On Appeal From the United States District Court For the Middle District of Pennsylvania (D.C. No. 04-CV-0085) District Judge: Honorable Malcolm Muir.
The opinion of the court was delivered by: Becker, Circuit Judge.
Before: ALITO, BECKER, and GREENBERG Circuit Judges.
Wilbur Richardson filed a petition for habeas corpus claiming that the Pennsylvania Board of Probation and Parole ("the Parole Board") has continually denied him parole in violation of the Ex Post Facto Clause of the United States Constitution. Richardson asserts that, in rejecting his parole application, the Parole Board retroactively applied 1996 amendments to the Pennsylvania Probation and Parole Act, Pa. Stat. Ann., tit. 61, §§ 331.1-331.34a (West 1999) ("Parole Act"). Richardson relies on our decision in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), in which we found that the use of the 1996 Amendments to deny a petitioner parole violated the Ex Post Facto Clause.
The Commonwealth, however, contends that MickensThomas does not control because the Pennsylvania Supreme Court held in Winklespecht v. Pennsylvania Board of Probation and Parole, 813 A.2d 688 (Pa. 2002), that the 1996 Amendments did not in fact change the substantive criteria for parole. Unlike Thomas, Richardson was denied parole at least twice after Winklespecht was decided. However, the Pennsylvania Supreme Court's more recent decision in Cimaszewski v. Board of Probation and Parole, 868 A.2nd 416, 426-27 (Pa. 2005), undermines this interpretation of Winklespecht. Given Cimaszewski, Mickens-Thomas appears to have retained vitality. Nevertheless, Richardson has failed to state a claim for relief. To be eligible for habeas corpus based on a violation of the Ex Post Facto Clause, a petitioner must show both a retroactive change in law or policy and that this change caused individual disadvantage by creating "a significant risk of increasing his punishment." Garner v. Jones, 529 U.S. 244, 255 (2000); Mickens-Thomas,321 F.3d at 393.Richardson has not demonstrated that he was disadvantaged by the use of the 1996 Amendments in his parole determination. Therefore, we will deny his request to order the District Court to conduct an evidentiary hearing, and we will affirm the order of the District Court denying his petition for habeas corpus.
I. Factual and Procedural Background
A. Parole in Pennsylvania
Parole decisions in Pennsylvania are governed by the Parole Act, Pa. Stat. Ann., tit. 61, §§ 331.1-331.34a. Once a prisoner has served his or her minimum sentence, the prisoner is eligible for parole. Id. § 331.21(a). The Parole Board has the "exclusive power to parole and reparole" prisoners sentenced to two or more years of imprisonment. Id. § 331.17. To determine a prisoner's eligibility, the Parole Act directs the Board to consider, inter alia, the prisoner's complete criminal record, conduct while in prison, "physical, mental, and behavior condition and history," the "nature and circumstances of the offense committed," and "the general character and background of the prisoner." Id. § 331.19.
To further aid its analysis, the Parole Board also looks to Pennsylvania's Parole Decision Making Guidelines ("the Parole Guidelines"), which provide a prediction of the likelihood of parole by assigning a numerical value to certain criteria, based on past patterns of recidivism and an assessment of risk to the community. See Mickens-Thomas, 321 F.3d at 378-79. The Parole Guidelines include a worksheet and a formal numerical protocol: the higher the numerical score, the less likely a petitioner is to be granted parole.*fn1
These considerations, however, are not binding, as the Parole Act confers complete discretion on the Parole Board to make the ultimate parole determination. Id. § 331.21; see also Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 322 (Pa. 1999) ("[T]he General Assembly, in its wisdom, has conferred upon the Parole Board sole discretion to determine whether a prisoner is sufficiently rehabilitated to serve the remainder of his sentence outside of the confines of prison . . . ."). Thus parole decisions in Pennsylvania are generally not subject to judicial review unless the petitioner asserts a constitutional challenge to the denial of parole or seeks a writ of mandamus to compel the Parole Board to exercise its discretion. See Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) ("Where . . . discretionary actions and criteria are not being contested . . . an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the Ex Post Facto Clause . . . . Absent a change in the statutes governing parole, however, denial of parole would generally constitute a discretionary matter that is not subject to review.").
Section 1 of the Parole Act contains a general statement of the policy and philosophy of the Pennsylvania parole system. From its enactment in 1941 until 1996, Section 1 emphasized the values of rehabilitation and restoration to social and economic life, by providing the following statement of parole 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 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.
Act of August 6, 1941, P. L. 861 § 1, formerly codified at Pa. Stat. Ann., tit. 61, § 331.1 (1995) (hereinafter, "the pre-1996 Parole Act").
In 1996, the Parole Act was modified to make public safety the primary consideration. See Act of December 18, 1996, P.L. 1098, No. 164 §1. The policy statement under the amended Parole Act 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.
Act of December 18, 1996, P.L. 1098, No. 164 § 1 codified at Pa. Stat. Ann., tit. 61, §331.1 (2005) (hereinafter, "the 1996 Amendments").
B. Richardson's Parole History
In 1984, Richardson was convicted in the Court of Common Pleas of Philadelphia County of third degree murder and was sentenced to 14-30 years imprisonment. Richardson has been denied parole each time he was considered between 1997 and 2003. Richardson was first denied parole in 1997. The 1997 parole determination was made on December 12, 1996, before the effective date of the 1996 Amendments, and thus fell under the pre-1996 Parole Act. The Board cited several reasons for the denial, including that the instant offense was assaultive, involved a weapon, and caused injury to the victim; Richardson's "need for counseling and treatment"; and the unfavorable recommendation of the Department of Corrections. The Parole Board stated that it would consider in ...