                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2004

Mickens-Thomas v. Vaughn
Precedential or Non-Precedential: Precedential

Docket No. 03-3714




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                          PRECEDENTIAL

                                Filed January 14, 2004

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                     No. 03-3714


             LOUIS MICKENS-THOMAS,
                                    Appellant
                          v.
    DONALD VAUGHN; PENNSYLVANIA BOARD OF
    PROBATION AND PAROLE, THE PENNSYLVANIA
   BOARD OF PARDONS; THE ATTORNEY GENERAL
         OF THE STATE OF PENNSYLVANIA

     Appeal from the United States District Court
        For the Eastern District of Pennsylvania
                 D.C. No.: 99-cv-06161
    District Judge: Honorable Ronald L. Buckwalter

             Argued: December 15, 2003
Before: SLOVITER, McKEE, and ROSENN, Circuit Judges.

              (Filed: January 14, 2004)
                   Leonard N. Sosnov (Argued)
                   1027 Abington Avenue
                   Wyndmoor, PA 19038
                     Counsel for Appellant
                             2


                      Francis R. Filipi (Argued)
                      Office of Attorney General
                       of Pennsylvania
                      Strawberry Square, 15th Floor
                      Harrisburg, PA 17120
                        Counsel for Appellees


                OPINION OF THE COURT

ROSENN, Circuit Judge.
  This prolonged parole proceeding had its inception when
the Pennsylvania Board of Pardons (Pardons Board)
recommended to the Governor of Pennsylvania in 1994 that
he commute the life sentence of Louis Mickens-Thomas
(Thomas). The Governor commuted the sentence.
Thereafter, Thomas made several applications for parole,
each of which the Pennsylvania Board of Probation and
Parole (Board or Parole Board) denied. After exhausting all
administrative relief in the State, including appellate court
relief, Thomas applied to the United States District Court
for the Eastern District of Pennsylvania for a writ of habeas
corpus.
   The Court found that the Board had violated the ex post
facto provision of the federal Constitution. Mickens-Thomas
v. Vaughn, 217 F. Supp. 2d 570 (E.D. Pa. 2002). The Court
granted Thomas conditional relief of habeas corpus and
remanded his parole application to the Board for further
hearing under parole laws and guidelines that existed prior
to their amendment in and after 1996. The Board appealed
to this Court and we affirmed. Mickens-Thomas v. Vaughn,
321 F.3d 374 (3d Cir.), cert. denied sub nom. Gillis v.
Hallawell, 124 S. Ct. 229 (2003)(Mickens-Thomas I).
  In Mickens-Thomas I, we thoroughly reviewed the Board
proceedings and issued a mandate instructing the Board to
rectify its ex post facto violations and give Thomas “fair
consideration” under the Pennsylvania parole laws and
guidelines in existence prior to 1996. Relying on the
existing record and without conducting any further hearing,
the Board denied Thomas’s parole application for the fourth
                                   3


time on remand from the District Court. Thomas again
sought relief in the District Court, which found continuing
violations by the Board and noncompliance with our
instructions. Nonetheless, the District Court refrained from
granting Thomas’s request for unconditional habeas corpus
relief. It summarily concluded that the Board had weighed
“all factors militating for and against parole” and that it
could not substitute its judgment for that of the Board.
Thomas timely appealed. We vacate and remand to the
District Court with instructions to direct Donald Vaughn,
Superintendent of the Pennsylvania State Correctional
Institution at Graterford, and the Parole Board to release
Thomas on parole.

                                   I.
  In an effort to put this opinion in perspective, we review
our previous decision in this case.
  A.   Commutation of Thomas’s Life Sentence (1995)
  Thomas, now 75 years old, has been incarcerated for 39
years in a Pennsylvania penitentiary for his conviction in
1969 of the first-degree murder of twelve-year-old Edith
Connor.1 He was sentenced to life imprisonment, ineligible
for parole under Pennsylvania laws. Despite his conviction,
he has consistently maintained his innocence since his
incarceration. In 1993 Thomas first applied to the Pardons
Board for a commutation of his life sentence. In 1994 the
Pardons     Board     unanimously     recommended       the
commutation to the Governor. The Pardons Board noted

1. Thomas was arrested on October 15, 1964, and charged with the
murder of Connor on September 19, 1964. His initial trial resulted in a
conviction on first-degree murder charges. That conviction was vacated
in 1967 upon discovery that the Commonwealth’s lead witness, a
technician who matched fibers and debris from Thomas’s shoe repair
shop to those found on the girl’s body, had falsified her credentials and
perjured herself in another case. Mickens-Thomas I, at 376 n.3. He was
again convicted in 1969 for first-degree murder based entirely on the
testimony of Dr. Edward J. Burke, the then director of the Pennsylvania
Police Department Laboratory, who corroborated the discredited
technician’s testimony and vouched for the correctness of her testimony.
Id.; Commonwealth v. Thomas, 202 A.2d 352, 354 (Pa. 1972).
                              4


Thomas’s attainment of a college degree, his participation
in Alcoholics Anonymous, his participation in sex offender
therapy, the support of the Pennsylvania Corrections
Department, the long length of time served, the numerous
recommendations from scholars, religious and community
leaders, and his overall maturity and stability. Mickens-
Thomas I, at 377. On January 14, 1995, Governor Robert
Casey granted commutation, commuting Thomas’s life
sentence to a term of “31 years, 9 months, 6 days to life,”
making him eligible for release on parole on July 21, 1996.
  B.   Parole Board’s Initial Refusal to Consider Thomas’s
       Parole Application (1996)
   The Board initially refused to consider Thomas’s parole
application filed on July 22, 1996, one day after he became
eligible for parole, by relying on a newly enacted statute, 61
Pa. Stat. Ann. § 331.34a (West 1995), which made an
applicant in Thomas’s situation ineligible for parole without
having served a year in a pre-release center. Mickens-
Thomas I, at 380; Mickens-Thomas, 217 F. Supp. 2d at 574.
On November 26, 1996, Thomas filed a mandamus action
to challenge the Board’s refusal to consider his parole
application with the Commonwealth Court of Pennsylvania.
Mickens-Thomas v. Commonwealth, Board of Probation &
Parole, 699 A.2d 792 (Pa. Commw. Ct. 1997). The Board
conceded in that action that the new statute could not be
retroactively applied to Thomas’s application. The state
court reversed the Board’s determination of parole
ineligibility and ordered the Board to accept and consider
Thomas’s parole application within 10 days of the court’s
order. The court, however, denied Thomas’s request for an
order compelling the Board to release him on parole.
Because every effort by Thomas to obtain favorable parole
action from the Board encountered its utmost resistance, it
is reasonable to infer that Thomas’s successful appeals to
the Commonwealth Court incurred the ire of the Board.
  C.   Board’s First Denial of Thomas’s Parole Application
       (1997)
  Pursuant to the Commonwealth Court’s order, the Board
considered Thomas’s parole application on August 21,
1997, but summarily denied it. The Board denied the
                              5


application even though its Guidelines recommended his
release on parole and all voting Department of Corrections
institutional staff, including the prison counselor and
housing officer, recommended his release. Mickens-Thomas
I, at 380-81. In its decision, the Board urged Thomas to
secure the following before his next scheduled parole
application review in 1998: investigation of a home plan;
the availability of out-patient sex offender treatment;
participation in a program plan prescribed by Department
of Corrections officials; maintenance of a good conduct
record; a continuing institutional recommendation for
parole; and an evaluation by mental health professionals
experienced with sex offenders. Id. “The Board made these
recommendations in spite of Thomas’s apparent compliance
with all of the Board’s suggestions prior to the hearing.” Id.
  D.   Board’s Second Denial of Thomas’s Parole Application
       (1998)
   Before the Board considered Thomas’s second parole
application in March 1998, he had complied with all of the
Board’s suggested requirements stated in its 1997 decision.
He maintained the positive recommendation of corrections
authorities, who once more unanimously recommended his
release and noted that he was in compliance with treatment
programs. The prison counselor, corrections officer, and
psychologist all endorsed his release. He continued to
participate in a sex offender therapy program along with an
Alcoholics Anonymous program. Post-release support
networks were in place. Once again, the Guidelines relied
on by the Board assigned Thomas a risk-assessment score
that favored release. Mickens-Thomas I, at 381-82. Despite
his compliance with essentially all of the Board’s
conditions, the Board again summarily denied parole in
March 1998. In this second denial of Thomas’s parole
application, the Board again advised Thomas to seek
counseling and treatment, participate in prescribed
programming, maintain a clean record, and obtain
institutional recommendation for purposes of his next
scheduled parole application. Unlike the 1997 decision, the
1998 decision recommended no specific sex offender
treatment. Moreover, despite the comment that Thomas
needed “counseling and treatment,” psychiatric and
                                6


psychological evaluations did not contraindicate his release.
Id. at 382.
  E.   Board’s Third Denial of Thomas’s Parole Application
       (2000)
  Before the Board considered his next scheduled parole
application, Thomas filed the underlying federal habeas
action in December 1999. Shortly thereafter, the Board
denied Thomas’s parole application in March 2000 for the
third time. The Board gave as its reason the cryptic
statement that it “[had] determined that the mandates to
protect the safety of the public and to assist in the fair
administration of justice cannot be achieved through [his]
release on parole.” Mickens-Thomas I, at 382. The Board
denied parole once again, even though all voting members
of the Department of Corrections institutional staff,
including Thomas’s counselor and work supervisor,
unanimously recommended his parole. Again, he
demonstrated a continued record of good conduct in prison
and participation in sex offender therapy and all other
programs prescribed by the Department of Corrections. Id.
Despite all the recommendations and Thomas’s continuous
record of good conduct, the Board once again advised him
to maintain his Department of Corrections recommendation
as a precondition for consideration at the next scheduled
parole hearing in 2002.
   New to this third denial was the Board’s classification of
Thomas on the Guidelines form as a “habitual substance
abuser.” This increased his risk score by 2 and placed him
for the first time in an unfavorable category for release.2 Id.
at 383. The Board made the classification for the first time
based on Thomas’s alcohol abuse prior to his conviction
almost 40 years ago. The Board assigned this classification
although Thomas had not abused alcohol throughout his
incarceration and had consistently participated in
Alcoholics Anonymous. Id. We questioned “why, if past
alcohol abuse over forty years ago was a relevant factor, it
had not been considered on his two prior Guidelines

2. Our earlier opinion stated that the classification of “habitual
substance abuser” increased Thomas’s risk score by 3. The number
should have been 2.
                               7


evaluations.” Id. Also new to this third denial was the
increased risk score of 2, instead of 1, for the category of
“victim injury” as a result of a modification of the
Guidelines. Because of these new and modified risk factors,
the Guidelines-based tally of risk scores for the first time
counseled against granting parole despite Thomas’s record
of continued good behavior and the unanimous support for
his parole from the Department of Corrections institutional
staff, including his counselor and work supervisor.

                              II.

                              A.
   In our earlier opinion, we affirmed the District Court’s
grant of conditional habeas relief upon finding systematic
ex post facto violations by the Board in applying newly
amended Pennsylvania parole laws and guidelines to
Thomas’s parole applications. We noted that prior to the
amendment in 1996, the Pennsylvania parole statute
emphasized “the value of parole as a disciplinary and
corrective influence” and the society’s interest in
rehabilitating inmates. Mickens-Thomas I, at 377-78
(quoting the 55-year old parole statute, Pa. Cons. Stat.
§ 331.1 (West 1941-1996)). We also noted that after 1996,
the emphasis of Pennsylvania’s parole statute had shifted
to an overriding consideration of public safety. Id. at 377
(quoting the amended Pa. Cons. Stat. § 331.1 (West 1996)
(mandating that the parole “board shall first and foremost
seek to protect the safety of the public”)).
  We further noted that the Board’s Guidelines and parole
policies had changed correspondingly with the amended
parole statute. Before 1996, the Board’s internal policies
stated that the Board must weigh “numerous factors”
balancing the inmate’s rehabilitation and liberty interest
with the interest of public safety. Id. at 378. Specifically, we
noted that the Board’s 1989 Manual of Operations and
Procedures recognized that “[p]robation and parole services
must consider that offenders can change their behavior
patterns when desirous, capable, and given the
opportunity, help, dignity, and respect they deserve as
                              8


human beings.” Id. (emphasis added). We also noted that in
the 1990 Parole Decision Making Guidelines, the Board
stated that “[a]n eligibility of parole expresses a philosophy
of presumed release unless information reviewed
demonstrates by its preponderance that the public safety
interests of the community outweigh the liberty interests of
the inmate.” Id. (emphasis added).
  In response to the amended parole statute in 1996, we
saw that the Board substantially revised its guidelines by
emphasizing that “the foremost concern for the Board must
be the protection of the public.” Id. at 380 (quoting the
Board’s Fiscal Years 1995-1997 Biennial Report). On the
basis of undisputed Board documentary evidence, we
concluded that in the wake of the 1996 amendment to the
state parole statute, the Board had altered the weight it
applied to public safety considerations in making parole
decisions:
    The record is convincing that after 1996, the Board
    applied to the public safety interest far greater weight.
    The evidence here demonstrates that since 1996, the
    Board has given special weight to the risk to public
    safety. 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. The 1996 policy change placed first and
    foremost the public safety to the disadvantage of the
    remaining liberty interest of the prisoner.
Id. at 385.

                             B.
  We held in our earlier opinion that the Board had
violated the constitutional prohibition against ex post facto
laws in its treatment of Thomas’s first three parole
applications. The Board had thrice denied Thomas’s
application even though he had unanimous support from
the corrections officers, consistently maintained a record of
good behavior, participated in sex therapy and alcohol
abuse prevention programs, and complied with all of the
Board’s requirements. The Board had urged Thomas to
                                 9


undergo a psychiatric examination when it denied his first
application in 1997 despite the existence of pre-
commutation 1993 psychiatric reports supporting Thomas’s
parole and the existence of other psychological evaluations
in his file that did not contraindicate release.3 Mickens-
Thomas I, at 381. Additionally, although a 1996
psychological evaluation of Thomas showed an “antisocial
personality” and “possible sexual preoccupation and
psychosexual immaturity,” the Board was not deeply
concerned with that report in its decision-making
worksheet. Id. Significantly, the Board’s 1998 denial
decision, unlike its 1997 decision, did not recommend any
specific sex offender treatment. None of the existing
psychiatric and psychological evaluations, including the
1996 evaluation, contraindicated his release. Id. A 1998
psychological evaluation determined Thomas to be an
“average risk candidate” and the Department of Corrections
psychologist noted “No Psychological Contraindications” for
release in the 1998 Vote Sheet. Id.
  We observed that following Thomas’s initiation of the
underlying federal habeas action in December 1999, the
Board’s method of evaluating Thomas’s parole application
took a significant change in March 2000. For the first time,
the Board classified Thomas as a “habitual substance
abuser” for his alcohol abuse 40 years ago. Id. at 383. For
the first time, the risk score of the category of “Victim
Injury” was increased from 1 to 2 points. Id.
  On the basis of the above undisputed evidence, we held
in Mickens-Thomas I that the Board had committed an ex
post facto violation by retroactively applying the amended
parole laws and guidelines to Thomas’s applications. We
observed that “there [was] significant evidence that [the
Board] acted upon policies that were established after [his]
crime and conviction.” Id. at 387. Although the Board was
entitled to discretionary judgment in making parole
determinations, the exercise of that judgment was

3. A 1993 report called Thomas “a good candidate for commutation from
the psychological perspective,” and another 1993 psychiatric report
added that Thomas “[had] developed significantly during his years of
imprisonment.” Mickens-Thomas I, at 382.
                             10


circumscribed by constitutionally permissible perameters.
There was no question that Thomas was entitled to “have
the Board give genuine consideration and due regard to the
factors prescribed by the Board’s pre-1996 policies.” Id.
   We concluded that “it [became] evident that, although the
risk of potential danger to the public [had] always been a
factor, it became the controlling feature of the Board’s
decision after 1996.” Id. at 388. “The Board defaulted
[therefore] in its duty to consider factors other than the
underlying offense and risk to public safety; it [had] failed
to address any of the factors favoring release.” Id.
  We described the statistical evidence as “staggering,”
noting that in 266 simultaneous instances of commuted life
sentences, Thomas was the only one not granted parole
within the first two attempts. Id. at 385, 387. It “strongly
confirm[ed] the change in policy [since] 1996.” Id. at 385.
Historically, “the gubernatorial grant of commutation of
sentence had such significance that the Board agreed to
parole every commutee on his or her first or second
application.” Id. at 385. We determined that “[t]he Thomas
application [was] distinguished from [those] 266 cases only
by the intervening policy directive of 1996, emphasizing
public safety.” Id. We accordingly affirmed the District
Court’s order remanding Thomas’s parole application to the
Board for review under the pre-1996 parole standards. Id.
at 393.
  In our remand mandate, we provided the Board with
guidelines to rectify its constitutional violations. We
informed it that
    prior to 1996, the Board’s concern for potential risks to
    public safety could not be the sole or dominant basis
    for parole denial under the existing Guidelines.
    Considerations of public safety were already
    incorporated into its Guidelines analysis; the Board
    had to point to “unique” factors as a basis for its
    rejection of the Guidelines. Moreover, the Board had to
    weigh 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
                               11


       could not have been the basis of granting or rejecting
       parole.
Id. at 386. We advised the Board that it could not shield
itself from constitutional violations by relying on the
“discretionary component” of its parole review. Id. at 386-
87. We rejected “the Board’s reasoning [that its]
determination, founded on newly discovered experience,
could, by virtue of the Board’s exalted discretion, forever
deny a prisoner’s preexisting right to parole consideration.”
Id. at 387. “Although some discretion might still exist
within the pre-1996 parameters, a parole decision that fails
to address any of the criteria mandated by Board policy,
such as institutional recommendations, willingness to
undergo counseling and educational achievement, 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.

                               C.
  In our earlier opinion, we specifically instructed the
Board to rectify the unconstitutional manner in which it
used certain historical factors retroactively to achieve a
predetermined result of parole denial.
  1.    Prior history of alcohol abuse
   We observed that Thomas had a record of alcohol abuse,
but not drug abuse, prior to his conviction in 1964 and
that he had consistently attended Alcoholics Anonymous
while in prison. Mickens-Thomas I, at 383, 390. The Board
did not assign any risk score for his prior history of alcohol
abuse in its 1997 and 1998 decisions. Id. at 383. For the
first time in its 2000 decision, the Board assigned a risk
score of 2 for Thomas’s alcohol abuse almost 40 years ago
“despite no changes in his situation.” Id. We questioned
“why, if past alcohol abuse over forty years ago was a
relevant factor, it had not been considered on his two prior
Guidelines evaluations.” Id. We decided that the Board’s
use of Thomas’s prior history of alcohol abuse was a post
hoc rationalization “designed to achieve” a denial of
Thomas’s parole under the new regime of parole laws and
guidelines. Id. at 390. “There is no evidence that alcohol
                             12


abuse should, suddenly, as of the 2000 report, be given
such significance: The Guidelines recommendation in 2000
is not worthy of consideration because it appears to have
been deliberately designed to achieve a non-parole
decision.” Id.
  2.   Non-admission of guilt and non-participation in the
       “admitter” part of sex offender therapy program that
       requires admission of guilt
   Although the Board was concerned in the past by
Thomas’s participation in the “deniers” group of the sex
therapy program, the Board’s prior decisions, including the
2000 one, made no specific mention of the “admitter-
denier” distinction and the Board’s internal notes regarded
Thomas’s consistent denial of guilt in a “neutral” way. Id. at
381-82, 381 n.12. Specifically, we noted that the Board’s
internal files accompanying its 1997 and 2000 decisions
merely commented, in a neutral way, that Thomas
participated only in “denier” sex therapy and denied guilt
for his crime without further comment or discussion of how
these factors may have outweighed others favoring release.
Id. at 389. “Significantly, the Board in 1997 and 1998 failed
to mention lack of responsibility (or any other factor) in the
section of the Guidelines worksheet where specific space
[was] allotted to provide unique reasons for departing from
a Guidelines recommendation.” Id. “Moreover, the
recommendation that Thomas receive [the “admitter” part
of] sex offender therapy, which appeared on the 1997
report, did not appear on the 1998 Decision or worksheet.
Then, inexplicably, the recommendation for sex offender
therapy reappeared on Thomas’s 2000 parole-refusal
report.” Id.
  Only when the Board was forced to defend Thomas’s
charges of constitutional violations in the underlying federal
habeas action did it assert, for the first time in its earlier
brief to us, that Thomas’s nonadmission of guilt and
consequent failure to complete the part of the sex offender
therapy program that required admission of guilt counseled
against his release. Id. We observed that there was no
evidence that the Board had ever properly communicated to
Thomas its “renewed concern” over his participation only in
the “denier” part of sexual offense therapy “given that the
                              13


reasons for denial in the Board Decision [were] vague and
boilerplate.” Id. We determined that the Board’s post hoc or
retrospective use of the factors of Thomas’s nonadmission
of guilt and his nonparticipation in the “admitter” part of
sex offender therapy to justify its parole denial “cast[ ] still
more doubt on the genuineness of the [Board’s] concern.”
Id.
  3.   “Instant offense” and “victim injury”
   We held that the Board committed ex post facto violations
by relying on the factors of “instant offense,” that is, the
rape and murder charges of which Thomas was convicted,
and “victim injury” to the exclusion of consideration of
Thomas’s rehabilitation interest. Instead of using the
balancing approach required under the pre-1996 regime of
parole laws and guidelines, the Board had relied “primarily
[on] the nature of the original offense” in denying Thomas’s
applications “despite many other significant factors favoring
parole.” Id. at 388. “Given its indifference to Thomas’s
efforts to improve his parole candidacy, and its repeated
reliance on Thomas’s ‘instant offense’ and his potential for
future ‘assaultive behavior,’ despite the Guidelines’ finding
that Thomas was not a recidivism risk, the Board appeared
to rely exclusively on the nature of the underlying offense
and the potential danger to the public if Thomas were
released.” Id. at 388-89.
  We found further ex post facto violations in the Board’s
application of enhanced risk penalty for the factor of “victim
injury” to Thomas’s applications. “The new Guidelines,
implemented between 1998 and 2000, placed more weight
on ‘Victim Injury.’ ” Id. at 386 (“The 2000 Board Decision
denying Thomas’s parole noted that its action was
consistent with the Board’s ‘mandate’ to protect the public.
This language did not appear on earlier Board decisions
and reflects its new parole policy.”) (emphasis in original).
We were convinced that the Board’s “new valuation” of the
category of “victim injury,” evidenced by the assignment of
2 risk points to Thomas’s 2000 application, instead of the
1 point assigned to his first two applications for the same
category, “further evidence[d] the advent of new policies and
emphasis on public policy on the part of the Board.” Id. at
390 n.16. We decided that “[t]he Board [had] defaulted in
                             14


its duty to consider factors other than the underlying
offense and risk to public safety” and “[had] failed to
address any of the factors favoring release.” Id. at 388.

                             D.
  Our mandate to the Board to rectify its ex post facto
violations could not be clearer in the following paragraphs
of our opinion:
    The pre-1996 policies place significant weight on
    factors relating to an inmate’s potential to adapt to life
    on the outside, and on the recommendations of the
    institutional staff. The pre-1996 policies suggest that
    no single factor should be controlling in a decision to
    deny parole to an applicant. Moreover, the pre-1996
    Decision Making Guidelines were given significant,
    although not dispositive weight. A departure from the
    Guidelines required a recitation of unique factors,
    outweighing those in the Guidelines analysis. The
    Board Decisions on each of Thomas’s parole hearings
    rely heavily on “high assaultive behavior potential,”
    which relates primarily to the nature of the original
    offense, despite many other significant factors favoring
    parole.
Id. at 388 (emphasis in original).
  We cautioned the Board that, on remand,
    The Board will not be defensive, but instead will fairly
    consider Thomas’s application in the light of our
    observations and Ex Post Facto prohibitions. If the
    Guidelines recommend release, the Board should fairly
    consider the weight of this recommendation. A decision
    contrary to a Guidelines recommendation must be
    buttressed by unique factors which outweigh the
    Guidelines endorsement. Moreover, release on parole is
    a Board policy presumption, and parole should be
    granted    unless    countervailing negative    factors
    affirmatively outweigh reasons supporting release.
Id. at 393 (emphasis added).
                                   15


                                   III.

                                   A.
   None of the parties dispute that the District Court had
subject matter jurisdiction over the underlying habeas
action under 28 U.S.C. §§ 1331, 2241 and 2254(a), and
that we have appellate jurisdiction under 28 U.S.C. §§ 1291
and 2253. However, on this appeal, the Board, citing 28
U.S.C. § 2253(c)(1) and Coady v. Vaughn, 251 F.3d 480,
486 (3d Cir. 2001), argues that we should dismiss
Thomas’s appeal because he has not obtained a certificate
of appealability from either the District Court or this Court.4
The Board’s argument has no merit; on the same page of
our Coady opinion relied on by the Board, we construed a
timely filed notice of appeal as a request for a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(1) and Fed. R.
App. Proc. 22(b)(2).5 Coady, at 486. It is not disputed that
Thomas filed a timely notice of appeal from the District
Court’s latest decision, and we construe his timely filed
notice of appeal as a request for a certificate of
appealability. Of utmost importance, this Court has
continuing jurisdiction over this appeal to determine
whether the Board has complied with the District Court’s
remand order and our remand mandate. See Phifer v.
Warden, 53 F.3d 859, 861 (7th Cir. 1995) (“[A] district court

4. 28 U.S.C. § 2253(c)(1) (1996) provides:
    (c)(1) Unless a circuit justice or judge issues a certificate of
    appealability, an appeal may not be taken to the court of appeals
    from—
      (A) the final order in a habeas corpus proceeding in which the
      detention complained of arises out of process issued by a State
      court; or
      (B)   the final order in a proceeding under section 2255.
5. Federal Rules of Appellate Procedure 22(b)(2) (1998) provides:
    A request addressed to the court of appeals may be considered by
    a circuit judge or judges, as the court prescribes. If no express
    request for a certificate is filed, the notice of appeal constitutes a
    request addressed to the judges of the court of appeals.
                                    16


retains jurisdiction to determine whether a party has
complied with the terms of a conditional order.”).
   Where the District Court conducted no evidentiary
hearing and made no new findings of fact as to Thomas’s
motion to enforce the Court’s previous grant of conditional
habeas relief, we review de novo the District Court’s legal
conclusion that the Board has essentially complied with
our mandate to the Board to rectify its constitutional
violations. See Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.
2000) (in a federal habeas corpus proceeding, the Court of
Appeals exercises plenary review over the District Court’s
legal conclusions); Lambert v. Blackwell, 134 F.3d 506, 512
(3d Cir. 1997); Barden v. Keohane, 921 F.2d 476, 479 (3d
Cir. 1990) (the Court of Appeals exercises plenary review
over the District Court’s legal conclusions which formed the
basis of the Court’s denial of the habeas corpus petition).

                                    B.
  Following the issuance of our mandate in Mickens-
Thomas I, the Board did not conduct any hearing or call
any witness. It did not consider any “unique factors” that
were not already incorporated in its prior-1996 Guidelines.
Instead of balancing factors favoring parole with unique
factors that may weigh against parole, the Board
considered the same old factors in the same manner found
by us to be violative of the ex post facto prohibition in our
earlier opinion.
  1.   Prior history of alcohol abuse
  The Board defied our instruction to discontinue its
pretextual use of Thomas’s alcohol abuse 40 years ago and
once again relied on that factor as a post hoc defense of its
unconstitutional method of reviewing Thomas’s parole
applications.6 The Board ignored our inquiry pertaining to

6. The Board wrote:
    Your history of substance abuse (alcohol) which has led to police
    arrests and has resulted in several instances of assaultive sexual
    behavior directed towards women and children. The record also
    reflects that you had been drinking on the morning and the night
    before you murdered Edith Connor.
Board’s Decision, III (1), at 2, A30.
                             17


the relevance of this 40-year-old factor. The Board failed to
consider, as we expressly required it to do, whether Thomas
should be deemed to have been rehabilitated with his
present history of sobriety for 40 years in prison, his
consistent participation in Alcoholics Anonymous, and his
compliance with the prison’s alcohol abuse prevention
programs.
   The Board has in fact foreclosed any possibility of
rehabilitation for Thomas no matter how successful he has
been in not abusing alcohol or how often he has
participated in alcohol abuse prevention programs. The
following paragraph from the latest Board decision is a
telling example of its continuing unconstitutional practice:
    Your peacetime interaction with able-bodied male
    prisoners while sober (since alcohol is not available in
    prison) is not a reliable predictor of your behavior
    toward defenseless women and children, your likely
    victims if you are released and able to consume
    alcohol.
Board’s Decision, IV (2), at 5, A30. The Board obviously has
presumed that having abused alcohol prior to his murder
conviction, Thomas will always abuse alcohol regardless of
his successful participation in the prison’s alcohol abuse
prevention programs. That presumption would preclude
any possibility of rehabilitation and doom any prospect of
parole. As we noted earlier, the Board was required to
consider an inmate’s rehabilitation under the pre-1996
regime of parole laws and guidelines. We mandated that
constitutional requirements compelled the Board to duly
consider pre-1996 factors showing Thomas’s rehabilitation.
  As Thomas shows on appeal, the Board added the
category of prior history of “substance abuse” to its
Guidelines around 1990 to counter illicit drug abuse, rather
than alcohol abuse. See Board’s 1990 Parole Decision
Making Guidelines, A247 (the prior record of substance
abuse history was “intended to represent a clear sanction to
those who are prone to crime because of either drug
dependency or a chosen life of crime as indicated by their
habitual behavior” (emphasis added); Board’s 1991 Special
Report to Pennsylvania House Judiciary Committee, A258
                             18


(“Although convictions for drug law violations were skewed
toward the low end of the risk of recidivism classification,
illegal drug use is an important underlying determinant in
the etiology of crime.”) (emphasis added), A277 (“Substance
abuse history was added as a weighted parole consideration
factor because of the increasing drug problem.”) (emphasis
added).
  We believe that the Board’s sudden reliance on Thomas’s
alcohol abuse 40 years ago and its equation of “substance
abuse” with alcohol abuse since 2000 was designed to
negate Thomas’s parole. The Board’s reliance on that factor
was not only unjustifiable under the Board’s guidelines and
policies, but also unconstitutional because the Board
retroactively applied a factor that it had suddenly found to
be significant based on the amended parole statute and
new policies.
  The following paragraph from the Board’s latest decision
reveals its flagrant disregard of our prior decision and
mandate:
    Note: The 1990 Guidelines mandate that such
    instances of alcohol abuse be added into the Guideline
    score and do not allow exceptions based on the length
    of incarceration or upon participation in institutional
    alcohol abuse programs. Evidence in the file clearly
    demonstrates your history of alcohol abuse; and, at
    your recent interview, you admitted abusing alcohol
    prior to conviction. The omissions of this fact in any
    previously-computed 1990 Guideline Form was therefore
    erroneous.
Board’s Notice at 2, A30 (emphasis added); see also Board’s
Br. at 16.
   The Board offers no evidence to support its assertions;
undisputed evidence shows the opposite. The Board plays
its card of discretionary power cynically and conveniently to
suit different purposes. Before, the Board represented that
it had absolute, unreviewable discretionary power in parole
decision-making in order to resist federal habeas review.
Now, it claims that it has no discretion in order to defy our
mandate to rectify constitutional violations. If the Board
had indeed had no discretion, Thomas would have been
                                    19


paroled in 1997 or 1998 since the tally of the scores on the
Board’s Guidelines forms militated in favor of parole; on
both occasions the Board exercised its discretionary power
to deviate from the Guidelines and the unanimous
recommendation of the corrections staff. The Board
summarily denied Thomas’s application despite his record
of continuous good conduct, compliance with the prison’s
rehabilitation programs, and educational accomplishments
during his 40-year-long incarceration.
  2.   Non-admission of guilt
   The Board also defies our instruction to discontinue its
manipulation of the hitherto insignificant factors of
Thomas’s non-admission of guilt and his participation only
in the “denier” part of sex offender therapy program. We
noted earlier that the Board had viewed these factors
neutrally, even in the year 2000, and that it asserted those
factors as a post hoc defense of its practice for the first time
in its previous brief to us. The Board now has not only
defied our instruction to disregard those factors, it has also
gone two steps further in a continued course of
constitutional violations. First, to manipulate a result of
denial, the Board for the first time expressly equates a
claim of innocence with remorselessness and refusal to
accept responsibility, which the Board equates in turn with
failure of rehabilitation and likelihood to commit new
crimes if paroled. This position is flatly contrary to the
Board’s position in the original habeas corpus hearing
when its counsel stated that Thomas had completed all
sexual programs available to him.7

7. The Board’s assertion is belied by its counsel’s statement in the
original habeas hearing before the District Court held on December 18,
2001. Thomas’s attorney, Sosnov, represented to the Court that the
parties had stipulated that “Mr. Thomas, both before his parole
considerations in 1997 and 1998 and since, has taken and completed all
[the sexual offender treatment] programs available to him through the
J.J. Peters Institute.” A712. The Board’s attorney, Guido, represented to
the court immediately thereafter: “That’s correct. . . . [He has taken and
completed] all programs which are available to him through the Joseph
J. Peters Institute.” A712. In view of its previous stipulation, the Board’s
assertion as to Thomas’s failure to complete the sexual offender
prevention program must be disregarded.
                                   20


  Second, as asserted by Thomas, the Board has
committed a new and glaring instance of ex post facto
violation by applying a newly enacted statute retroactively
to Thomas.8 The Board’s recent requirement that Thomas
participate in the “admitter” part of sex offender therapy
program to qualify for parole is in essence a retroactive
application of 42 Pa. Stat. Ann. § 9718.1, enacted in
December 2000.9 That statute provides that a sexual

8. The Board wrote in part:
    Because you have refused to accept responsibility for your crimes,
    you have completed only the first phase of a required three-phase
    sexual offender treatment program. For this reason the Board has
    concluded (1) that factors of risk in your case (as measured in the
    Guideline score) have not been sufficiently reduced by your
    inadequate participation in such institutional treatment and (2) that
    the quality of your participation does not favorably correspond with
    the level of risk involved. The level of risk in your case involves the
    danger of sexual assault and murder to women and children. The
    quality of your participation has been poor, because it has been
    remorseless and without empathy for your victim and her family.
    You have consistently refused to accept responsibility for your
    crimes and have shown no remorse. The Board believes that
    acceptance of guilt is the first and most necessary step toward
    rehabilitation. . . . You have not taken this first step. Nor does the
    Board believe that you are in any sense justified in denying guilt,
    since you were convicted by jury of your peers and your conviction
    as upheld by the Supreme Court of the Commonwealth of
    Pennsylvania. . . .
    Your refusal to accept responsibility for your crimes has prevented
    you from completing the sexual offender therapy so essential in your
    case.
Board’s Notice, IV, at 4, A3; V (4-5), A33 (emphasis added).
9. 42 Pa. Stat. Ann. § 9718.1 (West 2003), provides in relevant part:
    (a) General rule.—A person, including an offender designated as a
    “sexually violent predator” as defined in section 9792 (relating to
    definitions), shall attend and participate in a Department of
    Corrections program of counseling or therapy designed for
    incarcerated sex offenders if the person is incarcerated in a State
    institution for any of the following provisions under 18 Pa. C.S.
    (relating to crimes and offenses): (1) Any of the offenses enumerated
                                     21


offender involving a minor “shall not be eligible for parole
unless the offender has . . . participated in [the sex offender
therapy program prescribed by the Department of
Corrections].”10 Even though the Board did not specify the
statute in making the above requirement, there is no
question that the Board’s new requirement commits
another instance of a continuous course of ex post facto
violations.
  3.    “Instant offense” and “victim injury”
  The Board also defies our instruction not to use the
factors of “instant offense” and “victim injury” to exclude
consideration of factors favoring Thomas’s parole. The
Board’s latest decision repeated what we described earlier
as its “indifference to Thomas’s efforts to improve his parole
candidacy” by repeatedly relying on those factors. We
required the Board to balance factors favoring Thomas’s
parole with any “unique factors” that may weigh against

    in Chapter 31 (relating to sexual offenses) if the offense involved a
    minor under 18 years of age. . . .
    (b) Eligibility for parole.—For an offender required to participate in
    the program under subsection (a), all of the following apply:
       (1) The offender shall not be eligible for parole unless the
       offender has:
       (i)    served the minimum term of imprisonment;
       (ii)   participated in the program under subsection (a); and
       (iii) agreed to comply with any special conditions of parole
       imposed for therapy or counseling for sex offenders, including
       sexually violent predators. . . .
Section 3 of Act No. 2000-98 (December 20, 2000), P.L. 721, No. 98,
provides in relevant part:
    This act shall apply as follows:
    (1) [T]he addition of 42 Pa.C.S. § 9718.1 shall apply to offenses
    committed on or after the effective date of this act.
10. It is not disputed that one part of the prescribed J.J. Peters Institute
program required admission of guilt and that Thomas did not participate
in that part.
                                 22


parole, factors that were not already incorporated into the
Guidelines forms. The Board failed to comply with our
instruction and again “defaulted in its duty to consider
factors other than the underlying offense and risk to public
safety.” Mickens-Thomas I, at 388. Defying our instruction,
the Board used the above two factors in the same old
manner to foreclose any consideration of factors showing
Thomas’s rehabilitation and accomplishments. The Board
wrote:
       There are no meaningful circumstances countervailing
       the Guideline recommendation to refuse parole
       . . . .
       Your educational achievement and lack of assaultive
       behavior while in prison do not alter this conclusion,
       for the following reasons:
       (1) Your assaultive sexual behavior, not your lack of
       education, has caused your present predicament.
       Sexual criminality and higher education are not
       mutually exclusive, since your sexual problems have
       not been adequately addressed, you remain, in the
       Board’s opinion, a dangerous sexual offender, whatever
       your education.
Board’s Notice, IV, at 4-5, A31-32.
   In the same manner of its post hoc rationalization of
Thomas’s prior history of alcohol abuse, the Board uses the
historical factors of “instant offense” and “victim injury” to
foreclose any possibility of parole, in an apparent effort to
circumvent the constitutional ex post facto prohibitions.
The Board’s use of the historical factors for this purpose is
also tantamount to nullifying Thomas’s commutation and
resentencing him to life imprisonment without eligibility of
parole in violation of the Pennsylvania pre-1996 law and
parole guidelines.
  4.     Other factors not previously relied upon
  The Board’s latest decision went further in relying on
historical information not previously relied upon in its effort
to circumvent our mandate to rectify its ex post facto
violations.11 The Board had never used Thomas’s 58-year-

11. The Board wrote:
    Other factors (not counted in 1990 Guideline score) which indicate
                                    23


old juvenile offense and other dismissed charges, arrests,
and uncharged accusations in its previous decisions. The
Board also relies now on hearsay statements from Thomas’s
former wife for the first time to justify its decision. Those
new factors, never used by the Board before, are not worthy
of consideration because they appear to have been designed
to achieve a non-parole decision and also obscure ex post
facto prohibitions. Mickens-Thomas I, at 390.

                                    C.
  In our earlier opinion, we did not have occasion to
consider whether the history of the Board’s adjudication of
Thomas’s parole applications over the years had shown a
pattern of unconstitutional retaliation or vindictiveness
against Thomas for his initiation of state and federal legal
actions challenging the Board’s actions. A renewed look at
the Board’s pattern of adjudicating Thomas’s parole
applications has raised sufficient inferences of retaliation or
vindictiveness.
  A review of the history of the parole application shows
that after each time Thomas brought an action to challenge

    that parole should be denied:
    (1) You have a history of multiple prior assault arrests, including
    the following:
      A.   In 1945 you were arrested for rape (juvenile).
      B. In 1959 you were charged with choking a pregnant woman
      with a scarf, until she passed out.
      C. In 1959 you were also accused of attacking a 14-year old
      babysitter, with your pants removed and she fighting to get free.
      D.   In 1961 you were accused of assault with a black jack.
    (2) Statements from your former wife indicate that when you drank
    you always wanted to engage in sodomy and would beat and choke
    her if she refused to comply.
    (3) Your anger and resentment toward women was evident in your
    recent interview.
Board’s Notice, V, at 5-6, A32-33 (emphasis added).
                             24


the Board’s ex post facto violations, the Board resorted to
factors not previously considered relevant or significant in
order to reach parole denial. As we noted earlier, the Board
initially refused to consider Thomas’s parole application
when he became eligible for parole in July 1996 because of
the Board’s determination that a newly enacted statute
required an otherwise eligible parole applicant to serve a
year in a pre-release center before applying for parole. After
Thomas successfully brought the state mandamus action in
November 1996 for the ex post facto violation, the Board
summarily denied his first parole application despite his
record     of   consistent   good    behavior,    substantial
accomplishments, unanimous support from the corrections
staff, the weight of gubernatorial commutation, the Board
of Pardons’ commutation recommendation to the Governor,
and the Board’s own Guidelines-based scores militating in
favor of parole.
  The Board’s initial refusal to consider Thomas’s parole
application cost him one full year before his application was
heard. The Board summarily denied Thomas’s second
parole application in 1998, after Thomas filed a state
habeas petition with the Pennsylvania Supreme Court, even
though he had satisfied every precondition suggested by the
Board, maintained a continued record of good behavior,
unanimous support, and the Guidelines’ score favoring
parole. Soon after Thomas brought the underlying federal
habeas action in December 1999, the Board denied
Thomas’s third application in March 2000 by suddenly
relying on Thomas’s alcohol abuse 40 years ago to tilt the
Guidelines-based risk scores against parole. At that point,
the tally of risk scores disfavored parole for the first time.
  In appealing from the District Court’s earlier grant of
conditional habeas relief, the Board suddenly resorted to
Thomas’s non-admission of guilt and non-participation in
the “admitter” part of sex offender therapy programs to
justify its unconstitutional conduct. Finally, on this appeal,
the Board suddenly used the historical information of
Thomas’s alleged juvenile misconduct 58 years ago prior to
his incarceration, and hearsay statements from Thomas’s
former wife ostensibly to show “compliance” with our earlier
instruction to it to consider “unique factors” that may weigh
against parole.
                             25


  It is not disputed that the Board had been aware of those
newly added factors and information. However, it had not
deemed them to be relevant or significant before each
denial of parole or appearance before the District Court or
this Court. The sudden, post hoc and retrospective use of
those factors in response to Thomas’s challenges in the
state and federal courts raises a sufficient inference of
unconstitutional retaliation or vindictiveness. In Marshall v.
Lansing, 839 F.2d 933, 947-48 (3d Cir. 1988), we held that
there was a sufficient “inference of retaliation” when the
United     States    Parole    Commission      imposed     an
administrative punishment on a petitioner after he
successfully appealed the Commission’s determination of
his offense severity index for an earlier marijuana usage
that the Commission had reviewed but imposed no
punishment. We observed that the Commission did not
choose to exercise its discretion to penalize the petitioner
for his marijuana usage until after he had challenged its
determination in court. Id. We held that
    the Commission’s unexplained decision to add two
    months to [the petitioner’s] term of incarceration
    because of conduct that occurred before the time of the
    original sentencing proceeding . . . which it ignored
    until its parole release determination was judicially put
    into question, creates a sufficient appearance of
    vindictiveness to justify voiding the penalty.
Id. at 948 (citation omitted) (emphasis in original).
  We similarly conclude here that the Board’s use of known
but hitherto uncounted historical factors after Thomas
brought state and federal actions has created “a sufficient
appearance of vindictiveness to justify voiding” any
consideration of those newly added factors. Those factors
are not only unworthy of consideration, but also raise a
“presumption of vindictiveness” on the part of the Board.
See id. at 947. Nothing in the record or the Board’s briefs
rebuts the presumption of vindictiveness; the Board’s thinly
veiled excuse of error for its non-consideration of Thomas’s
prior history of alcohol abuse reinforces the presumption of
vindictiveness. Furthermore, “[t]he combination of the
[Board’s] failure to comply with [our instructions] and the
appearance of vindictiveness in imposing a penalty for [the]
                              26


previously-ignored [prior history of alcohol abuse] only after
a successful appeal . . . raises an inference of bad faith on
the part of the [Board].” Id. at 950. The Board’s thinly veiled
excuse of error leaves us with no doubt of its bad faith and
willfulness in its defiance of our mandate and instructions.

                              D.
  From the very first time we heard the initial appeal by the
Board to this Court, we have carefully refrained from
intruding on the Board’s discretionary powers. We stated
that we were “exceedingly reluctant to usurp the Board’s
functions” and expressed the hope that on remand “the
Board will not be defensive, but instead will fairly consider
Thomas’s application in the light of our observations and ex
post facto prohibitions.” Mickens-Thomas I, at 393. Our
hopes, however, were illusory. We expected Board
sensitivity to respect constitutional concerns. The
combination of willful noncompliance, bad faith, and a
sufficient inference of retaliation or vindictiveness on the
part of the Board convinces us that it would be futile to
further remand Thomas’s parole application to the Board
for a fair disposition under the pre-1996 regime of parole
laws and guidelines.
   We, therefore, conclude that the appropriate remedy
under these circumstances is to grant Thomas
unconditional habeas corpus relief. See Bridge v. United
States Parole Commission, 981 F.2d 97, 105 (3d Cir. 1992)
(quoting Billiteri v. United States Board of Parole, 541 F.2d
938, 944 (2d Cir. 1976); Billiteri, at 944 (“The only remedy
which the court can give is to order the Board to correct the
abuses or wrongful conduct within a fixed period of time,
after which, in the case of non-compliance, the court can
grant the writ of habeas corpus and order the prisoner
discharged from custody.”); Billiteri, at 946 (“If the case was
before the court on a petition for habeas corpus, it may
order compliance within a reasonable period, failing which
it may order the petitioner discharged from custody.”);
Thompson v. Armontrout, 808 F.2d at 28, 31-32 (8th Cir.
1986), cert. denied, 481 U.S. 1059 (1987) (affirming the
federal District Court’s grant of unconditional habeas
corpus relief to a Missouri state inmate upon finding of
                              27


vindictiveness on the part of the state parole board in
denying the inmate’s parole application following the
inmate’s successful challenge of his prior conviction).

                              IV.
  The judgment of the District Court denying Thomas’s
motion for unconditional habeas relief is hereby vacated.
The case is remanded to the District Court with directions
to order Donald Vaughn, Superintendent of the
Pennsylvania State Correctional Institution at Graterford,
and the Parole Board to release Thomas on parole within
seven (7) days of their receipt of the District Court’s order.
The mandate of the Court shall issue forthwith.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
