UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOHN JOSEPH FAY, JR., :

:

Petitioner : No. 4:CV-05-1790

:

vs. : (Complaint Filed 9/02/05)

:

PENNSYLVANIA BOARD OF, : (Judge Muir)

PROBATION AND PAROLE, :

:

Respondent :

ORDER

March 31, 2006

Presently before the court is a petition for writ of

habeas corpus, filed pursuant to 28 U.S.C. § 2254, by John

Joseph Fay, (“Fay”), an inmate presently confined in the

Mahanoy State Correctional Institution, Frackville,

Pennsylvania. Fay challenges the denial of his parole by the

Pennsylvania Board of Probation and Parole (“the Board”).

Pursuant to this Court’s Show Cause Order issued on September

13, 2005, the respondent filed a response to the petition

with a supporting brief on October 28, 2005. (Doc. Nos. 10,

11). On November 8, 2005, Fay filed a traverse. (Doc.

No.13). The petition is ripe for consideration, and, for the

reasons that follow, will be denied. 

Background

Petitioner is serving an aggregate sentence of 181⁄2

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years to 42 years for 2nd degree murder, robbery and escape.

(Doc. No. 9, Ex. A, Sentence Status Summary ). Fay's

minimum sentence expired on February 19, 2002 and his maximum

sentence presently expires on August 19, 2025. Id. 

Fay was first considered for parole in November, 2001.

(Doc. No. 9, Ex. C., Notice of Board Decision). The Board

denied parole, determining that “the fair administration of

justice cannot be achieved through your release on parole”

and set his next parole review in or after November, 2002.

Id. The Board stated that in the next review, it would

consider: (1) whether Fay maintained a favorable

recommendation for parole from the Department of Corrections;

and (2) whether he maintained a clear conduct record and

completed the Department of Corrections prescriptive

programs. Id. 

On November 19, 2002, the Board conducted a second

parole review. (Doc. No. 9, Ex. D, Notice of Board

Decision). The decision was to deny Fay parole. The Board's

reasons to deny parole included (1) Fay's version of the

nature and circumstances of the offenses committed; and (2)

his interview with the hearing examiner and Board Member.

Id. Fay's next parole review was set for October, 2004, or

later. The Board advised Fay that in the next review, it

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would consider: (1) whether he had maintained a favorable

recommendation for parole from the Department of Corrections;

and (2) whether he maintained a clear conduct record and

completed the Department of Corrections' prescriptive

programs. Id. 

On April 20, 2004, the Board conducted a third parole

review. (Doc. No. 9, Ex. E, Notice of Board Decision). The

decision was to deny Fay parole. The Board's reasons to deny

parole included (1) Fay's version of the nature and

circumstances of the offenses committed; and (2) his

interview with the hearing examiner and Board Member. Id.

Fay's next parole review was set for October, 2004, or later.

Id. 

On July 23, 2004, Fay filed a petition for writ of

mandamus in the Commonwealth Court of Pennsylvania,

challenging the Board's first three denials of parole. (Doc.

No. 9, Ex. G). By Order dated April 19, 2005, the

Commonwealth Court dismissed the petition for failure to

state a claim for relief. (Doc. No. 9, Ex. H). 

On October 29, 2004, the Board, again, interviewed Fay

and denied parole. (Doc. No. 9, Ex. F, Notice of Board

Decision). The decision stated the reasons for the denial as

follows: (1) Fay's version of the nature and circumstances of

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the offenses committed; (2) his refusal to accept

responsibility for the offenses he committed; (3) his lack of

remorse for the offense committed; (4) reports, evaluations

and assessments concerning Fay's physical, mental and

behavior condition and history; and (5) Fay's interview with

the hearing examiner and/or Board Member. Id. Fay's next

parole review was set for October, 2005, or later. The Board

stated that in the next interview, it would consider (1)

whether Fay had received a favorable recommendation for

parole from the Department of Corrections; and (2) whether he

maintained a clear conduct record and completed the

Department of Corrections prescriptive programs. Id. The

Board also noted that Fay's minimization of his offense makes

him an unsuitable candidate for parole. Id. 

On May 20, 2005, Fay filed a petition for writ of

habeas corpus in the Pennsylvania Supreme Court, invoking the

Court's original jurisdiction. (Doc. No. 9, Ex. I). This

appeal is still pending. 

On September 2, 2005, Fay filed the instant petition

in which he challenges the Board’s adverse decisions of its

review of his parole. He raises the following four grounds

for relief:

1. Whether the Pennsylvania Board of

Probation and Parole retroactively

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applied the post-1996 amendments,

and guidelines, to petitioner's

case when he applied for

consideration of parole. 

2. Whether the Pennsylvania Board of

Probation and Parole's statutory

amendment, which shifted the

“focus” of the parole program from

prisoner rehabilitation to

protection of the public, was

retroactively applied to

petitioner's case, when he applied

for consideration of parole. 

3. Whether the Pennsylvania Board of

Probation and Parole used

impermissible criteria to deny

petitioner parole, in violation of

Due Process.

4. Whether the Pennsylvania Board of

Probation and Parole violated

petitioner's Due Process rights by

retroactively applying the post1996 parole amendments to

petitioner's case. 

(Doc. No. 1, petition). 

Discussion

A. Exhaustion of State Court Remedies

Generally, a habeas petitioner must show that the

federal constitutional claims asserted in the federal habeas

petition have been “fairly presented” to the sate courts, or

that circumstances exist rendering the available state court

process ineffective to protect the petitioner's rights. See

28 U.S.C. § 2254(b). Recently, in DeFoy vs. McCullough, 393

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F.3d 439, 444 (3d Cir. 2005), it was held that “an action for

mandamus remains viable as a means for examining whether

statutory requirements have been altered in a manner that

violations the ex post facto clause.” DeFoy, 393 F.3d 439,

444 (3d Cir. 2005), quoting Coady vs. Vaughn, 770 A.2d 287,

290 (2001). Following DeFoy, the Pennsylvania Supreme Court

decided the case of Cimaszewski vs. Bd. of Prob. & Parole, 

 Pa. , 868 A.2d 416, 427 (2005), wherein it was

recognized 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 if it can be

shown that the amendments “create [] a significant risk of

prolonging his incarceration.” These recent developments

indicate that there are state court remedies available to

raise an ex post facto claim such that exhaustion should not

be excused. 

In the instant action, while it is apparent that Fay

challenged his first three parole denials by filing a

mandamus action in the Commonwealth Court of Pennsylvania,

Fay failed to seek appellate review of the dismissal of his

Commonwealth Court action, despite the fact that he possessed

a right of direct appeal; see 42 Pa.C.S. § 723(a), and his

petition in the Pennsylvania Supreme Court, challenging all

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1

 Recently, the Supreme Curt ruled that an ex post facto

claim of the nature presented here may be pursued in an action

under 42 U.S.C. § 1983. Wilkinson vs. Dotson, — U.S. — , 2005

WL 516415 (2005). 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 this

issue. Whether habeas corpus relief is or is not available

with respect to the claims advanced by Fay is not presently

before this Court. In any event, the issue is academic

because the underlying claims lack merit whether brought in

habeas or under § 1983.

7

four denials, is still pending. Thus, he has not fairly

presented the issues raised herein to the Pennsylvania state

courts. Nor has Petitioner raised an ex post facto claim in

the Pennsylvania Commonwealth Court with respect to his most

recent, October 29, 2004, parole denial. Thus, it is

apparent that Petitioner has failed to exhaust his state

court remedies. See 28 U.S.C. § 2254(b)(1)(A); O’Sullivan

v. Boerckel, 526 U.S. 838, 842-45 (1999). Notwithstanding

the failure to exhaust, the Court will consider the petition

as the claims raised in the petition are clearly without

merit.1 See 28 U.S.C. § 2254(b)(2)( a federal court can

deny a habeas petition “on the merits notwithstanding the

failure of the applicant to exhaust the remedies available in

the courts of the State”). 

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 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

8

B. The Merits of Fay's Ex Post Facto Claims

Fay's challenge to the denial of his parole is based

on the argument that the Board violated the Ex Post Facto

Clause of the United States Constitution by applying the 1996

amendment to 61 Pa.Stat. §331.1, the statute governing parole

standards. “The Ex Post Facto clause of the United States

Constitution 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 vs.

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

quoting, California Dept. of Corrections vs. Morales, 514

U.S. 499, 506 n. 3 (1995). Ex post facto restrictions apply

to parole matters. See Garner vs. Jones, 529 U.S. 244, 250-

255 (2000).

In 1996, the Pennsylvania legislature amended the

section of its parole law 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).2 Before then,

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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).

3

 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

section 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.3

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In Mickens-Thomas I, our Court of Appeals assessed the

impact of the amended statute as construed by the Board and

applied in that case. The court explained that the essential

inquiry was “whether, in practice, the new language has

altered the fundament for reviewing parole applications.” Id.

at 384 (emphasis added). In finding an Ex Post Facto

violation in Mickens-Thomas I, the Court of Appeals for the

Third Circuit observed 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 Court of Appeals 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. Of substantial concern to the Court of Appeals

was the fact that the evidence demonstrated that the Board

interpreted the amended statute to “mandate foremost the

consideration of public safety.” Id. at 391. “The Board

mistakenly construed the 1996 statutory change to signify a

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 Following remand in Mickens-Thomas I, the Board again

denied parole. Our Court of Appeals found that the Board had

exhibited “willful noncompliance, bad faith, and . . .

vindictiveness” sufficient to direct the release of the

petitioner. Mickens-Thomas vs. Vaughn, 355 F.3d 294, 310 (3d

Cir. 2004) (“Mickens-Thomas II”).

11

substantive change in its parole function.” Id.

Notwithstanding this conclusion, the Court of Appeals for the

Third Circuit also acknowledged a recent decision of the

Pennsylvania Supreme Court, Winklespecht vs. Pa. Bd. of Prob.

& Parole, 571 Pa. 685, 813 A.2d 688 (2002), which concluded

that the amended § 331.1 did not require the Board to place

the greatest weight on considerations of public safety. Id.

However, the Court of Appeals concluded that the Winklespecht

decision, “made after the Board’s actions on Thomas’s parole,

came too late to alter the Board’s view of the statutory

amendment on the outcome of the case.” Id. (emphasis in

original.)

In Mickens-Thomas I, as well as in other rulings

issued by the Court of Appeals, the appropriate remedy for an

Ex Post Facto violation has been to remand the matter to the

Board for reconsideration, applying the pre-1996 law.4 Hart

vs. Pa. Bd. of Prob. & Parole, 2003 WL 22838381 (3d Cir. Nov.

23, 2003); see also McLaurin vs. Larkins, 2003 WL 22147497

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

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809, 2003 WL 1919371, at *8 (3d Cir. April 23, 2003).

However, the class of individuals awarded such relief has

been limited to those who were denied parole after adoption

of the 1996 changes and before Winklespecht clarified the

fact that the amendment did not change the administration of

the policies. In those cases where parole was denied after

Winklespecht, 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 vs.

Pa. Bd. of Prob. & Parole, Civil No. 3:CV-04-0275, slip op.

at 6 (M.D. Pa. Oct. 29, 2004)(Nealon, J.); Sphar vs. Pa. Bd.

of Probation & Parole, Civil No. 3:CV-04-1145, slip op. at 7

(M.D. Pa. Oct. 29, 2004)(Munley, J.); Schaeffer vs. Pa. Bd.

of Probation & Parole, Civil No. 3:CV-04-1159, slip op. at 8

(M.D. Pa. Oct. 26, 2004)(Munley, J.).

In this case, we need address the ex post facto

challenge only as it relates to the most recent parole denial

of October 29, 2004. See Johnson vs. Lavan, 2004 WL 1622051

(E.D.) (adopting magistrate judge’s report at 2004 WL

1291973, page cite at *4 n.4); Schaeffer, supra, slip op. at

5 (finding that although Petitioner challenged seven denials

of parole, the challenges to the first six denials were

rendered moot by the fact that subsequent parole hearings

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Even if Fay construes the enumerated reasons as public

safety oriented, this does not create an ex post facto concern

as public safety has always been a parole consideration. 

Mickens-Thomas I, simply instructs that it is not to be given

greater weight than the other numerous individualized factors

to be considered by the Board. Mickens-Thomas I, 321 F.3d at

385. 

13

were conducted). 

The Court finds that it was not the Board’s

application of harsher laws or guidelines that caused the

denial of parole. Initially, the Court notes that Fay's most

recent parole decision came well after the Pennsylvania

Supreme Court had decided Winklespecht, supra. Thus, unlike

in Mickens-Thomas I, the Board had the benefit of

Winklespecht prior to conducting Fay's parole review.

Additionally, the Board's decision denying Fay parole does

not mention risk to public safety as a reason for denying

parole. Rather, the reasons for denying parole are more

directed to the Board's perception of Fay's rehabilitation5.

The Board specifically enumerated multiple significant

reasons for denying parole that would have also warranted the

denial of parole prior to the 1996 amendments: his

minimization of the nature and circumstances of the offenses

committed; his lack of remorse for the offenses committed;

and his refusal to accept responsibility for the offenses

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6

For “nature and circumstances of the offense(s)

committed,” see 61 P.S. § 331.29 (Purdon's 1999)(cited in

Reynolds vs. Pa. Bd. of Prob. & Parole, 809 A.2d 432 n.7

(Pa.Commw. 2002). 

14

committed.6 (See Doc. No. 9, Ex. F., Board Decision of October

29, 2004). Thus, based on the petitioner’s failure to accept

responsibility for the offenses he has committed, and the

lack of remorse for the offenses committed, it is clear that

there is a substantial basis for denying parole regardless of

the 1996 amendments to the Parole Act. 

 After Winklespecht, there must be at least some

evidence supporting a rational inference that the Board is

taking action contrary to the result that would have been

obtained prior to 1996. See Shaffer vs. Meyers, 338 F.Supp.

2nd 562, 565-66 (M.D. Pa. 2004). The mere denial of parole is

insufficient to raise such an inference. Otherwise, a court

is unable to discern that, in practice, the Board has elected

to apply new policies to inmates whose crimes were committed

before 1996. Where, as here, the Board articulates a

rationale for denial of parole, consistent with its pre-1996

practice and policies, no inference of an ex post facto

violation may be drawn. 

Moreover, “[t]here is no constitutional right or

inherent right of a convicted person to be conditionally

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released before the expiration of a valid sentence.” Conn.

Bd. of Pardons vs. Dumschat, 452 U.S. 458, 464 (1981)(quoting

Greenholtz vs. Inmates of Neb. Penal & Corr. Complex, 442

U.S. 1, 7 (1979)). While “States may under certain

circumstances create liberty interests which are protected by

the Due Process Clause,” Sandin vs. Conner, 515 U.S. 472,

483-84 (1995), the Pennsylvania Supreme Court has long held

that “a denial of parole does not implicate a

constitutionally protected liberty interest.” Coady vs.

Vaughn, 564 Pa. 604, 770 A.2d 287, 291 (Pa. 2001); see also

Rogers vs. Pa. Bd. of Prob. & Parole, 555 Pa. 285, 724 A.2d

319, 322-23 (Pa. 1999)(affirming Parole Board's discretion to

grant or deny parole because “parole is a matter of grace and

mercy shown to a prisoner who has demonstrated to the Parole

Board's satisfaction his future ability to function as a lawabiding member of society upon release before the expiration

of the prisoner's maximum sentence”). Consequently,

petitioner's Due Process argument is meritless, and the

petition for writ of habeas corpus will be denied. 

IT IS HEREBY ORDERED THAT:

1. The petition for a writ of habeas corpus is

DENIED.

2. Petitioner's motion for an evidentiary

hearing (Doc. No. 14) is DISMISSED as moot.

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3. The Clerk of Court shall CLOSE this

case.

4. There is no basis for the issuance

of a certificate of appealability.

s/Malcolm Muir 

MUIR

United States District Judge

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