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


5-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1579




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 05-1579
                                  ________________

                                    Barnard Taylor,

                                           Appellant

                                           v.

                     Pennsylvania Board of Probation and Parole;
                        The Attorney General of Pennsylvania

                      ____________________________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                                 (D.C. No. 04-cv-04458)
                     District Judge: Honorable Edmund V. Ludwig
                    _______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 22, 2006

    Before: SCIRICA, CHIEF JUDGE, BARRY AND COWEN, CIRCUIT JUDGES

                               (Filed: May 23, 2006)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Bernard Taylor pled guilty in 1988 to attempted rape and corruption of minors; he

was subsequently convicted of third degree murder, for which he received a consecutive

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sentence of 10-20 years’ imprisonment. In 2002 Taylor became eligible for parole, but

the Pennsylvania Parole Board declined to release him. After seeking relief in state court

from that denial of parole, Taylor filed a federal habeas corpus petition in which he

challenges not only the denial of parole in 2002 but also the Board’s subsequent parole

denials in 2003 and 2004. The District Court denied the petition, concluding inter alia

that petition was unexhausted with regard to the 2003 and 2004 denials and that all of

Taylor’s claims were meritless. This appeal followed. We issued a certificate of

appealability on the merits of Taylor’s ex post facto challenge to the Parole Board’s

decisions denying parole.1 Because he has not shown that the Board applied the 1996

amendments to his detriment, we will affirm the order of the District Court denying his

petition for habeas corpus.2

       In its February 2002 notice of rejection, the Board stated that it had “determined

that the fair administration of justice cannot be achieved through your release on parole.”

The Board recommended that Taylor follow various treatment programs and maintain a

favorable recommendation from the prison officials, and stated that it would consider his

written version of his offence and his release plan at the next interview. In October 2002



   1
     We also issued a certificate of appealability as to whether the exhaustion should be
excused as futile with respect to the 2003 and 2004 denials. However, because we
conclude Taylor’s claim is meritless with regard to all three denials, we need not address
this question. See 28 U.S.C. § 2254(b)(2).
   2
    We have jurisdiction under 28 U.S.C. § 2253. Our review is plenary. Richardson v.
Pennsylvania Bd. of Probation and Parole, 423 F.3d 282, 287 n.3 (3d Cir. 2005).

                                             2
the Board amended its decision, adding to the reasons for denying parole the nature and

circumstances of the offenses committed, the recommendation of the prosecuting

attorney, and Taylor’s need to participate in and complete additional institutional

programs. The Board’s 2003 decision was similar, except that it also cited Taylor’s lack

of remorse, his parole interview, and reports, evaluations and assessments of his

“physical, mental and behavior condition and history.” The Board’s 2004 rejection was

substantially the same as the 2003 decision.

       Taylor argues that the Parole Board violated the Ex Post Facto Clause when it

denied parole in 2002, 2003, and 2004. He contends that the Board relied upon the 1996

amendments to the statute governing Pennsylvania parole standards, which place

increased weight on public safety. Amended statute requires that the Parole Board “first

and foremost seek to protect the safety of the public.” Pa. Stat. Ann, tit. 61, § 331.1

(2006). Previously, the parole statute had emphasized rehabilitation and the restoration of

prisoners to social and economic life. See Pa. Stat. Ann., tit. 61, § 331.1 (pre-1996

version).

       As we recently explained:

       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. 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.


Richardson v. Pennsylvania Bd. of Probation and Parole, 423 F.3d 282, 287-288 (3d Cir.

                                               3
2005) (internal quotation marks, ellipses and citations omitted). We expressly rejected

the contention that the retroactive application of the 1996 amendments is a per se

violation of the Ex Post Facto Clause entitling the petitioner to automatic relief. Id. at

291.

       Taylor concentrates on the first prong of the analysis, and we will assume for

present purposes that he satisfies that inquiry. However, “he must also adduce some

evidence that this new law or policy disadvantaged him by creating a significant risk of

increasing his punishment.” Id. at 292 (quotation marks omitted). The mere intuition that

stricter standards are more likely to lead to an adverse result is insufficient. Id. Rather,

Taylor must provide such evidence as indications that he would have been a good

candidate for parole under the old law, comparisons of parole rates for prisoners with

similar convictions before and after the 1996 amendments, and the extent to which the

reasons given for denying him parole would not have been considered before 1996. Id. at

292-293.

       Taylor has made no such showing and, thus, fails the second prong of the ex post

facto analysis. Accordingly, we will affirm the judgment of the District Court.




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