                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-8-2005

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Precedential or Non-Precedential: Precedential

Docket No. 04-2026




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                                       PRECEDENTIAL


     IN THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
      _________________________________________

                     NO. 04-2026
      _________________________________________

                 WILBUR RICHARDSON

                              Appellant

                               v.

PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
     ATTORNEY GENERAL OF PENNSYLVANIA

          __________________________________

       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
         __________________________________


                 Argued: July 12, 2005
Before: ALITO, BECKER, and GREENBERG Circuit Judges.

                 (Filed: September 8, 2005)

R. DAMIEN SCHORR (Argued)
1015 Irwin Drive
Pittsburgh, PA 15236
       Attorney for Appellant

THOMAS W. CORBETT, JR.
Attorney General
JOHN G. KNORR, III (Argued)
Chief Deputy Attorney General
SARAH C. YERGER
Senior Deputy Attorney General
Office of the Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
       Attorneys for Appellees

                              _____

                     OPINION OF THE COURT


BECKER, Circuit Judge.

       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 Mickens-
Thomas 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

                                2
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.1



       1
       Prior to 1996, approximately twenty percent of parole
decisions were contrary to the Parole Guidelines’ recommendation.
Departures from the Guidelines required a written explanation to

                                  3
        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



explain the policy exception, usually with reference to certain non-
guidelines factors such as psychotic behavior, patterns of habitual
offense, or the recommendation of the Department of Corrections.
Id. at 379. The Parole Guidelines continued to be employed after
1996, although the rate of departure in parole decision-making after
1996 is not clear from the record.

                                  4
       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

                                  5
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 his next parole determination whether
Richardson participated in the prison’s “prescriptive program
plan,” maintained a good conduct record, and earned institutional
recommendation for parole.
       The corrections staff of State Correction Institution Dallas,
where Richardson was being held, first recommended Richardson
for parole in 1998, and continued to recommend Richardson for
parole each subsequent year.             Notwithstanding these
recommendations, the Parole Board continued to deny parole. The
1998 parole decision stated the same reasons as the 1997 decision,
except that the 1998 decision added “habitual offender” as a new
reason, and deleted “unfavorable recommendation from the
Department of Corrections” as a rationale.
       In 1999 and 2000, the parole decision on Richardson
changed format in a manner that echoed the language of the 1996
Amendments to the Parole Act. These decisions stated:

       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.

In 2001 and 2002, the statement of reasons no longer mentioned
the safety of the public and was limited to the terse conclusion:
“[T]he fair administration of justice cannot be achieved through
your release on parole. You are therefore refused parole . . . .”
Each year the Parole Board suggested the same considerations for
the next parole determination as had been given in 1998.
       The Parole Board issued a modification of the 2002




                                 6
decision several months after the original decision.2 The new
version of the 2002 decision stated:

       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 . . . . 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:

              The recommendation of the prosecuting
              attorney.

              Reports, evaluations and assessments
              concerning your physical, mental, and
              behavior condition and history.

              Other factors deemed pertinent in
              determining that you should not be paroled:
              your prior criminal record.

The 2003 parole decision was identical to the modified 2002
decision except that two additional reasons were added:

       Your version of the nature and circumstances of the
       offense(s) committed.


       2
        It is not clear from the record why the Parole Board
modified the decision, although the more expansive parole decision
appears to be due to a system-wide change rather than anything
particular to Richardson’s case. Cf. Voss v. Pennsylvania Bd. Prob.
& Parole, 788 A.2d 1107 (Pa. Commw. Ct. 2001) (holding that the
generic “fair administration of justice” language did not meet due
process requirements as a matter of Pennsylvania law).

                                   7
       Your refusal to accept responsibility for the
       offense(s) committed.

        In 2003, Richardson petitioned for a writ of mandamus in
the Commonwealth Court of Pennsylvania, arguing that the parole
decisions violated the Ex Post Facto Clause of the United States
Constitution. The Commonwealth Court denied mandamus in an
unpublished order, and the Pennsylvania Supreme Court affirmed
without opinion. Richardson v. Pa. Bd. of Prob. & Parole, 838
A.2d 650 (2003). Richardson then filed this petition for a writ of
habeas corpus in the District Court for the Middle District of
Pennsylvania. The Court denied his petition.
        The Court held that a prisoner carries “the ultimate burden
of establishing that the measure of punishment itself has changed,”
Garner, 529 U.S. at 255, and “must show that as applied to his
own sentence the law creates a significant risk of increasing his
punishment,” Calif. Dep’t of Corr. v. Morales, 514 U.S. 499, 510
n.6 (1995). The Court then found that Richardson had failed to
establish that the 1996 Amendments affected the Parole Board’s
decision. The Court stated that its “review of the documents in
this case confirms that there is no language in the Board’s decision
implicating the amendments cited in Richardson’s petition, and
Richardson has not demonstrated the role which those amendments
played in the Board’s decision.” Therefore, the Court denied
Richardson’s petition because it concluded that “the Ex Post Facto
claim in [Richardson’s habeas petition] is based on speculation and
conjecture. Richardson has failed to link the one amended statute
cited in connection with his first claim to the Board’s decision.”3

                 II. The Ex Post Facto Clause



       3
         The District Court had jurisdiction over Richardson’s
habeas petition pursuant to 28 U.S.C. § 2254. Richardson timely
appealed the District Court’s order denying his petition, and we
have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Given
that the District Court denied Richardson’s habeas petition without
holding an evidentiary hearing, we exercise plenary review.
Zettlemoyer v. Fulcomer, 923 F.2d 284, 291 (3d Cir. 1991).

                                 8
         The Ex Post Facto Clause states that “[n]o State
shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10,
cl.1. The Clause applies to a statute or policy change which “alters
the definition of criminal conduct or increases the penalty by
which a crime is punishable.” Morales, 514 U.S. at 506 n.3.
         The ex post facto inquiry has two prongs: (1) whether there
was a change in the law or policy which has been given
retrospective effect, and (2) whether the offender was
disadvantaged by the change. See Weaver v. Graham, 450 U.S.
24, 29 (1981). To violate the Ex Post Facto Clause, a retroactive
change in the law or policy must create a “sufficient risk of
increasing the measure of punishment attached to the covered
crimes”; a “speculative and attenuated possibility of . . . increasing
the measure of punishment” is not enough. Morales, 514 U.S. at
509.
         In Garner, the Supreme Court noted that “[r]etroactive
changes in laws governing parole of prisoners, in some instances,
may be violative of [the Ex Post Facto Clause].” 529 U.S. at 250.
The Court, however, acknowledged the inherent difficulty in
deciding whether a retroactive change to parole policy constitutes
an Ex Post Facto violation, particularly considering the discretion
generally afforded to parole boards in making the ultimate parole
determination. Id. The Court made clear that “[t]he presence of
discretion does not displace the protections of the Ex Post Facto
Clause” and acknowledged the “danger that legislatures might
disfavor certain persons after the fact is present even in the parole
context.” Id. at 253.
         The Court nonetheless has afforded states some measure of
flexibility in making changes to their parole policy, and thus has
been “careful . . . not to adopt a single formula for identifying
which legislative adjustments, in matters bearing on parole, would
survive an ex post facto challenge.” Id. at 252. Informing this
flexibility is the Court’s observation that

       discretion, by its very definition, is subject to
       changes in the manner in which it is informed and
       then exercised. The idea of discretion is that it has
       the capacity, and the obligation, to change and adapt
       based on experience. New insights into the accuracy
       of predictions about the offense and the risk of

                                   9
       recidivism consequent upon the offender’s release,
       along with a complex of other factors, will inform
       parole decisions.

Id. at 253. Therefore, the Court cautioned that “the Ex Post Facto
Clause should not be employed for ‘the micromanagement of an
endless array of legislative adjustments to parole and sentencing
procedures’”; id. at 252 (quoting Morales, 514 U.S. at 508), and
that “[t]he States must have due flexibility in formulating parole
procedures and addressing problems associated with confinement
and release.” Id.

                III. Mickens-Thomas v. Vaughn

       In Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir.
2003), we considered whether the 1996 Amendments to the
Pennsylvania Parole Act violated the Ex Post Facto Clause. The
petitioner, Louis Mickens-Thomas (“Thomas”), was one of the
unusual prisoners who received a commutation of his life sentence,
which rendered him eligible for parole in 1996. Of the 266
prisoners whose life sentences had ever been commuted in
Pennsylvania, Thomas was the only prisoner not to be granted
parole. Thomas petitioned for habeas relief arguing that the Parole
Board denied him parole based on the 1996 Amendments to the
Parole Act in violation of the Ex Post Facto Clause.
       The Parole Board argued in Mickens-Thomas (as here) that
“the 1996 amendments . . . did not change the Board’s standards
for determining parole.” 321 F.3d at 384 (alteration in original).
We disagreed and found that the “statute unequivocally has been
interpreted by the Pennsylvania courts to express broad and
general aspirations of Pennsylvania’s parole policy.” Id. (citing
Stewart v. Pa. Bd. of Prob. & Parole, 714 A.2d 502, 508 (Pa.
Commw. Ct. 1998)). We did not rely on the then-recently decided
case of Winklespecht v. Pennsylvania Board of Probation and
Parole, 813 A.2d 688 (Pa. 2002), because Winklespecht was
decided “after the Board’s actions on Thomas’s parole” and
therefore “came too late to alter the Board’s view of the statutory
amendment on the outcome of this case.” 321 F.3d at 391
(emphasis in original).
       In Mickens-Thomas, we held that the question is “not

                                10
whether the statute on its face pertains to parole decisionmaking,
but whether, in practice, the new language has altered the
fundament for reviewing parole applications.” Id. at 384
(emphasis original). We concluded that there was “significant
evidence” that the practical effect of the 1996 Amendments was to
change the weight that public safety was given in the parole
calculation. Id. at 387. Even though the Board had always used
public safety as one consideration in parole determinations, we
found that, after 1996, the Board gave public safety far greater
weight. Id. at 385. This change particularly affected the chances
of parole for violent offenders, who are subjected to “a more
stringent standard of review” than under the pre-1996 scheme. Id.
(quoting Myers v. Ridge, 712 A.2d 791, 799 (Pa. Commw. Ct.
1998)).
        Having found that the 1996 Amendments made a change in
Pennsylvania parole policy as a general matter, we turned to
Thomas’s specific case, and held that Thomas also met the second
prong of the ex post facto analysis—that the change in policy
adversely affected his parole decision. The panel found that “there
is significant evidence that [the Board] acted upon policies that
were established after Thomas’s crime and conviction,” mainly
because of the Board’s reliance on public safety, in denying
Thomas parole. Id. at 387. Central to this determination were the
many pre-1996 factors that pointed toward a grant of parole, such
as the Parole Guidelines score, the unanimous recommendation of
the Department of Corrections, and, importantly, the fact that all
265 prisoners whose life sentences were commuted prior to 1996
had been paroled. Id. at 387-88.
        Given the foregoing analysis, we had no difficulty finding
that the 1996 Amendments “substantially increased the period of
incarceration” by reducing the possibility of Thomas’s release on
parole. Id. at 392. We therefore held 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.

                    IV. New Law or Policy

       Mickens-Thomas concluded that the “practical effect” of the

                                11
1996 Amendments was to create a more “a more stringent
standard of review,” particularly for the parole of violent
offenders. 321 F.3d at 385 (quoting Myers, 712 A.2d at 799).
However, shortly before Mickens-Thomas was filed, a plurality of
the Pennsylvania Supreme Court held that while

       the language concerning ‘protecting the safety of the
       public’ and ‘assist[ing] in the fair administration of
       justice’ was added to § 331.1 in 1996, these
       concepts are nothing new to the parole process and
       have always been underlying concerns. Both
       versions of § 311.1 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 increase Winklespecht’s
       punishment.

Winklespecht, 813 A.2d at 692 (alteration in original). Therefore,
Winklespecht concluded that the 1996 Amendments to the Parole
Act “[do] not create a substantial risk that parole would be denied
any more frequently than under the previous wording” and thus
held that the retrospective application of the 1996 Amendments
does not violate the Ex Post Facto Clause. Id. at 691-92.
        The Commonwealth argues that, after Winklespecht, it was
clear that the 1996 Amendments did not establish a new law or
policy. Without a change in law or policy, the Commonwealth
claims that the first prong of the ex post facto inquiry is not
satisfied. Thus, the Commonwealth asserts that the applicability
of Mickens-Thomas is limited to those parole decisions made
under the Parole Board’s pre-Winklespecht understanding of the
1996 Amendments.
        Mickens-Thomas        did not consider the impact of
Winklespecht because Winklespecht was handed down in
December 2002—after Thomas’ 1996, 1998, and 2000 denials of
parole. In contrast, the Parole Board has twice denied Richardson
parole after Winklespecht, in decisions that were ostensibly
informed by the Pennsylvania Supreme Court’s holding that there
was no substantive change in policy wrought by the 1996
Amendments. Thus, the Commonwealth claims that Mickens-

                                12
Thomas does not control and that no Ex Post Facto violation has
occurred.
       The Commonwealth, however, ignores subsequent
Pennsylvania Supreme Court decisions that undermine its
interpretation of Winklespecht. In Finnegan v. Pennsylvania Board
of Probation and Parole, 838 A.2d 684, 688 (Pa. 2003), a majority
of the Pennsylvania Supreme Court reaffirmed that the
considerations of public safety and administration of justice “have
always been underlying concerns” of the Act and that the new
language merely “clarified the policy underlying the parole
process.” Still, given the disparities between Mickens-Thomas and
Finnegan, doubts remained about whether the use of the amended
Parole Act violated the Ex Post Facto Clause. The Pennsylvania
Supreme Court again addressed the issue in Hall v. Pennsylvania
Board of Probation and Parole, 851 A.2d 859 (Pa. 2004). This
time a plurality of the Court reaffirmed that the use of the 1996
amended criteria does not violate the Ex Post Facto Clause.
       Chief Justice Cappy dissented in Hall, claiming that the
majority had improperly disregarded the U.S. Supreme Court
precedents of Garner, 529 U.S. 244, and Morales, 514 U.S. 499,
which both established that retroactive changes to parole
regulations may violate the Ex Post Facto Clause if the practical
effect of the change creates a significant risk of increased
punishment. 851 A.2d at 865-69 (Cappy, C.J., dissenting). Chief
Justice Cappy endorsed an “as applied” analysis of ex post facto
challenges to the 1996 Amendments, seeing the inquiry as a
“question of proof” whereby each prisoner must “demonstrate that
a violation has occurred, and that he in fact faces a significant risk
of an increase in punishment by application of the new policy.” Id.
at 869.
        On February 24, 2005, the Pennsylvania Supreme Court
made an about-face along the lines of Chief Justice Cappy’s
dissent, and held in Cimaszewski, 868 A.2d at 426-27, that under
the U.S. Supreme Court decisions of Morales and Garner,
“retroactive changes in the law governing parole may violate the ex
post facto clause.” Cimaszewski dispelled any suggestion that
Winklespecht had interpreted the 1996 amendments as making no
substantive change in the criteria for parole. Cimaszewski also
quoted Garner for the proposition that “[w]hen the rule does not
by its own terms show a significant risk” of increased

                                 13
incarceration, a petitioner must prove that the rule’s “practical
implementation . . . will result in a longer period of incarceration
than under the earlier rule.” 868 A.2d at 427 (quoting Garner, 529
U.S. at 255). It added that this is a “fact-intensive inquiry” to be
conducted “on an individual basis.” Id. This approach parallels
that taken by our Court in Mickens-Thomas.
        Under Cimaszewski, in order to establish an ex post facto
violation, the petitioner must provide “the requisite evidence that
he faces a significant risk of an increase in punishment” by
showing that “under the pre-1996 Parole Act, the Board would
likely have paroled the inmate.” Id. Cimaszewski held it was not
sufficient for a petitioner merely to rely on the same statistics cited
in Mickens-Thomas, because the petitioner must establish the
effect of the amendments “when applied to him.”4 Id. at 428.
        We therefore conclude that the State’s reliance on
Winklespecht is undermined by Cimaszewski, which acknowledged
that the practical effect of the amendment may be that it increases
an individual prisoner’s sentence. Given this conclusion in
Cimaszewski, and informed by our own precedent in Mickens-
Thomas, we hold that the first prong of the ex post facto inquiry is
satisfied.

                   V. Individual Disadvantage

       Richardson argues that, under Mickens-Thomas, the
retroactive application of the 1996 Amendments is a per se
violation of the Ex Post Facto Clause, and that he should


       4
        The Pennsylvania Supreme Court is, of course, the final
arbiter of Pennsylvania law. Nevertheless, it may be the case that
the practical effect of a law or policy differs from the judicial
interpretation. See Mickens-Thomas, 321 F.3d at 384. In such a
case, we leave open the possibility that an ex post facto violation
can be found if the Parole Board continues to apply a more
stringent standard for parole determinations, notwithstanding the
admonitions of the state’s highest court. In this respect, if we were
presented with evidence that a stricter standard of review continues
to prevail, Cimaszewski may not have been necessary to our finding
that Mickens-Thomas retains vitality post-Winklespecht.

                                  14
automatically be entitled to relief if he can demonstrate that the
Parole Board relied on the amended version of the Parole Act.
This argument, however, is in tension with the second prong of the
ex post facto analysis: the requirement that the change in the law
“disadvantage the offender affected by it.” Weaver v. Graham,
450 U.S. at 29; see also Garner, 529 U.S. at 255 (requiring a
prisoner to show that “as applied to his own sentence the law
created a significant risk of increasing his punishment”) (emphasis
added). While the “general operation of the . . . parole system may
produce relevant evidence and inform further analysis,” Garner,
529 U.S. at 255, the ultimate question is the effect of the change
in parole standards on the individual’s risk of increased
punishment.
        Mickens-Thomas is fully in accord with this approach. In
Mickens-Thomas, we explicitly required Thomas to demonstrate
not only that the new policy applied retroactively, but also that
Thomas was disadvantaged as a result. See 321 F.3d at 384. We
found that the key question is whether “the change affected the
petitioner’s own sentence detrimentally.” Id. at 393 (emphasis
original). Indeed, the second half of the Mickens-Thomas opinion
is largely devoted to establishing that Thomas would have likely
been paroled under the pre-1996 standards, but was denied parole
only because of the new focus on public safety under the 1996
Amendments. As noted above, Thomas produced statistical
evidence specific to his case, including the fact that out of 266
prisoners whose life sentence was commuted in the recorded
history of the Parole Board, he was the sole individual whose
parole was denied.
        Thomas also showed that the Parole Guidelines counseled
in favor of parole, and that the Department of Corrections staff had
unanimously recommended him for parole. In addition, Thomas
pointed to the rationale given by the Parole Board for denying him
parole, from which we inferred that the change in policy after the
1996 Amendments had a significant, if not determinative, effect on
Thomas’s denial of parole. See 321 F.3d at 390-91. It is therefore
clear that Mickens-Thomas did not establish a per se rule, but
rather, in line with the Supreme Court precedents of Weaver,
Garner, and Morales, required Thomas to show he was
individually disadvantaged by the 1996 Amendments.
        The District Court denied Richardson’s habeas petition

                                15
because he failed to demonstrate that the 1996 amendments
negatively affected his parole determination. The Court concluded
“there is no language in the Board’s decision implicating the
amendments . . . and Richardson has not demonstrated the role
which those amendments played in the Board’s decision.”
        The District Court overstated the case by finding that there
is “no language” in the Parole Board’s decision that implicates the
1996 Amendments. It is plain from each of Richardson’s denials
of parole between 1999 and 2003 that the Board did rely on the
amended Parole Act in making its determination. In 1999 and
2000, the denial of parole mirrored the language of the 1996
Amendments, and justified Richardson’s parole denial on the basis
of “mandates to protect the safety of the public and to assist in the
fair administration of justice.” In 2001, the denial took out the
public safety language but stated that “the fair administration of
justice cannot be achieved through your release on parole.” In
2002 and 2003, the parole decision specified that its denial was
based on a consideration of “all matters required pursuant to the
Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq.”
        Nevertheless, it is not sufficient for a prisoner to show that
the Board relied on a new law or policy. Rather, he must also
adduce some evidence that this new law or policy disadvantaged
him by creating “a significant risk of increasing his punishment.”5
Garner, 529 U.S. at 255. We acknowledge the intuitive force of
the argument that adjudication under stricter standards is more
likely to lead to an adverse result. And we recognize that it may be
difficult for a prisoner to adduce evidence of disadvantage,
particularly since, prior to 2001, the Parole Board did not need to
give a detailed statement of reasons for denial of parole.6 But the

       5
         We note that Cimaszewski suggested that a prisoner must
show that he or she “would have been released but for the 1996
amendment” and “bears the burden of pleading and proving that
under the pre-1996 Parole Act, he would have been paroled, while
under the 1996 amendment he has not been paroled.” 868 A.2d at
428 (emphasis added). This “but for” standard, however, has no
basis in federal ex post facto law.
       6
        In 2001, however, the Pennsylvania Commonwealth Court
held in Voss, 788 A.2d 1107, that the generic rationale for denial

                                 16
evidentiary requirement of the jurisprudence must be honored. For
example, a petitioner might compare the parole rates for prisoners
with similar convictions before and after the 1996 Amendments,
state whether the Parole Guidelines would indicate that the
petitioner was a good parole candidate, or draw inferences from
the statement of reasons provided by the Parole Board regarding
the criteria used for the parole determination in that individual’s
case. Richardson has not provided any such evidence of
disadvantage as a result of the 1996 Amendments.
        In this respect, Richardson’s case is distinguishable from
Mickens-Thomas. We summarize our findings there: (1) We found
that the Parole Board relied solely on public safety in denying
Thomas parole, while disregarding the Parole Guidelines, the
unanimous recommendations of the Department of Corrections,
and the evidence of Thomas’s rehabilitation; (2) Thomas presented
convincing evidence that he had a significant likelihood of parole
under the pre-1996 guidelines, but was denied parole under the
new policy; and (3) Thomas was able to show that all prisoners
whose life sentences had been commuted prior to 1996 had been
subsequently paroled.
        Mickens-Thomas may be an exceptional case because of the
compelling nature of the evidence of prejudice. We do not require
a petitioner to muster evidence of such convincing quality,
particularly in the absence of an evidentiary hearing. Nevertheless,
our precedents require that a petitioner proffer at least some
evidence of disadvantage to warrant habeas relief.
        Richardson was convicted of third degree murder and
sentenced to 14 to 30 years. He has not provided any evidence of
the rate of parole for similarly situated prisoners before and after
the 1996 Amendments. He also has not shown, as Thomas did,
whether the Parole Guidelines, which were developed prior to
1996, would have recommended parole. Indeed, Richardson was
first denied parole on December 12, 1996, before the effective date
of the 1996 Amendments, and the Board cited the assaultive nature
of Richardson’s offense, the injury to the victim, the use of a


of a prisoner’s parole application, “the Fair Administration of
Justice cannot be achieved through your release on parole,” did not
meet due process requirements as a matter of Pennsylvania law.


                                17
weapon, and Richardson’s need for counseling and treatment as
reasons for the denial. Similar reasons appear in the post-1996
denials.
        In 2002, the reasons given for denying Richardson parole
were the recommendation of the prosecuting attorney, reports,
evaluations and assessments of his physical, mental, and behavior
condition and history, and his prior criminal record. In 2003, the
Parole Board added Richardson’s refusal to accept responsibility
for the offense committed to the list of reasons for denial. While
public safety appears to have been one factor in the denial of
Richardson’s parole, it is hard to infer from these general
statements the degree to which the 1996 Amendments impacted
Richardson’s parole determination.
        Richardson claims that, at the very least, the District Court
should be required to hold an evidentiary hearing to allow him to
develop the record on whether the 1996 Amendments prejudiced
his case. We agree with the District Court, however, that
Richardson has thus far provided no evidence, and for that matter,
has proffered no allegations, that a “significant risk” of increased
punishment was created by the application of the 1996
Amendments to his individual case. We will not order an
evidentiary hearing without allegations that state a claim for
habeas relief. See Townsend v. Sain, 372 U.S. 293, 312 (1963)
(“[T]he federal court to which the application is made has the
power to receive evidence and try the facts anew” whenever “an
applicant for a writ of habeas corpus alleges facts which, if proved,
would entitle him to relief”); Procunier v. Atchley, 400 U.S. 446,
452 (1971) (requiring a District Court “to make the threshold
determination that the respondent would be entitled to relief if his
allegations were believed” before granting an evidentiary hearing);
see also 28 U.S.C. § 2254(e)(2).
        Because Richardson has failed to make any showing (or
proffer) that he was individually disadvantaged by the retroactive
application of the 1996 Amendments, we conclude that he has not
established an ex post facto violation. We will therefore affirm the
order of the District Court denying Richardson’s petition for habeas
corpus.




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