                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2006

Johnson v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2239




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2239


                                DETROY JOHNSON,

                                               Appellant

                                          v.

                          PENNSYLVANIA BOARD OF
                           PROBATION AND PAROLE;
                        DEPARTMENT OF CORRECTION;
                         THE DISTRICT ATTORNEY OF
                       THE COUNTY OF PHILADELPHIA;
                       THE ATTORNEY GENERAL OF THE
                           STATE OF PENNSYLVANIA



                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 02-cv-04632)
                     District Judge: Honorable James K. Gardner


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 9, 2006

                    Before: BARRY and AMBRO, Circuit Judges,
                          and DEBEVOISE,* District Judge

                           (Opinion filed January 24, 2006)


      *
       Honorable Dickinson R. Debevoise, Senior District Court Judge for the District
of New Jersey, sitting by designation.
                                         OPINION


AMBRO, Circuit Judge

       Detroy Johnson filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254, arguing, inter alia, that the denial by the Pennsylvania Board of Probation and

Parole (the “Board”) of his application for parole violates the ex post facto clause of our

Constitution. Johnson’s appointed counsel on appeal, John S. Benson, filed an Anders

motion to withdraw as counsel, asserting that all potential grounds for appeal are

frivolous. We consider that motion here and, for the reasons set forth below, grant it and

affirm the District Court’s denial of Johnson’s habeas petition.

                                             I.

       Under Anders v. California, 386 U.S. 738 (1967), if counsel “finds [a] case to be

wholly frivolous, after a conscientious examination” of the potential grounds for appeal,

s/he should “advise the court and request permission to withdraw.” Id. at 744. This

request must be accompanied by “a brief referring to anything in the record that might

arguably support the appeal,” id.,“explain[ing] to the court why the issues are frivolous,”

United States v. Marvin, 211 F.3d 778, 781 (3d Cir. 2000), and demonstrating that s/he

has “thoroughly scoured the record in search of appealable issues,” id. at 780. A copy of

counsel’s brief must be furnished to the appellant, who must be given time to raise



                                              2
nonfrivolous arguments in a pro se brief. Anders, 386 U.S. at 744; Third Circuit LAR

109.2(a) (2000).

       We “confine our scrutiny to those portions of the record identified by an adequate

Anders brief . . . [and] those issues raised in Appellant’s pro se brief.” United States v.

Youla, 241 F.3d 296, 301 (3d Cir. 2001). We do not “comb the record . . . for possible

non-frivolous issues that both the lawyer and his client may have overlooked,” as “[our]

duty is merely to determine whether counsel is correct in believing those grounds [raised

are] frivolous.” United States v. Wagner, 103 F.3d 551, 552-53 (7th Cir. 1996). We

grant counsel’s Anders motion to withdraw if we believe “that the attorney has provided

the client with a diligent and thorough search of the record for any arguable claim,”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988), and if we conclude

“that the appeal lacks any basis in law or fact,” id. at 438 n.10.

                                              II.

       As we write for the parties, only a brief summary of pertinent facts and procedural

history is necessary. In June 1982, Johnson was convicted in the Philadelphia Common

Pleas Court of two robberies and sentenced to seven years probation. While on parole, he

pled guilty to third degree murder and conspiracy and was sentenced to serve a five to

fifteen year term on the murder conviction and a five to ten year term on the conspiracy

conviction. Because Johnson committed the murder and conspiracy while on probation

for the 1982 robberies, the Common Pleas Court revoked his probation and sentenced him



                                               3
to two to five year terms for each of his robbery convictions to be served concurrently

with each other but consecutive to his murder sentence. Effective December 19, 1987,

his consecutive robbery and murder sentences were aggregated to a seven to twenty year

sentence.

        When his minimum sentence expired in December 1994, the Board released

Johnson on parole. However, six months later he was arrested and charged with a

number of new crimes, including criminal trespass. On August 7, 1996, Johnson pled

guilty to criminal trespass and received a sentence of nine to twenty-three months in

county prison. The sentencing court paroled Johnson on that sentence on September 3,

1996.

        As a result of his criminal trespass conviction, the Board charged Johnson with a

violation of parole on his robbery and murder sentence. Subsequent to a revocation

hearing, the Board revoked parole and re-committed Johnson effective the date that he

had been paroled from his county sentence. Because Johnson had committed a new crime

while on parole, the Board provided him no credit for time served on parole and

calculated that he had thirteen more years to serve in prison from his effective date of re-

commitment. Consequently, Johnson’s sentence is set to expire on September 3, 2009.

Since Johnson’s re-commitment, the Board has reviewed Johnson for re-parole numerous

times but has denied re-parole after each review. Reasons for those denials have included

assaultive misconduct, supervision failures, need for counseling, refusal to submit a DNA



                                              4
sample, refusal to accept responsibility for his crime and adverse recommendations from

the Department of Corrections.

       In July 2002, Johnson filed a pro se petition for a writ of habeas corpus in the

United States District Court for the Eastern District of Pennsylvania, raising several

arguments, including his ex post facto claim. Magistrate Judge Sandra Moore Wells

entered a recommendation that Johnson’s petition be denied for failure to demonstrate a

substantial violation of any constitutional right. District Judge James Knoll Gardner

entered an order adopting Judge Wells’ recommendation and denying a certificate of

appealability (“COA”). Johnson appealed and our Court issued a COA on the sole issue

of whether the Board had denied Johnson’s application for parole in violation of the ex

post facto clause.

                                             III.

       In his habeas petition, Johnson specifically alleges that, in assessing his eligibility

for parole, the Board, by ignoring the Constitution’s ex post facto clause, applied

retroactively (and thus unconstitutionally) Pennsylvania’s DNA Detection of Sexual and

Violent Offenders Act, 44 Pa. C.S.A. §§ 2301-2336 (“DNA Act”), as well as the

Department of Corrections (the “DOC”) policy enforcing that Act, DOC Policy 11.6.1.

The DNA Act requires that any person convicted of a felony (which includes murder and

robbery) have a DNA sample drawn. 44 Pa. Const. Stat. Ann. §§ 2303, 2316(a). Persons

serving prison sentences for one of these offenses on the effective date of the law – such



                                              5
as Johnson – may not be released from prison until the sample has been drawn. Id. at §

2316(3). The samples are to be used “only for law enforcement identification purposes or

to assist in the recovery or identification of human remains from disasters or for other

humanitarian identification purposes.” Id. at § 2318(c).

       According to Johnson, he had a constitutional expectation that his parole petition

would be evaluated under the laws in effect when he was convicted. Because the DNA

Act was not in effect at the time of his conviction, he argues that his noncompliance with

the Act was not a valid basis on which to deny him re-parole. Our review of the record,

however, confirms that Johnson’s ex post facto argument in this context is frivolous.

       Under the ex post facto clause, “the government may not apply a law retroactively

that ‘inflicts a greater punishment . . . than the law annexed to the crime . . . when

committed.’” Artway v. Attorney General of State of N.J., 81 F.3d 1235, 1253 (3d Cir.

1996) (quoting Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798)). The threshold question

under the clause, therefore, is whether the DNA Act imposes “punishment.” If it does

not, our inquiry with respect to that Act is at an end. See id. at 1253. Application of our

rationale in Artway— where we held that sex offender registration does not violate the ex

post facto clause—makes clear that collection of a DNA sample to be used for future

investigation and identification purposes cannot be punishment that implicates the clause.

Id. at 1264-67.

       Indeed, Commonwealth courts have held expressly that “the [Pennsylvania DNA]



                                              6
blood testing requirement is not penal and therefore cannot offend the ex post facto

clause.” Dial v. Vaughn, 733 A.2d 1, 4-5 (Pa. Commw. Ct. 1999). In Dial, the Court

observed:

       The requirement that [the prisoner] submit to pre-release withdrawal of a
       blood sample for DNA testing does not alter his maximum sentence. Nor
       does the Act alter [the prisoner’s] parole eligibility date. Once eligibility
       has been achieved by incarceration for the prescribed minimum time, actual
       release on parole may depend on full compliance with a variety of prison
       rules and administrative requirements. The Act defines an administrative
       requirement that must be satisfied prior to release. This requirement is
       similar to the requirement for acquisition and storage of other convict
       identification records in the form of photos, fingerprints and physical
       description compiled at the time of arrest.

733 A.2d at 4.

       We agree with the Commonwealth and several of our sister circuits that the

collection of blood for identification and establishment of a DNA data bank is, like

fingerprinting and photographing, a non-penal, administrative requirement that does not

run afoul of the ex post facto clause. See, e.g., Gilbert v. Peters, 55 F.3d 237, 239 (7th

Cir. 1995) (stating that “[b]oth federal and state courts have uniformly concluded that

statutes which authorize collection of blood specimens to assist in law enforcement are

not penal in nature”). Nor do we believe that denial of parole for refusal to comply with

the Act’s sample collection requirements is ex post facto. This is because whatever

disadvantage is imposed (denial of parole) from an inmate’s refusal to comply with the

DNA Act results “not by reason of conduct that took place before enactment of the

statute, so as to become retrospective, but from conduct that occurred after enactment in

                                              7
refusing to comply with a reasonable regulation.” Jones v. Murray, 962 F.2d 302, 309 n.3

(4th Cir. 1992) (holding that retention of inmates who refused to provide blood for a

DNA sample was not an ex post facto law since that retention did not exceed the terms of

the prisoners’ initial sentences) (italics in original).

                                            *****

       For the reasons provided above, we affirm the decision of the District Court

denying Johnson’s petition for habeas corpus and grant counsel’s motion to withdraw.




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