2011 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2011/1954NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 09

- 3744

LOUIS MICKENS

- THOMAS,

Appellant.

v. SUPERINTENDENT DONALD VAUGHN; PENNSYLVANIA BOARD OF PROBATION & PAROLE: THE PENNSYLVANIA BOARD OF PARDONS ; THE ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA Appellees.
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. No. 2

- 99

- cv - 06161) District Judge: Hon. Ronald L. Buckwalter
Argued on January 11 , 2011 Before: BARRY and ROTH, Circuit Judges and HAYDEN*, District Judge
(Opinion filed: January 20, 2011 )

*Honorable Katharine S. Hayden, United States District Judge for the District of New Jersey, sitting by designation.2

David Rudovsky, Esquire (Argued) Jonathan H. Feinberg, Esquire Kairys, Rudovsky, Messing & Feinberg 718 Arch Street Suite 5 01 South Philadelphia, PA 19106 Leonard N. Sosnov, Esquire 1027 Abington Avenue Wyndmoor, PA 19038

Counsel for Appellants
Robert N. Campolongo, Esquire Pennsylvania Board of Probation & Parole 1400 Spring Garden Street Philadelphia, PA 19130 Randall J. Henzes, Esquire Office of Attorney General of Pennsylvania 21 South 12 th Street, 3 rd Floor Philadelphia, PA 19107 John G. Knorr, III, Esquire (Argued) Kenneth L. Joel, Esquire Office of Attorney General of Pennsylvania Strawberry Square, 1 5 th Floor Harrisburg, PA 17120 Arthur R. Thomas, Esquire Pennsylvania Board of Probation & Parole 1101 South Front Broad Street, Suite 5100 Harrisburg, PA 17104

- 2517

Counsel for Appellees3 O P I N I O N

ROTH , Circuit Judge : Petitio ner Louis Clinton Thomas appeals the District Court order dismissing his motion to enforce a previous habeas corpus judgment or, alternatively, for habeas corpus relief following the denial of his application for re

- parole. In Mickens

- Thomas v. Vaughn , 32 1 F.3d 374 (3d Cir. 2003) ( Mickens

- Thomas I ) , and Mickens

- Thomas v. Vaughn , 3 55 F.3d 294 (3d Cir. 2004) ( Mickens

- Thomas II ), we set out the constitutional boundaries necessary for the Board to follow in ruling on Thomas‘s parole applications.
We conclude that the Board has repeatedly failed to comply with our instructions to evaluate Thomas‘s request for parole under the parole laws and guidelines that existed at the time of Thomas‘s conviction, not under the laws and guidelines as amend ed in 1996 and ther eafter

. We will therefore grant uncond itional habeas corpus relief to Thomas

. I. Factual and Procedural Background Thomas, who is 82 years old, was convicted in 196 6 of the rape and murder of a
12

- year - old girl . After new evidence cast doubt on the bas is for his conviction, he was retried and convicted in 1969

. 1 In 1995, Pennsylvania Governor Robert P. Casey commuted Thomas‘s life sentence, along with the sentences of 265 other inmates held in Pennsylvania prisons

. Thomas then became eligible for paro le on July 21, 1996. Since

1 Thomas has consistently maintained his innocence throughout h is two trials and forty

- sev en years of incarceration Whether he is guilty or innocent is not, however, relevant to the present proceeding.4

that time , Thomas has repeatedly sought release on parole. E ach request for parole has been denied

. E ach denial has been based primarily on statutory requirements that Pennsylvania adopted after Thomas‘s conviction , requir ing him to undergo a sex offender
treatment program and, in the process, to admit his guilt . The Board has persistently failed to apply this Court ‘s 2004 decision , which explicitly stat es that the Board‘s application of this requirement represent s ―a continuo us course of ex post facto violations , ‖ Mickens

- Thomas II , 355 F.3d at 307. Thomas unsuccessfully sought parole in 1997 , 1998 and 2000

. 2 In December 1999, Thomas filed a habeas petition , alleging that he was unconstitutionally d enied parole because the Bo ard retroactively applied a parole regime that was not in existence at the time of his conviction and that adversely affected his applications for parole in violation of the ex p ost f

acto clause of the United States Constitution . The District Court grante d his petition in 2002 and remanded the matter to the Board to consider Thomas‘s application under pre

- 1996 law. Mickens

- Thomas v. Vaughn , 217 F. Supp. 2d 570 (E.D. Pa. 2002). This Court affirmed the District Court‘s judgment in 2003, concluding that the Board had committed multiple ex post facto violations and remand ing the matter to the District Court for remand to the Board to conduct proceedings consistent with pre

1996 parole policies and guidelines. Mickens

- Thomas I , 321 F.3d at 393

. Rather than ad hering to this Court‘s directive on remand, the Board ―considered the same old factors in the same manner found by us to be violative of the ex post facto

2 The Parole Board denied Thomas‘s third parole application in March 2000, a few months after his original habeas petition was filed.5

prohibition in our earlier opinion.‖ Mickens

- Thomas II , 3 55 F.3d at 304. Thomas filed his second ha beas petition to contest the Board‘s decision ; the District Court denied it

. This Court reversed, finding that the Board ―defie[d] our instruction to discontinue its manipulation of hitherto insignificant factors of Thomas‘s non

- admission of guilt and his participation only in the  ̳denier‘ part of sex offender therapy program.‖ Id. at 305. We additionally found that the Board committed a ―new and glaring‖ ex post facto violation on remand by retrospectively subject ing Thomas to a post

- 1996 requirement th at he participate in the ―admitter‖ part of a sex offender therapy program to qualify for parole. Id. at 306. 3 Because ― [ t ] he combination of willful noncompliance, bad faith, and a suffic ient inference of retaliation or vindictiveness on the part of the Board convince[d] us that it would be futile to further remand Thomas‘s parole application to the Board for a fair disposition under the pre

- 1996 regime of parole laws and guidelines,‖ id. at 310, we granted Thomas unconditional habeas corpus relief. Whi le on parole, the Parole Board assigned Thomas to a n ―admitters‖ sex offender

treatment program. For more than a year after his release, Thomas complied with parole regulations, attended a treatment program, and was not the subject of any police or

commu nity complaints. In June of 2005, however, Thomas reported to his parole officer that he kissed a woman at church against her will . This conduct resulted in Thomas‘s

3 The B oard‘s requirement that Thomas participate in the ―admitter‖ part of a sex offender treatment program to qualify for parole is a retroactive application of 42 Pa. Stat. Ann. § 9718.1. This statute, enacted in December 2000, provides that a sexual offender involving the abuse of a minor ―shall not be eligible for parole unless the offender has . . . participated in the [sex offender program prescribed by the Department of Corrections].‖6

discharge from the treatment program

. Failure to complete the program was a violation

o f parole and was the basi s for Thomas‘s arrest. O n February 17, 2006, as a result of the parole violation, t he Board ordered Thomas to serve nine months of incarceration , known as ―backtime,‖ and to ―comply with the institution‘s prescriptive program req uirem ents and have no misconducts.‖
Thomas then filed a mo tion in the District Court to enforce the habeas judgment set forth
in Mickens

- Thomas II . After hearings before the District Court, Thomas‘s motion was
denied on the basis that the habeas judgment applied only to Thomas‘s parole application, not parole revocation

. While serving his nine months of b acktime, the prison authorities determined that Thomas did not need any alcohol or drug treatment, nor did he require any mental health services. Afte r serving his nine months, Thomas applied for re

- parole. It was denied based on (1) his ―need for sex offender treatment‖ ; (2) his ―need to participate in and benefit from a treatment program for sex offenders‖ ; (3) his prior supervision history ; and (4) his ―total denial of instant offense.‖ The Board stated that he ―must participate in sex offender treatment‖ and ―maintain a clear conduct record and earn an institutional recommendation for parole‖ in order to be favorably considered at his next parole h earing to be held in or after July 2007. Although the Board did not explicitly ref er to 42 Pa. Stat. Ann. § 9718.1, it is clear that , as before, the statute served as the primary reason for refusing to release Thomas on parole. Since then, Thomas has rep eatedly applied for7

parole and repeatedly been denied parole for failure to participate in an admitters therapy
program. 4 On March 6, 2008, Thomas filed an Application for Leave to File Original Process in the Supreme Court of Pennsylvania

. On November 3, 2008, t he c ourt granted Thomas‘s application, but in the same order summarily denied his habeas petition

. Thomas the n filed a Motion to Enforce Judgment on March 18, 2009 , in the
East ern District of Pennsylvania. The District Court denied Thomas‘s m otion, finding that by releasing Thomas, the Board had complied with the previous habeas judgment and that Thomas had failed to exhaust his state court remedies for the alleged constitutional claims from the re

- parole denial. Mickens

- Thomas v. Vaughn , No. 99

- 6161, 2009 WL 2855907 (E.D. Pa. Sept. 3, 2009). The District Court therefore did not reach the issue whether the Board‘s justification for denying Thomas re

- parole constituted continuing violations of this Court‘s directives in Mickens

- Thomas I and
Mi ckens

- Thomas II

. O n May 12, 2009, while the District Court was considering Thomas‘s motion, the Board again refused to release him on parole based on his ―need to participate in sex offender programming.‖ The Board reiterated that it would consider at
Th omas‘s next parole hearing whether ―he successfully completed a treatment program for: sex offenders.‖ 5 Thomas appeal ed to this Court.

4 Thomas has requested parole every year since 2006. Each request h as been denied based on his refusal or failure to successfully complete an admitters sex offender program. 5 Thomas was once again denied parole at his June 2010 parole hearing.8

II. Discussion A. Jurisdiction, Standard of Review, and Exhaustion Requirement The District Court had jurisdictio n under 28 U.S.C. §§ 1131, 2241 and 2254(a). We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We also have continuing jurisdiction to enforce our prior order granting habeas relief, and have jurisdiction where, as here, ―we construe[] a t imely filed notice of appeal as a request for a certificate of appealability . . . .‖ Mickens

- Thomas II , 355 F.3d at 303; see also Gibbs v. Frank , 500 F.3d 202, 205

- 06 (3d Cir. 2007). ― We exercise plenary review over whether the District Court correctly interpreted the instructions of our prior opinion [,]‖ id. at 206, and over its legal conclusions, and review its factual findings for clear error. Mickens

Thomas I , 321 F.2d at 376 n.2; Rios v. Wiley , 201 F.3d 257, 262 (3d Cir. 2000). The grant of a writ of habeas corpus is conditioned upon the exhaustion of remedies available in the state court, though not where ―circumstances exist that render such process ineffective to protect the rights of the applicant.‖ 28 U.S.C. § 2254(b)(1)(B)(ii). Where a state court has ruled on the merits of a claim, habeas relief is conditioned upon concluding that a state court decision is contrary to or unreasonably applies clearly established federal law, or unreasonably determines the facts in light of the evidence. Id

. § 2254(d). Under the facts of this case, the requirements of Section 2254 have been satisfied: (1) the underlying issue

— the application of a parole rule in violation of the e x p ost f

acto c lause

—has been litigated throughout the Pennsylvania courts and se veral times before this Court, and (2) Thomas raised the instant claims in original habeas actions in the Supreme Court of Pennsylvania, which has original, non

-9

exclusive jurisdiction over habeas claims per 42 Pa. Stat. § 721(1), and which, rather than
tra nsfer or dismiss those actions, granted his applications for leave to file original process and then denied his petitions.
B. Violation of the Rule in Mickens
- Thomas II In the face of an unambiguous record to the contrary, a ppellees assert both in their

r esponse brief and during oral argument that the Board continues to refuse to release Thomas on re - parole because ―[h]e engaged in a re

- offense pattern

– an escalating pattern of high

- risk behavior that endangered both the therapists trying to treat his dev iance and the community at large

– and because [of] his continuing refusal to engage in his own rehabilitation

. . . .‖ This assertion is belied by both the record

– or lack thereof

– and by
statements made by a ppellees‘ counsel during oral argument . The record demonstrates that , but for the Board‘s requirement that Thomas complete a sex offender therapy
program in which he must admit guilt, Thomas would have been released on re - parole after the c ompletion of his nine

- month backtime

. As we have determine d in Mickens

Thomas I and II , that requirement is a violation of the ex post facto clause of the
C onstitution. Appe llees claim Thomas is not being paroled because he has demonstrated an ―escalating pattern of high risk behavior

. ‖ This claim relies on a single incident in which Thomas kissed a woman at church against her will

. 6 This incident does not credibly

6 Appellees cite three other instances in support of their contention that Thomas presents a danger to the community. First, appellees assert in their response brief that Thomas sexualized the relationship with his therapist. Second, during oral argument appellees‘ counsel explained that Thomas would fix broken umbrellas and o ffer them to10

constitute an ―escalating pattern of high risk behavior.‖ First, Thomas self

- reported this violation

– t he woman did not report his conduct

– and if Thomas had not reported the incident, he would not have been discharged from the treatment program and arrested as a technical parole violator. 7 Second, a ppellees‘ ch aracterization of this event as presenting a ―significant danger to [the treatment pr ovider‘s] staff and to the community‖ is undermined by the fact that he was charged with only a ―technical ‖ parole violation.
See 75 Pa. Code § 75.4 (technical violations are punished with a presumptive range of 3

- 18 months incarceration)

. Th e Board coul d have order ed Thomas to serve more backtime than the presumptive range only if it had found the presence of aggravating circumstances, and provided sufficient written justification for its decision, see id. § 75. 3(b)

- (c) ; the Board , however, imposed a bac ktime of nine months , suggesting that it did not perceive Thomas to be a threat to public safety

. Finally , there are no police contacts, community complaints, or other evidence in the record substantiating a ppellees ‘ women in the rain. And finally, Thomas would offer a ride home to women who were stranded in the rain. Not only are these explanations, in this Court‘s opinion, facially insufficient to support Thomas‘s characterization as a danger to the co mmunity, but each episode finds no support in the record. As a consequence, we find them not credible, and refuse to consider them. 3d Cir. L.A.R. 28.3(c) (―All assertions of fact in briefs must be supported by specific reference to the record.‖); see al so Lizardo v U nited S tates , 619 F.3d 273, 276 n.6 (3d Cir. 2010). 7 Thomas‘s parole agent, Anthony Mondello, testified that the Thomas‘s technical violation typically results in 1

- 2 months of incarceration, another fact suggesting that the violation was not

– and generally is not

– considered indicative of a propensity to endanger the public. Moreover, the program required Thomas to report all feelings and thoughts to his therapist. That he did so, and yet appellees maintain that he has been unremittin gly recalcitrant in meeting their expectations of him, suggests all the more that the Board‘s denials of his re

- parole stem not from conduct on his part, but from the single

- minded application of a requirement that this Court has expressly held may not be applied to him.11

claim that Thomas presented a danger t o the community. We therefore do not credit the claim that the Board continues to refuse Thomas‘s requests for parole based on an ―escalating pattern of high risk behavior.‖
T his explanation , in addition to lacking credibility , appear s to be a post

- hoc

r ationalization to disguise the Boar d‘s real reason for denying T homas‘s parole: his
refusal to participate in a sex offender program that requires he admit guilt. Supporting this conclusion is a statement made by a Department of Cor rections agent after T homas received his first re

- parole refusal notice. On March 28, 2007, t he agent wrote: ―Mr.
Thomas

– I placed you on the list for [therapy]. Unfortunately there is a waiting list at this time. Also, please be advised that you will be removed from the g roup after 1

- 3 months if you do not admit your offense. This will then affect your parole decision as you will be consider[ed] non

- compl [ iant ].‖ Additionally, the Board has repeatedly cited Thomas‘s failure to complete the prescribed sex therapy program as a reason for his denial of parole

. We therefore do not credit a ppellees ‘ assert ion that the Board did not apply s ection 9781.1 retroactively to Thomas

. Appellees‘ counsel essentially conceded as much during oral argument. After quoting the notation cited in the preceding paragraph , the Court asked whether it can assume ―that this is the situation [Thomas] faces now with respect to curing what the grounds for denying parole are?‖ Appellees‘ counsel answered, ―Yes.‖ In other words,

a ppellees‘ counsel conced ed that Thomas will not be released on parole until he admits guilt as part and parcel of a sex offender treatment program

.12

In Mickens

- Thomas II , we concluded that, despite not explicitly mentioning

s ection 9781.1, the Board was applying t hat sect ion retroactively to Thomas as grounds for denying parole. The same situation is present here , where appellees continue to claim unconvincingly that s ection 9781.1 is not being applied. We therefore have no difficulty finding that Thomas is being denied parole based on his refusal to participate in and successfully complete a sex offender therapy that requires him to admit guilt. In light of the record and the admissions made by a ppellees‘ counsel during oral argument , we find that the Board‘s appli ca tion of s ection 9781.1 to Thomas‘s parole application constitutes a ―continuous course of ex post facto violations. ‖ Mickens

Thomas II , 355 F.3d at 307. This conduct is in direct contravention of this Court‘s order
in Mickens

- Thomas II , that ―requir[ing] that Thomas participate in the  ̳admitter‘ part of [a] sex offender therapy program to qualify for‖ re

- parole is a ―glaring instance of ex post facto violation,‖ 355 F.3d at 306. We therefore conclude here, as there, that the appropriate remedy under thes e circumstances is to grant Thomas unconditional habeas relief. See id. at 310 ( citing Bridge v. United States Parole Comm ’ n , 981 F.2d 97, 105 (3d Cir. 1992) )

. III. Conclusion For the foregoing reasons, w e will vacate the judgment of the District Court and we direct Donald Vaughn, Superintendent of the Pennsylvania State Correctional Institute at Graterfor d, and the Board to release Thomas on parole forthwith

. 8

8 We order Thomas released forthwith as soon as his attorney has found suitable accommodations for him pending his contact with the parole office.