                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-1-2009

Pleaze v. Klem
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4652




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                                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 07-4652
                                    ____________

                                  DARREN PLEAZE,
                                                          Appellant

                                            v.

                   SUPERINTENDENT EDWARD KLEM;
            PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
           ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
                            ____________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. No. 07-cv-00830)
                     District Judge: Honorable James M. Munley
                                    ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 2, 2009

  Before: FISHER and CHAGARES, Circuit Judges, and DIAMOND,* District Judge.

                                  (Filed: July 1, 2009)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.



      *
       Honorable Paul S. Diamond, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
       Darren Pleaze appeals the order of the District Court denying his petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the District Court erred in

rejecting his claim that the Pennsylvania Board of Probation and Parole (the “Parole

Board”) violated the Ex Post Facto Clause of the U.S. Constitution by subjecting him to

the requirements of a statute passed more than a year after his conviction. We disagree

and will affirm.

                                              I.

       We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

       Pleaze was convicted of robbery in the Court of Common Pleas of Allegheny

County on March 29, 1999. He is currently serving a five-and-a-half to eleven year

sentence in the state prison system, with his maximum term expiring on March 29, 2010.

On April 25, 2001, the Pennsylvania Department of Corrections (“DOC”) issued a

“Prescriptive Program Plan” for Pleaze, recommending that he participate in various

institutional programs, including employment training, vocational education, drug and

alcohol education, anger management, and a sexual offender orientation. Pleaze

subsequently completed the recommended programs, including the sexual offender

orientation.




                                              2
       Pleaze became eligible for parole on September 29, 2004. Since then, the Parole

Board has denied him parole on at least four occasions. It based the denials on, inter alia,

Pleaze’s negative parole hearing interviews and his failure to complete additional

institutional programs (including, in particular, additional sexual offender programs).1

       After his third denial of parole in September 2005, Pleaze filed a petition for a writ

of mandamus in the Pennsylvania Court of Common Pleas, alleging that the Parole Board

retroactively applied changes in criteria to deny him parole and thereby violated the Ex

Post Facto Clause. Specifically, he argued that the Parole Board applied to him 42 Pa.

Cons. Stat. § 9718.1, which requires prisoners convicted of the offenses listed therein,

each of which is a sexual offense relating to a minor, to participate in a DOC “program of

counseling or therapy designed for incarcerated sex offenders” to be eligible for parole.

The Court of Common Pleas treated Pleaze’s filing as a petition for review and dismissed

it. While Pleaze’s subsequent allocatur petition to the Supreme Court of Pennsylvania

was pending, the Parole Board denied Pleaze parole for the fourth time, and the Supreme

Court then dismissed his petition.

       Pleaze filed the present habeas petition in the District Court, arguing that the

Parole Board erred in applying § 9718.1 to him during his parole hearings in two ways:

first, because the statute was passed on December 20, 2000, more than a year after his




       1
       For reasons unclear from the record, Pleaze never completed these other sexual
offender programs.

                                              3
conviction, it was improperly applied retroactively; and, second, Pleaze was convicted of

robbery, which is not one of the enumerated offenses in the statute. The District Court

held that the Parole Board did not apply the statute retroactively to Pleaze, the Board’s

procedures did not increase his term of punishment, and Pleaze’s failure to complete the

additional sexual offender programs was not the sole reason for his denial of parole.

Pleaze filed this timely appeal. We granted Pleaze’s petition for a certificate of

appealability as to whether the District Court erred in rejecting his ex post facto claim.

                                              II.

       The District Court had subject matter jurisdiction over Pleaze’s habeas petition

pursuant to 28 U.S.C. § 2254. We exercise jurisdiction over this appeal pursuant to 28

U.S.C. §§ 1291 and 2253. Because the District Court denied Pleaze’s habeas petition

without conducting an evidentiary hearing, we exercise plenary review. Richardson v.

Pa. Bd. of Prob. & Parole, 423 F.3d 282, 287 n.3 (3d Cir. 2005); Zettlemoyer v.

Fulcomer, 923 F.2d 284, 291 & n.5 (3d Cir. 1991).

                                              III.

       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, which has been defined to include any “change [that]

alters the definition of criminal conduct or increases the penalty by which a crime is

punishable.” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 506 n.3 (1995). In order to

maintain a claim for habeas relief as a result of an ex post facto violation, Pleaze must



                                               4
establish two factors, namely that “there was a change in the law or policy which has been

given retrospective effect” and that he “was disadvantaged by the change.” Richardson,

423 F.3d at 287-88; see also Weaver v. Graham, 450 U.S. 24, 29 (1981); Mickens-

Thomas v. Vaughn, 321 F.3d 374, 383-84 (3d Cir. 2003). Pleaze contends that the Parole

Board improperly denied him parole in violation of the Ex Post Facto Clause because it

applied § 9718.1 to him, resulting in an actual risk of an increase in his sentence, and that

the District Court therefore erred in denying his habeas petition because he met both

factors under Richardson. We find these arguments inapposite because the Parole Board

did not apply § 9718.1 in denying Pleaze parole, and therefore he cannot meet either

prong.

                                              A.

         Pleaze argues he has met the first requirement, that “there was a change in the law

or policy which has been given retrospective effect,” because, he contends, the Parole

Board applied § 9718.1 to him, which was improper because the statute was enacted more

than a year after his conviction and also because he was not serving a sentence for one of

the enumerated offenses in the statute. The Commonwealth argues, in contrast, that

mandatory participation in the sexual offender programs under § 9718.1 did not create a

retroactive change in policy and that, regardless, the Parole Board never applied the

statute’s requirement to Pleaze. We agree with the Commonwealth.




                                              5
       First, the DOC had the ability to, and did, deny parole to some inmates who failed

to undergo sexual offender treatment prior to the passage of § 9718.1. See, e.g., Hibbard

v. Pa. Bd. of Prob. & Parole, 816 A.2d 344, 346-47 (Pa. Commw. Ct. 2003) (rejecting the

petitioner’s arguments that the application of § 9718.1 requirements resulted in an ex post

facto application of law based on the Parole Board denying the petitioner parole because

he failed to participate in a sexual offender program). Further, the Parole Board has wide

discretion to make decisions regarding parole based on a variety of factors. Although the

Board cited Pleaze’s failure to complete additional sexual offender programs as a factor

in denying him parole (though it never referenced § 9718.1), Pleaze’s successful

completion of an advanced sexual offender program was one of many factors the Board

could consider in evaluating his parole applications. See Richardson, 423 F.3d at 284

(stating that the Pennsylvania Parole Act allows 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’” (quoting 61 Pa. Cons. Stat.

§ 331.19)). Nothing indicates that the Board intended to retroactively apply the

requirements of § 9718.1 to Pleaze or that it made its decision regarding his parole based

on improper considerations. The Board never claimed that Pleaze was ineligible for

parole by barring him from applying or refusing to consider his application, which is the

remedy for failure to comply with § 9718.1.



                                              6
       Finally, Pleaze argues that the Parole Board erred in supposedly applying § 9718.1

to him because he was convicted of robbery, which is not one of the offenses included

within the scope of the statute. The fact that the statute covers sexual offenses relating to

minors, and not a robbery conviction, merely underscores our conclusion that the Parole

Board did not retroactively apply the statute to him.

       Thus, even absent § 9718.1, the Parole Board was free to reject Pleaze’s

application for parole due to his failure to complete a recommended program, and we

disagree with Pleaze that the Parole Board applied the statute to him.

                                              B.

       Even were we to assume that the Parole Board did apply § 9718.1 to Pleaze, his

argument still fails because he cannot meet the second factor under Richardson, requiring

him to show that he “was disadvantaged by the change” in law. Pleaze carries “the

ultimate burden of establishing that the measure of punishment itself has changed,”

Morales, 514 U.S. at 510 n.6, and he “must show that as applied to his own sentence the

law created a significant risk of increasing his punishment.” Garner v. Jones, 529 U.S.

244, 255 (2000).

       Pleaze argues that although the Parole Board did not explicitly cite § 9718.1, it

clearly applied it in denying him parole, and that its retroactive application directly

resulted in his increased punishment because “but for the statute . . . , he would not have

been required to take a sex offender program.” But “a ‘speculative and attenuated



                                              7
possibility of . . . increasing the measure of punishment’ is not enough” of a showing to

meet Pleaze’s burden. Richardson, 423 F.3d at 288 (alteration in original) (quoting

Morales, 514 U.S. at 509). For example, in Mickens-Thomas, we granted habeas relief to

a prisoner who presented evidence indicating that he had a significant likelihood of parole

under an old policy but was denied it under a new law, and that the Parole Board had

paroled all other similarly situated inmates prior to the change in law. 321 F.3d at 387.

However, unlike the prisoner in Mickens-Thomas, Pleaze has not demonstrated that but

for § 9718.1 he would have been paroled, or that other similarly situated prisoners were

paroled prior to the passage of the statute. See also Richardson, 423 F.3d at 291-94.

                                            IV.

       For the foregoing reasons, we will affirm the District Court’s order denying

Pleaze’s petition for a writ of habeas corpus.




                                             8
