IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

FRED BARTHOLOMEW, )

Petitioner, )

)

v. ) Civil Action No. 05-60E

) District Judge McLaughlin

PENNSYLVANIA BOARD OF PROBATION ) Magistrate Judge Baxter

AND PAROLE, )

Respondent. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that this petition for writ of habeas corpus be dismissed and a certificate

of appealability be denied.

II. REPORT

Petitioner Fred Bartholomew is a state prisoner incarcerated at the State Regional

Correctional Facility at Mercer, Pennsylvania. He is serving a sentence of 6 to 20 years for

involuntary deviate sexual intercourse and statutory rape which was imposed in the Court of

Common Pleas of Crawford County, Pennsylvania in 1991. Petitioner challenges several decisions

by the Pennsylvania Board of Probation and Parole to deny him parole, with the latest occurring on

October 17, 2003. Bartholomew asserts that the Board's denials violate the Ex Post Facto Clause

in that the Board made the protection of the public its pre-eminent consideration in denying parole.

In this respect, he relies upon the analysis set forth in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d

Cir.) ("Mickens-Thomas I"), cert. denied sub. nom. Gillis v. Hollawell, 540 U.S. 875, 124 S.Ct. 229

(2003). In Bartholomew's view, Mickens-Thomas requires that he be released from custody due to

the Board's improper reliance on the "new" factors introduced by the 1996 amendment to

Pennsylvania's parole statute.

The Commonwealth, both by the District Attorney of Crawford County (Docket #20) and the

Attorney General of Pennsylvania (Docket #22), has responded to the petition. The petition is ripe

for disposition.

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A. Mootness.

Bartholomew seeks to challenge several Board decisions dating to 1998. However, since the

remedy available under Mickens-Thomas I for an ex post facto violation would be a new hearing

before the Board applying the appropriate standard, challenges to parole denials occurring prior to

the last denial on October 17, 2003, are moot. See Johnson v. Lavan, 2004 WL 1622051 (E.D. 2004)

(adopting magistrate judge's report at 2004 WL 1291973, page cite at *4 n. 4); Gauche v. Lavan,

2005 WL 1324859 (M.D.Pa. 2005)(challenges to all but most recent parole denial are moot since

remedy would be remand for new hearing). Thus, the Court will consider only Bartholomew's

challenge to the Board's October 2003 parole denial.

B. Merits.

The Board's October 17, 2003, decision cites the following reason for denying parole: 

“[y]our need to participate and complete additional institutional programs.” (Document # 10, Exhibit

H). Bartholomew argues that, prior to the 1996 amendments to the Pennsylvania statute, his release

on parole would have been more likely. He argues that the failure to follow pre-1996 guidelines for

considering his parole application is fatal to the Board's decision. The Court of Appeals' decision

in Mickens-Thomas requires, in petitioner's view, that this court immediately order his release on

parole.

Bartholomew misreads applicable precedent. The Court of Appeals has recently provided

an overview of the evolution of claims such as Bartholomew's, and that overview informs this court's

decision on the merits of his claim:

The Pennsylvania Supreme Court first addressed the ex post facto

implications of the changes to the parole laws in Winklespecht v.

Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688, 691

(2002). In that case, Justice Eakin reasoned that the 1996 Amendments did

not create a new offense, increase the penalty for an existing offense, or

create a substantial risk that parole would be denied more frequently, and

therefore it did not violate the Ex Post Facto Clause. Id. at 691-92.

Winklespecht, however, featured the opinions of four different judges and no

clear majority opinion emerged.

Following Winklespecht, we weighed in on the Ex Post Facto question in

Mickens-Thomas v. Vaughn, 321 F.3d at 392. In Mickens-Thomas, we

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concluded that the Parole Board interpreted the amendments to the parole

statute in a way that fundamentally altered the parole application reviewing

process by placing primary importance on public safety as a consideration of

whether to grant parole. Id. at 384-85. The Pennsylvania Supreme Court

responded in Finnegan v. Pennsylvania Board of Probation and Parole, 576

Pa. 59, 838 A.2d 684, 690 (2003), recognizing our decision in MickensThomas, but also noting its limited application. It then took the opportunity

to "reiterate that the 1996 revision of § 331.1 of the Parole Act does not

violate the ex post facto clause when applied to a prisoner convicted prior to

the revision." Id. 

Shortly thereafter, a plurality of the Pennsylvania Supreme Court took the

opportunity in Hall v. Pennsylvania Board of Probation and Parole, 578 Pa.

245, 851 A.2d 859, 865 (2004), to expressly disagree with our decision in

Mickens-Thomas. Hall, however, offered no further Ex Post Facto analysis.

Most recently, the Pennsylvania Supreme Court revisited the 1996 parole

amendments in Cimaszewski v. Board of Probation and Parole, 582 Pa. 27,

868 A.2d 416, 427 (2005). Although again fragmented, a clear majority of

the court explicitly rejected Finnegan and held that "under Garner [v. Jones,

529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) ] and [California

Dept. of Corrections v.] Morales, [514 U.S. 499, 115 S.Ct. 1597 (1995),] the

1996 amendment may be shown to violate the ex post facto clause if an

inmate is able to demonstrate that the 1996 amendment, as applied to him,

creates a significant risk of prolonging his incarceration." Id. In our recent

decision in Richardson v. Pennsylvania Board of Probation and Parole, 423

F.3d 282, 2005 WL 2155505 (3d Cir. Sept. 8, 2005), we recognized that the

Cimaszewski decision had squarely answered in the affirmative that the 1996

Amendments had changed the substantive criteria for parole in Pennsylvania

and that a petitioner who could demonstrate individual disadvantage

from retroactive application of the 1996 Amendments could prevail on

an ex post facto claim. Id. at *8.

Parker v. Kelchner, 429 F.3d 58, 64 (3d Cir. 2005)(emphasis added). As this synopsis of MickensThomas I and subsequent state and federal case law establishes, an ex post facto claim premised

upon the "changes" engendered by the 1996 amendment of Pennsylvania's parole statute requires that

a petitioner establish "individual disadvantage." In this case, Bartholomew's burden is to show that

the 1996 amendments, as applied in this case, created a significant risk that his incarceration would

be prolonged. Parker, supra; Richardson, supra.

Bartholomew has not established "individual disadvantage." First, the reason set forth by the

Board for denying parole is entirely in line with the pre-1996 requirements of the Parole Act. See,

e.g., Mickens-Thomas I, 321 F.3d at 378. Further, unlike the Board's decision in Mickens-Thomas

I, the Board's October 17, 2003, decision in this case reflects that it did not expressly give additional

weight to public safety concerns. Thus, there is no indication on this record that the 1996

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amendments to Pennsylvania Parole Act had any effect on the decision to deny Bartholomew parole.

Therefore, as required under Richardson, Bartholomew has not shown that he was personally

disadvantaged by the use of the 1996 amendments. Compare, Rivera v. Gillis, 2006WL208803

(M.D.Pa. 2006)(specific reasons for denyingparolewere reasons appropriatelyconsidered pre-1996).

Since a violation of the Ex Post Facto Clause has not been established, Bartholomew's petition

should be dismissed.

C. Certificate of Appealability

Section 102 of AEDPA, 28 U.S.C. § 2253(c), codifies standards governing the issuance of

a certificate of appealability for appellate review of a district court's disposition of a habeas petition.

It provides that "[a] certificate of appealability may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right." In the case at bar, Bartholomew has not

made any showing that he has been denied any of his constitutional rights. Accordingly, a certificate

of appealability should be denied.

III. CONCLUSION

It is respectfully recommended that this petition be dismissed and a certificate of

appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: May 15, 2006

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