in the third degree. As the murder conviction was a violation of parole on a previous sentence for aggravated robbery, petitioner was ordered to complete sixty months of backtime prior to starting his new sentence. Subsequently, in June of 1983, he was convicted of possession of implements of escape and sentenced to another six months to one year consecutive to the murder sentence. Petitioner was then reparoled from the robbery conviction and began serving his new aggregate sentence of ten and a half to twenty-one years, effective September 19, 1985. Accordingly, his minimum sentence expired on March 19, 1996, while his maximum sentence will expire on September 19, 2006.
Since the expiration of petitioner's minimum sentence, the Pennsylvania Board of Probation and Parole (the "Board") has reviewed and denied petitioner's application for release five times: November 9, 1995, November 1, 1996, September 28, 2000, September 26, 2002 and February 19, 2004. In the November 1995 decision, the Board listed the following reasons for denial of parole:
Poor prison adjustment.
Substance abuse.
Habitual offender.
Assaultive instant offense.
High assaultive behavior potential.
Victim injury.
Weapon involved in the commission of offense — knife.
Your need for counseling, treatment and education.
Unfavorable recommendation from the Department of Corrections.
History of violent crime and numerous supervision revocations.See Appendix to Response, at p. 7. The Board further indicated that, at his next review, petitioner would have to participate in a prescriptive program plan, maintain a clear conduct record and earn an institutional recommendation for parole. Id. On October 23, 1996, the Board again refused parole by simply reaffirming the 1995 decision.
On September 28, 2000, the Board reconsidered petitioner's application for parole and denied release, indicating that "the fair administration of justice cannot be achieved through your release on parole." See Appendix to Response, at p. 9. The Board stated that, at his next interview, it would consider whether petitioner participated in/successfully completed a treatment program for sex offenders, whether he received/maintained a favorable recommendation from the Department of Corrections and whether he received/maintained a clear conduct record and completed the Department of Corrections' prescriptive programs. Id. The September 26, 2002 denial was virtually identical, but for the fact that petitioner was ordered to complete both phase I and phase II of the Sex Offenders Treatment Program. Id. at 10.
Petitioner's latest parole denial was issued on February 19, 2004, and stated as follows:
Following an interview with you and a review of your file, and having considered all matters required pursuant to the Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: your 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 refusal to accept responsibility for the offense(s) committed.
The recommendation made by the Department of Corrections.
Your unacceptable compliance with prescribed institutional programs.
Your interview with the hearing examiner.
You will be reviewed in or after July, 2005.
At your next interview, the Board will review your file and consider:
Whether you have successfully completed a treatment program for:
Sex offenders — phase II.
Whether you have received a favorable recommendation for parole from the Department of Corrections.
Whether you have maintained a clear conduct record and completed the Department of Corrections' prescriptive program(s).Id. at 11-12.
Petitioner never sought review of or filed any appeal from any of the Board's decisions in state court. On June 25, 2004, however, petitioner submitted the instant Petition for Writ of Habeas Corpus alleging that the Parole Board violated the Ex Post Facto Clause due to (1) its retroactive application of the 1996 amendments to the parole laws and (2) its retroactive application of Megan's Law, 42 Pa.C.S.A. § 9793, by requiring petitioner to participate in a Sex Offenders Program for a sex charge committed when he was a juvenile. Having considered the opposing arguments, the Court now turns to a discussion of these issues.
II. FAILURE TO EXHAUST STATE COURT REMEDIES
Respondents primarily argue that neither of petitioner's claims have been exhausted and, thus, at a minimum, the habeas petition should be dismissed without prejudice. While we find merit to this contention, we decline to dismiss the petition on exhaustion grounds.
Before a federal court may grant habeas relief to a state prisoner, the prisoner must exhaust his remedies in state court.O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731 (1999). A petitioner is not deemed to have exhausted the remedies available to him if he "has the right under state law to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350, 109 S. Ct. 1056, 1059, reh'g denied, 490 U.S. 1076, 109 S. Ct. 2091 (1989). In other words, a petitioner must invoke "one complete round of the State's established appellate review process," in order to exhaust remedies. O'Sullivan, 526 U.S. at 845. A habeas petitioner retains the burden of showing that all of the claims alleged have been "fairly presented" to the state courts, which demands, in turn, that the claims brought in federal court be the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982),cert. denied, 459 U.S. 1115, 103 S. Ct. 750 (1983). In the case of an unexhausted petition, the federal courts should dismiss without prejudice, otherwise, they risk depriving the state courts of the "opportunity to correct their own errors, if any."Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). Where, however, there is an absence of available state corrective process, the exhaustion requirement is satisfied. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), cert. denied, 531 U.S. 1082, 121 S. Ct. 785 (2001).
With respect to parole decisions, the Pennsylvania Supreme Court has held that a mere denial of parole, under Pennsylvania law, affects no constitutionally protected liberty interest and, thus, is not an adjudication by an agency subject to state judicial review. Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319, 322-323 (Pa. 1999). On the other hand, it has noted that while "appellants are not entitled to appellate review of a Parole Board decision, they may be entitled to pursue allegations of constitutional violations against the Parole Board through a writ of mandamus." Id. at 323, n. 5. " Mandamus is an extraordinary remedy which is available to compel the Parole Board to conduct a hearing or to apply the correct law." Id. In a subsequent decision, the state Supreme Court expressly held that the issue of whether a statute relied upon by the Board in making its decision violated the Ex Post Facto Clause may be raised in state court by way of a petition for writ of mandamus.Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001). In light of this apparent remedy for allegations of constitutional infractions by the Parole Board, multiple cases from this Court have found that such claims must be exhausted before being considered in a federal habeas corpus petition. Jones v. Zwierzyna, Civ. A. No. 03-4986, 2004 WL 1091007, *3 (May 14, 2004); Ayala v. Pennsylvania Board of Probation and Parole, 02-9373, 2003 WL 23142180, *3 (Dec. 29, 2003), report and recommendation adopted, 2004 WL 1535767 (E.D.Pa. Jul 06, 2004); Hargrove v. Pennsylvania Bd. Of Probation and Parole, Civ. No 99-1910, 1999 WL 817722, *6 (E.D. Pa. Oct. 12, 1999); Carter v. N.P. Muller, 45 F. Supp.2d 453, 455 (E.D. Pa. 1999); Cohen v. Horn, Civ. No. 97-7175 1998 WL 834101, *2 (E.D. Pa. Dec. 2, 1998).
Under this jurisprudence, we do not find petitioner's claims exhausted. Petitioner has raised two arguments that the denial of his parole stands in violation of the Ex Post Facto Clause of the United States Constitution. Although his petition fails to clarify precisely which parole denials he is challenging, the Court construes his pleadings as contesting his latest parole denial of February 24, 2004. These ex post facto claims, however, were never raised in state court. Under the mandate of the United States Supreme Court in O'Sullivan, the claims remain unexhausted.
To the extent petitioner attempts to challenge any of the Board's previous decisions from September 2002 back, we decline to hear these claims. Any alleged problems with these decisions are now moot, in light of the fact that constitutional violations in those earlier hearings would be remedied by our ordering a new review by the Board. As petitioner has already received another parole review in February 2004, that latest decision is the only one ripe for consideration.
Although we could dismiss this case without prejudice and instruct petitioner to return to the state courts, respondents urge us to simply deny habeas relief under 28 U.S.C. § 2254(b)(2). Pursuant to this statute, "[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." Id. A petition containing an unexhausted claim, however, should not be denied on the merits unless "it is perfectly clear that the applicant does not raise even a colorable federal claim." Lambert v. Blackwell, 134 F.3d 506, 514-515 (3d Cir. 1998), cert. denied, 532 U.S. 919, 121 S. Ct. 1353 (2001) (quoting Granberry v. Greer, 481 U.S. 129, 135, 107 S. Ct. 1671 (1987). As set forth at length below, we find no substantive merit to either of petitioner's claims and, accordingly, shall dismiss this matter in its entirety.
III. MERITS
Both of petitioner's challenges to his parole denial invoke the Ex Post Facto Clause of the United States Constitution. U.S. CONST. Art. 1, § 10. The Ex Post Facto Clause applies to a statutory or policy change that "retroactively alter[s] the definition of crime or increase[s] the punishment for criminal acts." California Dep't of Corrections v. Morales, 514 U.S. 499, 505, 115 S. Ct. 1597, 1601 (1995) (quoting Collins v. Youngblood, 497 U.S. 37, 43, 110 S. Ct. 2715, 2719 (1990)). In order for a new law to violate the Ex Post Facto Clause, a petitioner must prove two elements. First, it must be retrospective, in that it "appl[ies] to events occurring before its enactment." Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 965 (1981); see also Coady v. Vaughn, 251 F.3d 480, 488 (3d Cir. 2001). Second, the new law must "disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S. Ct. 960, 964 (1981); Coady, 251 F.3d at 488. Therefore, if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it does not offend the ex post facto prohibition. See Dobbert v. Florida, 432 U.S. 282, 293, 97 S. Ct. 2290, 2298, reh'g denied, 434 U.S. 882, 98 S. Ct. 246 (1977) ("Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto.").
Petitioner now contends that two new laws are responsible for the ex post facto violation inherent in his parole denials. First, he argues that the policy statement of the Parole Act, defined in § 1, was amended in 1996 and then retroactively used as a basis for his parole denials. Second, he asserts that the Parole Board has denied him release due to his refusal to participate in a sex offenders program for a sex charge when he was a juvenile, based on the retroactive application of Megan's Law, 42 Pa.C.S.A. § 9793. Upon consideration of particular facts in the case before us, the Court must disagree with both allegations.
A. Amendment of Parole Act
The first "new law" challenged by petitioner comes in the form of an alteration in the parole laws and parole decision-making policies. From 1941-1996, the Parole Act established the following policy:
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 act to create a uniform and exclusive system for the administration of parole in this Commonwealth.
Act 1941, Aug. 6, P.L. 861, § 1. Pursuant to the Operating Guidelines, the Parole Board was required to give weight to a variety of factors, including Department of Corrections recommendations, the seriousness of the offense, the length of sentence, institutional adjustment, the strength of the parole plan, testimony from victims, opinions of the sentencing judge, job training, treatment and therapy programs and participation in educational programs. 61 P.S. § 331.19; Mickens-Thomas v. Vaughn, 321 F.3d 374, 378, 386 (3d Cir. 2003). As characterized by the Third Circuit Court of Appeals:
Specifically, 61 P.S. § 331.19 states:
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 . . . in a victim impact 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 . . . 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.
61 P.S. § 331.19.
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 . . . Moreover, the Board had to weight 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.Id. at 385, 386.
In 1996, section 1 of the Parole Act was amended and a new public policy statement was issued as follows:
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. As described by the Third Circuit Court of Appeals, this policy alteration resulted in the Parole Board applying significantly more weight to the public safety interest. "The 1996 policy change placed first and foremost the public safety [interest] 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 . . ." Mickens-Thomas, 321 F.3d at 385.
In Mickens-Thomas v. Vaughn, supra, the Third Circuit faced a challenge to that amendment by prisoner Thomas, who had been sentenced to a life term in 1969, but whose sentence had been commuted by the Governor. Id. at 376-377. When he came up for parole, however, the Board, in an August 1997 decision, denied release, notwithstanding his good conduct record, favorable recommendation from the Department of Corrections and his participation in treatment and other institutional programs.Id. at 377. Thereafter, he challenged this denial on the grounds that the Parole Board improperly utilized the 1996 amendment. Id. at 383. Reviewing the application of this parole change to the petitioner, the Third Circuit determined that "the parole change substantially impacted [the petitioner] in violation of the Ex Post Facto Clause." Id. at 393. It noted that there was "significant evidence that [the Parole Board] acted upon policies that were established after [the petitioner]'s crime and conviction." Id. at 387. It further explained that:
a parole decision that fails to address any of the criteria mandated by Board policy . . . and instead utterly ignores all factors counseling in favor of release, falls outside of the realm of the legitimate exercise of discretion under the pre-1996 policies.Id. at 387. Ultimately, the Court concluded 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." Id. at 393.
While we remain cognizant of the pronouncements from our Court of Appeals, consideration of other jurisprudence on this issue justifies our distinguishing the case before us in several respects. Notably, just prior to the Third Circuit's issuance of its Mickens-Thomas decision, the Pennsylvania Supreme Court published its ruling in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002). Facing an ex post facto argument identical to that raised in Mickens-Thomas, the Pennsylvania Supreme Court held that, "[t]he rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense." Id. at 691-692. It went on to explain that:
Both versions of § 331.1 leave the decision regarding the grant of parole within the discretion of the Board; the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht's punishment.Id. at 692. The court concluded that the mere "[r]eordering of considerations for necessary decisions within an unchanged penalty do not rise to an ex post facto violation."Id.
The Pennsylvania Supreme Court, in its December 2003 decision of Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa. 2003), reaffirmed this stance and held that "[a]lthough the phrases `protect the safety of the public' and `assist in the fair administration of justice' were added in 1996, these concepts have always been underlying concerns. Both versions of § 331.1 leave the grant of parole within the discretion of the Board. Adding language which clarified the policy underlying the parole process does not make appellant's punishment more severe; his maximum sentence remains the same."Id. at 688; see also Hall v. Pennsylvania Board of Probation and Parole, 851 A.2d 859 (Pa. 2004).
Shortly thereafter, the Third Circuit, in Mickens-Thomas, acknowledged the Pennsylvania Supreme Court's clarification that the amended § 331.1 does not constitute binding language requiring the Parole Board to place the greatest weight on considerations of public safety. Id. at 391. It held, however, that the Winklespecht 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 the case."Id. (emphasis in original). The Third Circuit reasoned that "[n]to 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." Id. As the Board was apparently uninfluenced by the subsequent court interpretation of the statute, the Third Circuit maintained its finding of an ex post facto violation. Id.
In the case at bar, petitioner argues that he was disadvantaged by the application of the 1996 amendment to his parole hearings. Our review of the February 2004 decision, however, reveals the contrary. The Board explicitly stated that it "considered all matters required pursuant to the Parole Act of 1941 as amended, 61 P.S. § 331.1 et seq." See Appendix to Response, at p. 11. Further, the Board listed its reasons for denial as follows: (1) petitioner's refusal to accept responsibility for the offenses committed; (2) the recommendation made by the Department of Corrections; (3) petitioner's unacceptable compliance with prescribed institutional programs; and (4) petitioner's interview with the hearing examiner. Id. As these reasons are in line with the pre-1996 requirements of the Act, as set forth in 61 P.S. § 331.19, this Court finds no ex post facto violation.
Moreover, the February 2004 Board decision occurred well after the Pennsylvania Supreme Court held in Winklespecht that the rewording of 61 P.S. § 331.1 did nothing to alter the factors that the Board should consider or affect the Board's broad discretion in the parole decision. Winklespecht, 813 A.2d at 691-692. Unlike the Board in Mickens-Thomas, the Parole Board in this case had the benefit of guidance from the Pennsylvania Supreme Court and was aware, prior to its decision, that the 1996 amendment did not change the analysis to be used in parole proceedings.
In short, contrary to the Third Circuit's concern inMickens-Thomas, the Board did not give additional weight to public safety, as suggested by the 1996 amendment to the policy statement. Rather, it unequivocally applied the pre-1996 totality of the factors inquiry in assessing whether petitioner was entitled to release on parole. Consequently, we find that petitioner's ex post facto challenge must fail.
B. Application of Megan's Law
Petitioner's second ex post facto challenge asserts that the Board indicated that it would consider whether he successfully completed a treatment program for sex offenders. Such a requirement, he claims, is based on the improperly retroactive application of Megan's Law, 42 Pa.C.S. § 9793. We find no basis for this claim.
The Pennsylvania Commonwealth Court dealt with a similar claim in McGarry v. Pennsylvania Board of Probation and Parole, 819 A.2d 1211 (Pa.Commw. 2003). The prisoner, in that case, contended that the Board's action in utilizing the report of a non-licensed therapist to determine his eligibility for parole, pursuant to the sexual offender assessment provision of Megan's Law, and requiring that he complete a treatment program for sex offenders in order to be considered for parole were requirements that did not exist at the time he committed his crime and resulted in an ex post facto violation. Id. at 1214-1215. The court found that Megan's law did not constitute an ex post facto law, and that, even if it did, the Board had the authority, under the pre-existing Parole Act at 61 P.S. § 331.19, to request an assessment of an offender prior to considering him for parole.Id. at 1215.
In this case, we reach the same result. The statute cited by petitioner deals with the registration of certain sex offenders with the police upon parole or release from incarceration. Specifically, former 42 Pa.C.S.A. § 9793 (repealed May 10, 2000), states:
(a) Registration. — A person convicted of any of the offenses set forth in subsection (b) shall be required to register a current address with the Pennsylvania State Police upon release from incarceration, upon parole from a State or county correctional institution, upon the commencement of a sentence of intermediate punishment or probation or where the offender is under the supervision of the Pennsylvania Board of Probation and Parole at the time of enactment of this section . . .Id. As petitioner had not yet been paroled or released from incarceration, this statute clearly had no impact on petitioner or his 2004 denial of parole. The Board's requirement that petitioner complete a Sex Offenders Treatment Program was based not on § 9793, but rather 61 P.S. § 331.19, which permits the Board to consider "the general character and background of the prisoner" and "the conduct of the person while in prison and his physical, mental and behavior, condition and history, his history of family violence and his complete criminal record." Id. As these guidelines were in effect well before petitioner's conviction, the Board's reliance on them does not violate the Ex Post Facto Clause.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of August, 2004, it is RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus be DENIED. There is no probable cause to issue a certificate of appealability.