                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1890




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"Hart v. PA Bd Probation" (2003). 2003 Decisions. Paper 92.
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                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 03-1890
                              ___________

                        ALEXANDER V. HART

                                     v.

PENNSYLVANIA BOARD OF PROBATION AND PAROLE; PHILIP L. JOHNSON,
                       and MIKE FISHER,

                                          Appellants
                      ________________________

   ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
              WESTERN DISTRICT OF PENNSYLVANIA

            District Court Judge: The Hon. Donetta W. Ambrose
                          (D.C. Civil No. 01-1768)
                               ___________

               Submitted Under Third Circuit L.A.R. 34.1(a)
                           October 21, 2003

          Before: ALITO, FUENTES, and ROSENN, Circuit Judges.

                   (Opinion Filed: November 25, 2003)
                      ________________________

                       OPINION OF THE COURT
                      ________________________
FUENTES, Circuit Judge:

       In 1985, Petitioner/Appellee Alexander Hart began serving a 10-20 year sentence after

pleading guilty to aggravated assault, robbery, burglary and criminal conspiracy. He became

eligible for parole on May 25, 1995, and was denied parole five times between October 1995

and November 2000, largely based on the Pennsylvania Parole Board’s determination that

he posed a continued threat to the community.           Meanwhile, in 1995 and 1996, the

Pennsylvania Parole Act was amended to shift the focus of the parole program from prisoner

rehabilitation to protection of public safety. Hart filed a Petition for a Writ of Habeas Corpus

in September 2001, asserting, among other things, that Appellants rejected his parole request

based on the Parole Act amendments and that, because these amendments postdated his

conviction, their application to his parole requests violated the Ex Post Facto clause of the

Constitution. The District Court agreed, relying on this Court’s decision in Mickens-Thomas

v. Vaughn, 321 F.3d 374 (3 rd Cir. 2003), cert. denied, No. 03-47, 2003 WL 21692664, at *1

(U.S. Oct. 6, 2003). The District Court accordingly remanded to the Board for a new hearing

by the Pennsylvania Parole Board under the standards of the Pennsylvania Parole Act prior

to the amendments of 1995 and 1996.

       On appeal, the state officials do not contend that Mickens-Thomas is distinguishable

from the case before us, nor do they argue that the District Court improperly applied that

case. Rather, the state officials contend that Mickens-Thomas was wrongly decided and

ought to be overruled by the Court en banc. Appellants’ Br. at 16. Specifically, they contest



                                              -2-
that the Mickens-Thomas court’s ruling that the Parole Board understood the Parole Act

amendments as substantively changing Pennsylvania law.            Appellants argue that the

Mickens-Thomas court should have looked only to legislative intent, not to the Parole

Board’s understanding of that intent; alternatively, Appellants assert that the Mickens-

Thomas court misread the Parole Board’s understanding of the Parole Act amendments.

       Mickens-Thomas is a binding precedential opinion, and can only be overturned by an

en banc panel of this Circuit or by the Supreme Court. E.g., Blair v. Scott Specialty Gases,

283 F.3d 595, 610-11 (3 rd Cir. 2001); see also Hollawell v. Gillis, No. 99-3996, 65 Fed.

Appx. 809, 816 (3 rd Cir. Apr. 23, 2003) (“this panel of the court cannot, as the

Commonwealth would like, overrule Mickens-Thomas even if we might disagree with it”).

We note that the court en banc of this Circuit denied the petition for rehearing, and that on

October 6, 2003, the Supreme Court denied the petition of the Pennsylvania Parole Board for

certiorari. Mickens-Thomas, therefore, is the law of this Circuit. Here, after carefully

examining the record and the arguments presented, the District Court determined that remand

to the Parole Board was warranted based on the teachings of Mickens-Thomas. We discern

no error in the District Court’s ruling. Accordingly, we affirm the District Court’s judgment.




                                             -3-
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.




                                                      /s/ Julio M. Fuentes
                                                          Circuit Judge


Hart v. PA Board of Probation and Parole
No. 03-1890

ALITO, Circuit Judge, concurring.

      I concur in the judgment and opinion of the Court because our panel is required to

follow Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), cert. denied, 124 S. Ct. 229

(2003).




                                         s/s Samuel A. Alito, Jr.




                                           -4-
