UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAMES ALBERT POLSTON, JR., :

Petitioner : CIVIL NO. 4:CV-05-378

:

v. :

:

: (Judge McClure)

:

ATTORNEY GENERAL JERRY :

PAPPERT, ET AL., :

Respondents :

MEMORANDUM AND ORDER

November 22, 2005

Background

This pro se petition for writ of habeas corpus was initiated by James Albert

Polston, Jr. (“Petitioner”), an inmate presently confined at the State Correctional

Institution, Cresson, Pennsylvania. Named as Respondents are Pennsylvania Attorney

General Jerry Pappert, the Pennsylvania Board of Probation and Parole (“Parole

Board”) and the Warden at Petitioner’s prior place of incarceration. Service of the

petition was previously ordered.

Polston was convicted of involuntary deviate sexual intercourse, rape, statutory

rape, incest, and related offenses following a 1991 non-jury trial in the Bucks County

Court of Common Pleas. He was subsequently sentenced to a seven (7) to twenty

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(20) year term of incarceration. His conviction was affirmed on direct appeal. See

Commonwealth v. Polston, 616 A.2d 669 (Pa. Superior 1992). A petition for

allowance of appeal to the Pennsylvania Supreme Court was denied. See

Commonwealth v. Polston, 626 A.2d 1157 (Pa. 1993). The minimum term of his

sentence expired on January 1, 1998. Polston’s maximum sentence expires on January

1, 2011.

On February 13, 1998, the Petitioner was denied parole for the first time. The

Parole Board’s written denial cited numerous factors for its decision including the

Petitioner’s substance abuse, habitual offenses, need for sex offender treatment and

failure to obtain a favorable recommendation from the Department of Corrections

(“DOC”). Polston was denied release on parole for a second time during December,

1999. A third parole application was denied on January 22, 2004. 

Following the last parole denial, Polston filed an unsuccessful complaint in

mandamus with Pennsylvania’s Commonwealth Court. A subsequent petition for

allowance of appeal was denied by the Pennsylvania Supreme Court. 

In December 1996, the Pennsylvania state legislature amended the law governing

parole (61 Pa. Stat. § 331). Under the modified criteria, protection of the safety of the

public is the paramount condition which must be considered in determining parole

eligibility. Polston’s present action contends that the Parole Board violated the Ex

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Post Facto Clause by not applying the parole regulations which were in effect at the

time of his original sentencing. He adds that the Parole Board’s retroactive application

of the 1996 amendments in addressing his parole application violated due process. In

addition, Polston maintains that the grounds for denial of release cited by the Parole

Board were “pretextual, boilerplate, and without basis.” Record document no. 1,

additional page 2. His contention is based on the Parole Board’s purported erroneous

determination that he had not successfully completed sex offender treatment. 

Petitioner concludes that he would have been granted release under the parole policies

which were in effect at the time of his sentencing.

Respondents argue that Polston is not entitled to habeas corpus relief because:

(1) his claims are only properly asserted in a civil rights action pursuant to 42 U.S.C. §

1983; and (2) the most recent denial of parole did not violate the Ex Post Facto

Clause. This petition is ripe for consideration. Also pending are Petitioner’s motion

to compel discovery. (Record document no. 14) and his request to supplement his

petition (Record document no. 13).

Discussion

Motion to Supplement

Polston has filed a request to supplement his petition with an additional claim

that the DOC “is entering patently false information into his inmate record.” Record

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document no. 13, p. 1. He indicates that false information regarding his participation

in sex offender therapy which has been made part of his institutional record caused the

denial of his parole application. Accompanying the request is a proposed supplement.

Petitioner claims that he has successfully completed sex offender programs at

both SCI-Cresson and the State Correctional Institution, Camp Hill, Pennsylvania. 

Despite his completion of those programs, Polston was allegedly denied an

institutional recommendation for parole by his Unit Management Team on August 2,

2005 on the grounds that he failed to participate in sex offender programs. Petitioner

contends that he had a contractual agreement with the DOC which he satisfied by

completing sex offender programs, but that the DOC breached its contractual

obligation by not forwarding certain paperwork from SCI-Cresson. Due to the

absence of said paperwork, the DOC refused to recommend him for parole.

Respondents argue that the petition to supplement should be denied because the

allegations set forth therein are only properly considered in a civil rights action, Polston

failed to exhaust his administrative remedies, and the alleged paperwork snafu by the

DOC does not implicate a violation of Polston’s constitutional rights by the Parole

Board.

The claim set forth in Polston’s proposed supplement is clearly unrelated to the

issue of whether an ex post facto violation occurred. It is noted that the original

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1

 Rule 6 of the Rules Governing Section 2254 Cases in the United States

District Courts provides that a party must obtain leave of court in order to engage in

discovery under the Federal Rules of Civil Procedure. If the applicant establishes 

good cause, discovery is available at the discretion of the court. “In order to establish

5

petition was filed in February, 2005, and concerns a January 22, 2004 denial of parole.

Accordingly, a challenge to an unfavorable August 2, 2005 Unit Management Team

recommendation is not germane to Polston’s original petition. Consequently, the

petition to supplement will be denied without prejudice. Petitioner, if he so chooses

and upon satisfaction of the exhaustion requirement, may reassert his proposed

supplemental claim in a new, separate action. Nonetheless, since the issue of

completion of sex offender treatment is raised in the original petition, the Court will

take into consideration Petitioner’s claim that he has completed sex offender

programming.

Petition to Compel Discovery

Also pending before the Court is Polston’s petition for discovery and

deposition of records. See Record document no. 14. This is Polston’s second

request that this Court provide him with various “material, books and papers, and

records.” Id. at p. 1. In his latest filing, the Petitioner lists eleven (11) separate

document requests which he indicates will support his claim of entitlement to federal

habeas corpus relief. 

 A habeas petitioner may be granted leave of Court to engage in discovery.1 By

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good cause a petitioner must point to specific evidence that might be discovered that

would support a constitutional claim.” Taylor v. Carroll, 2003 WL 22075693 *1 (D.

Del. Aug. 29, 2003)(citing Marshall v. Hendricks, 103 F. Supp.2d 749, 760 (D. N.J. 

2000)(internal quotations omitted)).

6

Order dated March 14, 2005, this Court denied a prior, similar request by the

Petitioner. Based on a review of Polston’s latest submission, it remains the

determination of this Court that full and fair disposition of this action does not require

review of the requested discovery materials. However, the documents accompanying

the Petitioner’s request will be taken into consideration. The petition for discovery

and deposition of records will be denied.

Wilkinson

The Respondents’ initial argument maintains that under Wilkinson v. Dotson, 

 U.S. , 125 S. Ct. 1242 (2005), this matter should be dismissed because the

Petitioner’s present claims should be asserted in a civil rights complaint pursuant to 42

U.S.C. § 1983.

During the time period surrounding the filing of this petition on February 23,

2005, there were important federal and state case law developments in the area of

when, how, and if, a Pennsylvania state prisoner must seek state court review of a

denial of parole. Specifically, in January of 2005, the Third Circuit Court of Appeals

in Defoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005), held that a state prisoner

challenging the denial of parole on constitutional grounds, other than for a violation of

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 Defoy, 393 F.3d at 446 (Weis, J., concurring). 

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the Ex Post Facto Clause, was not required to exhaust state court remedies before

pursuing federal habeas review. 

Almost exactly one month later, the Pennsylvania Supreme Court decided

Cimaszewski v. Bd. of Prob. & Parole, 582 Pa. 27, 868 A.2d 416, 427 (2005), which

overruled Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59, 838 A.2d 684 (2003), by

recognizing that an ex post facto claim may arise from the application of the 1996

amendments to an applicant convicted prior to the enactment of the amendments who

can show that they create “a significant risk of prolonging his incarceration.” 

The Supreme Court’s Wilkinson decision which was announced on March 7,

2005, ruled that an ex post facto claim of the nature presented here may be pursued in

an action under § 1983. There is no need to exhaust state court remedies before filing a

§ 1983 action. Although Justice Scalia, in a concurring opinion in which Justice

Thomas joined, suggested that habeas corpus would not be available to pursue such a

claim, the majority ruling did not resolve that issue. 

Given the “considerable jurisprudential confusion”2 at the time surrounding the

litigation of an ex post facto claim, it is unreasonable to expect that Polston could have

predicted the Wilkinson decision. In any event, the issue is academic because the

underlying claims lack merit whether brought in habeas or under § 1983.

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3 After amendment, section 331.1 reads in full:

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.

61 P.S. § 331.1 (Purdon’s 1999)(emphasis added).

(continued...)

8

Ex Post Facto

Polston claims entitlement to federal habeas corpus relief on the grounds that the

Parole Board violated the Ex Post Facto Clause of the United States Constitution by

applying the 1996 amendments to Pennsylvania’s parole regulations in his case. He

contends that since his original state criminal conviction occurred in 1991, the parole

regulations which were in effect at that time should be applied in his case. 

As noted earlier, in 1996 the Pennsylvania legislature amended its parole law by

setting forth the public policy statement of the Commonwealth concerning parole. 

Specifically, the 1996 legislation decreed that “the board shall first and foremost seek

to protect the safety of the public.” 61 P.S. § 331.1 (Purdon’s 1999).3 The former §

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3(...continued)

4 Formerly, section 331.1 read as follows: 

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 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.

9

331.1 made no mention of pubic safety, and in fact declared the public policy of the

Commonwealth to be that parole would be a period of rehabilitation of an inmate for

his restoration to society.4

A new law or policy violates the Ex Post Facto Clause of the United States

Constitution when it is applied to events which occurred prior to its enactment and

disadvantages the offender affected by it. Weaver v. Graham, 450 U.S. 24, 29 (1981). 

The Ex Post Facto Clause applies to a statutory or policy change that “alters the

definition of criminal conduct or increases the penalty by which a crime is punishable.” 

Mickens-Thomas v. Vaughn, 321 F.3d 374, 383 (3d Cir. 2003)(“Mickens-Thomas

I”), quoting, California Dept. of Corrections v. Morales, 514 U.S. 499, 506 n. 3

(1995). “One function of the Ex Post Facto Clause is to bar enactments, which by

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retroactive operation increase the punishment for a crime after its commission.” 

Garner v. Jones, 529 U.S. 244, 249 (2000). A retroactive application of a change in

parole laws can constitute an ex post facto violation. See id. at 250.

 On February 13, 1998, Polston was initially considered for, and denied parole. 

The Parole Board listed the following factors in support of its decision: substance

abuse, habitual offender, assaultive instant offense, very high assaultive behavior

potential, victim injury, need for treatment, failure to participate in a sex offenders

program, and an unfavorable recommendation from the DOC. See Record document

no. 11, Exhibit F.

On December 30, 1999, the Petitioner was again denied release. In its written

decision, the Parole Board stated that its “mandate to protect the safety of the public

and to assist in the fair administration of justice cannot be achieved through your

release on parole.” Id. at Exhibit G.

The most recent denial of parole to Polston occurred on January 22, 2004. In

that ruling, the Parole Board noted that it had interviewed the Petitioner and reviewed

his file. See id. at Exhibit H. The Parole Board concluded 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.” Id. The decision

added that Polston would be reconsidered for parole during December, 2006, at which

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time the Parole Board would consider: 

whether you have successfully completed a treatment program for: sex

offenders that reconciles the official version and your version. 

Whether you have maintained a favorable recommendation for parole from the

Department of Corrections. 

 Whether you have maintained a clear conduct record and completed the

County Prison’s prescribed program(s). 

Your version of the crime and blaming others is totally incompatible with the

facts of the crime.

Updated sex offender program and sex offender assessment board evaluation to

be available at time of review.

Id. The Parole Board issued a modified decision on May 7, 2004 which added that

denial of parole was also appropriate because of Polston’s version of the nature and

circumstances of his underlying crimes, and that he had received fourteen (14)

misconducts during the review period. It also clarified that Petitioner had to complete

DOC prescriptive programs as opposed to county prison prescriptive programs. See

id. at Exhibit I.

In Mickens-Thomas I, the Court of Appeals for the Third Circuit addressed the

ex post facto ramifications of the 1996 parole amendments. The Third Circuit noted

that the essential inquiry was “whether, in practice, the new language has altered the

fundament for reviewing parole applications.” Id. at 384 (emphasis added). It

concluded that the 1996 amendments as applied to Mickens-Thomas constituted an Ex

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Post Facto Clause violation, noting that there was “significant evidence that [the

Board] acted upon policies that were established after [the petitioner]’s crime and

conviction.” Id. at 393. The Third Circuit explained:

[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 the realm of the legitimate exercise of

discretion under the pre-1996 policies. Inference

instructs us that the Board inappropriately relied

on policies implemented in 1996, rather than the

parole policies in place at the time of Thomas’s

crime and conviction.

Id. at 387. 

The Court noted that “[t]he Board mistakenly construed the 1996 statutory change to

signify a substantive change in its parole function.” Id. However, the Third Circuit

recognized that a recent decision of the Pennsylvania Supreme Court, Winklespecht v.

Pa. Bd. of Prob. & Parole, 571 Pa. 685, 813 A.2d 688 (2002), concluded that the

amended § 331.1 did not require the Board to place the greatest weight on

considerations of public safety. Id. Unfortunately, the Winklespecht decision was

announced after the denial of parole to Mickens-Thomas. 

With respect to Mickens-Thomas and other habeas applicants who were denied

parole after adoption of the 1996 changes and before Winklespecht clarified the fact

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5 Following remand in Mickens-Thomas I, the Parole Board again denied

parole. The Third Circuit found that the Parole Board had exhibited “willful

noncompliance, bad faith, and . . . vindictiveness” sufficient to direct the release of the

petitioner. Mickens-Thomas v. Vaughn,355 F.3d 294, 310 (3d Cir. 2004) (“MickensThomas II”).

13

that the amendment did not change the administration of the policies, the appropriate

remedy for an ex post facto violation has been to remand the matter to the Parole

Board for reconsideration, applying the pre-1996 law.5 See Hart v. Pa. Bd. of Prob. &

Parole, 82 fed. Appx. 276 (3d Cir. Nov. 23, 2003); see also McLaurin v. Larkins, 76

Fed. Appx. 415 (3d Cir. Sept. 18, 2003); Hollawell v. Gillis, 65 Fed. Appx. 809, 2003

WL 1919371, at *8 (3d Cir. April 23, 2003). 

In cases where parole was denied after Winklespecht, federal habeas corpus

relief has been denied where it was evident that the denial of parole was based upon

factors that would have resulted in the denial of parole under pre-1996 policies and

practices. See Grob v. Pa. Bd. of Prob. & Parole, Civil No. 3:CV-04-0275, slip op. at

6 (M.D. Pa. Oct. 29, 2004)(Nealon, J.); Sphar v. Pa. Bd. of Probation & Parole, Civil

No. 3:CV-04-1145, slip op. at 7 (M.D. Pa. Oct. 29, 2004)(Munley, J.).

Recently, the Third Circuit stated that in order to obtain relief on an ex post

facto claim, a Pennsylvania state prisoner must show “both a retroactive change in law

or policy and that this change caused individual disadvantage” by increasing the risk

of punishment. Richardson v. Pennsylvania Parole Board, 2005 WL 2155505 *1 (3d

Cir. Sept. 8, 2005)(emphasis in original). In Richardson, the Court added that it was

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not sufficient for a prisoner to merely “show that the Board relied on a new law or

policy.” Id. at * 9. Rather, the inmate must show that he was personally

disadvantaged.

The 2004 decision which denied parole to Polston clearly came after the

Pennsylvania Supreme Court had decided Winklespecht. Based on a review of the

record, it was not the Parole Board’s application of harsher laws or guidelines that

caused the denial of parole. The Parole Board’s decision specifically enumerated

legitimate reasons for denying parole that would have also warranted the denial of

parole prior to the 1996 amendments. Specifically, the Parole Board’s written decision

clearly stated that Polston was being denied parole based on his version of the nature

and circumstances underlying his conviction; his poor institutional behavior consisting

of fourteen (14) misconducts, and his blaming of others which was incompatible with

the facts of his case. See Record document no. 11, Exhibit I.

Unlike Mickens-Thomas I, the Parole Board had the benefit of Winklespecht

prior to conducting Polston’s 2004 parole review. The Parole Board’s decision listed

a series of significant reasons for denying Polston parole which stress, not public

safety issues, but rather the Petitioner’s own conduct and the Parole Board’s

perception of his suitability for release. 

The 2004 decision clearly voiced dissatisfaction with Polston’s institutional

behavior and lack of responsibility for his crimes. Both of those matters are

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6 § 331.19 provides in relevant part: 

It shall be the duty of the board . . . to consider the nature

and circumstances of the offense committed, any

recommendations made by the trial judge and prosecuting

attorney, the general character and background of the

prisoner. . . . The board shall further cause the conduct of

the person while in prison and his physical, mental and

behavior condition and history, . . . his complete criminal

record, as far as the same may be known, to be reported and

investigated. 

15

encompassed in § 331.19 as factors to be considered in parole decisions.6 

 There is no indication that either public safety or the fair administration of

justice was a controlling factor in the 2004 decision to deny Polston parole. It is

apparent to this Court that Petitioner would have been denied parole regardless of the

subsequent enactment of the 1996 amendments to the Parole Act. As required under

Richardson, Polston has not shown that he was personally disadvantaged by the use

of the 1996 amendments. Since a violation of the Ex Post Facto Clause has not been

established, Petitioner’s request for federal habeas corpus relief will be denied. 

Consequently,

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus is DISMISSED.

2. Polston’s petition to supplement (Record document no. 13) is

DENIED.

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3. Petitioner’s motion (Record document no. 14) for discovery

and deposition of records is DENIED.

4. The Clerk of Court is directed to close the case.

5. Based on the Court’s determination herein, there is no basis for

the issuance of a certificate of appealability.

 s/ James F. McClure, Jr. 

JAMES F. McCLURE, JR.

United States District Judge

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