2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-9-2002

Lyons v. Mendez

Precedential or Non-Precedential: Precedential

Docket No. 00-2822

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Recommended Citation

"Lyons v. Mendez" (2002). 2002 Decisions. Paper 559.

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PRECEDENTIAL 

 Filed September 9, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 00-2822 

JAMES LYONS, 

 Appellant 

v. 

JAKE MENDEZ, Warden; US PAROLE COMMISSION 

ON APPEAL FROM THE 

UNITED STATES DISTRICT COURT FOR THE 

MIDDLE DISTRICT OF PENNSYLVANIA 

(D.C. Civ. No. 98-CV-01828) 

District Judge: Honorable Thomas I. Vanaskie 

Submitted Under Third Circuit LAR 34.1(a) 

March 12, 2002 

Before: ALITO, ROTH AND FUENTES, Circuit Judge s. 

(Filed: September 9, 2002) 

 James Lyons, Pro Se 

 Reg. No. 02810-070 

 P.O. 2000 Unit 3B 

 White Deer, PA 17887 

 

 Martin C. Carlson 

 United States Attorney 

 Mary Catherine Frye 

 Assistant U.S. Attorney 

 Federal Building 

 228 Walnut Street 

 Harrisburg, PA 17108 

 Counsel for Appellee 

OPINION OF THE COURT 

PER CURIAM: 

James Lyons appeals pro se from the District Court order 

denying his petition for a writ of habeas corpus. He claims 

that the Parole Commission improperly postponed his 

release date beyond the guideline range by relying on a 

1987 amendment to the Sentencing Reform Act ("SRA") that 

authorized upward departures but that such departures 

were not authorized when Lyons committed his crimes in 
1986. Lyons argues that this 1987 amendment operates as 

an ex post facto law and is therefore unconstitutional as 

applied to him. We agree with Lyons’s ex post facto 

argument and therefore reverse. 

I. 

Lyons committed narcotics-trafficking and related firearm 

offenses in 1986. Soon thereafter, he was convicted and 

sentenced to an aggregate prison term of 40 years. In 1996, 

after serving more than ten years of his sentence, Lyons 

had an initial parole hearing. The Parole Commission 

determined that under the applicable guideline, Lyons 

would normally be eligible for parole after serving 100-148 

months, i.e., no later than August 1998. However, the 

Commission determined that a parole eligibility date outside 

the guideline range was warranted because of Lyons’s 

"history of possessing/using weapons and violence." 

(Exhibit 4 to the Response to Show Cause Order, filed in 

the District Court at Dkt. #18). In postponing Lyons’s 

eligibility date, the Commission apparently relied on 18 

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U.S.C. S 4206(c), which authorized the Commission to set 

release dates outside the guideline range for "good cause." 

Finding good cause, the Commission continued Lyons’s 

incarceration until a mandatory release date in July 2009, 

more than ten years beyond the maximum term in his 

parole guideline range. The Commission reaffirmed its 

decision after a hearing in 1998. 

In 1998, after serving 151 months of his prison term, 

Lyons filed a petition for a writ of habeas corpus in federal 

district court pursuant to 28 U.S.C. S 2241. He raised two 

challenges to the departure from his guideline range 

pursuant to the 1987 amendment: first, that application of 

this amendment violated the constitutional prohibition 

against ex post facto laws and, second, that it exceeded 

Congress’s authority under the separation-of-powers 

doctrine. The District Court rejected both his ex post facto 

and separation-of-powers arguments. It accordingly denied 

Lyons’s petition for habeas relief. This appeal followed. 

II. 

Lyons bases his claim to habeas relief primarily on the ex 

post facto clause of the United States Constitution.1 See 

U.S. Const. Art. 1, S 9 ("No . . . ex post facto Law shall be 

passed."). This clause forbids Congress from enacting any 

law "which imposes a punishment for an act which was not 

punishable at the time it was committed; or imposes 

_________________________________________________________________ 

1. Lyons also invokes the separation-of-powers doctrine as an alternative 

basis for habeas relief. He argues that the 1987 amendment to 

S 235(b)(3) violates this doctrine because Congress lacks the authority to 

overrule two judicial decisions which Lyons believe support his claim, 

Romano v. Luther, 816 F.2d 832 (2d Cir. 1987), and Paris v. Whalen, 666 
F. Supp. 715 (M.D. Pa. 1987). 

Regardless of whether those two decisions are helpful to Lyons, his 

understanding and application of that doctrine are incorrect. The 

separation of powers doctrine provides, among other things, that 

Congress may not require federal courts to nullify or vacate their 

properly rendered final judgments. See Plaut v. Spendthrift Farms, Inc., 

514 U.S. 211, 219 (1995). Congress’s amendment toS 235(b)(3) makes 

no such threat to final judgements. Lyons’s alleged separation-of-powers 

basis for habeas relief has no foundation in the facts of this case. 

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additional punishment to that then prescribed." Weaver v. 

Graham, 450 U.S. 24, 28 (1981) (emphasis added). The test 

for finding a criminal law to be ex post facto contains two 

elements.2 First, the law must be retrospective, applying to 

events prior to its enactment; and second, it must 

disadvantage the offender affected by it. See id. at 29. 

As to the first element, the 1987 amendment 

to S 235(b)(3) is clearly retrospective. The parole 

transition sections to which S 235(b)(3) belongs apply 

to offenses committed before the SRA’s effective date. See 

Tripati v. U.S. Parole Commission, 872 F.2d 328, 330 

(9th Cir. 1988) (1987 amendment is retrospective); Lightsey 

v. Kastner, 846 F.2d 329, 333 (5th Cir. 1988) (same). The 

second element -- whether Lyons was disadvantaged 

by the 1987 amendment -- depends upon a determination 

of the law in effect in 1986, when Lyons committed 

his crimes. The original S 235(b)(3) required that parole 

release dates be set within the guideline range,3 whereas 

_________________________________________________________________ 

2. Of course, to pursue an ex post facto challenge, Lyons must also show 

that S 235(b)(3) applied to him, i.e. that he was in the Parole 

Commission’s jurisdiction the day before the expiration of the five-year 

period referred to in S 235(b)(3). See supra, note 3. Courts have 

consistently held that the start date of the five-year period referred to in 

S 235(b)(3) was November 1, 1987. See Lightsey v. Kastner, 846 F.2d 

329, 331-32 (5th Cir. 1988); Romano, 816 F.3d at 837; Tripati v. U.S. 

Parole Commission, 872 F.2d 328, 330 (9th Cir. 1988) (Section 235(b)(3) 

does not apply to prisoner who will be out on parole before November 1, 

1992). 

Because Lyons had not been released on parole, we find that he was 

clearly still in the Parole Commission’s jurisdiction when the five-year 

period ended on the day before November 1, 1992. 

3. Section 235(b)(3), as originally enacted in 1984 as part of the SRA, 

provided: 

 The United States Parole Commission shall set a release date, for an 

 individual who will be in its jurisdiction the day before the 

 expiration of five years after the effective date of this Act, that is 

 within the range that applies to the prisoner under the applicable 

 parole guideline. A release date set pursuant to this paragraph shall 

 be set early enough to permit consideration of an appeal of the 

 release date, in accordance with Parole Commission procedures, 

 before the expiration of five years following the effective date of this 
 Act. 

Pub. L. 98-473, 98 Stat. 2032 (1984) (prior to 1987 amendment) 

(emphasis added). 

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both before4 and after5 this original provision was in effect, 

the Commission was authorized to set dates outside of the 

guideline range. This determination, in turn, depends upon 

the answer to the following deceptively simple question: on 

what date did the SRA’s original S 235(b)(3) take effect? 

Lyons argues that the original S 235(b)(3) took effect upon 

enactment in 1984. The government argues that it did not 

take effect until November 1, 1987. If, as Lyons argues, the 

law in effect in 1986 was the original S 235(b)(3), requiring 

dates within the guideline range, then Lyons was clearly 

disadvantaged when the Commission relied on the 1987 

amendment to postpone his release over ten years beyond 

the guideline’s maximum of 148 months. But if, as the 

government argues, the original S 235(b)(3) was not yet in 

effect when Lyons committed his crimes, then the 

Commission was still authorized to go outside the range. 

Thus, when the 1987 amendment simply restored that 

authority, Lyons’s punishment was no greater than when 

he committed his crimes, and therefore he was not 

"disadvantaged." 

We agree with Lyons that the original S 235(b)(3) took 

effect upon enactment and thus the 1987 amendment 

operated as an ex post facto law when it was applied to 

postpone his release date beyond his maximum guideline 

range of 148 months. We therefore find the amended 

S 235(b)(3) unconstitutional as applied to Lyons. 

A. 

Our analysis of the effective date begins with the text of 

the statute. The Sentencing Reform Act ("SRA") was enacted 

_________________________________________________________________ 

4. Before enactment of the SRA, the Parole Commission was permitted to 

go beyond the guideline range in those cases with"good cause for so 

doing." 18 U.S.C. S 4206(c) (1982). 

5. The amended version of S 235(b)(3), enacted on December 7, 1987, 

instructed the Commission to set a release date"pursuant to Section 

4206 of Title 18 United States Code," and deleted the words, "that is 

within the range that applies to the prisoner under the applicable parole 

guideline." See Sentencing Act of 1987,S 2, Pub. L. 100-182, 101 Stat. 

1266 (1987). Once again, upward departures from the guideline range 

were authorized for "good cause." 18 U.S.C.S 4206. 

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as Chapter II of the multi-faceted Comprehensive Crime 

Control Act ("CCCA"). See Pub. L. 98-473, 98 Stat. 1837, 
1987 (1984). The SRA’s purpose was to replace "a system of 

indeterminate sentences and the possibility of parole with 

determinate sentencing and no parole." Walden v. U.S. 

Parole Commission, 114 F.3d 1136, 1138 (11th Cir. 1997). 

Because the CCCA contained no effective-date provision 

governing the entire statute, the CCCA itself became 

effective upon enactment on October 12, 1984. See United 

States v. Shaffer, 789 F.2d 682, 686-87 (9th Cir. 1986). 

Section 235 of the CCCA, located within the SRA chapter, 

bore the title "Effective Date." It provided a uniform effective 

date for most provisions of the SRA, specified certain 

exceptions to that uniform date, and contained special 

provisions concerning the transition to the new sentencing 

system. See Romano v. Luther, 816 F.3d 832, 835 (2d Cir. 

1987). Under S 235(a)(1), this uniform effective date was 

governed by a time-delay mechanism, triggered by the 

CCCA’s date of enactment. See Pub. L. No. 99-217, S 4, 99 

Stat. 1728 (1985) (amending the mechanism from a 24- 

month delay to a 36-month delay). In short, because the 

CCCA was enacted on October 12, 1984, at least most of 

the SRA became effective on November 1, 1987. 

Unfortunately, S 235 made no mention of the effective date 

of that entire section or of its subsection 5(b)(3). 

B. 

With this framework in mind, we turn to the 

interpretations of the courts. In this circuit, the contention 

that S 235(b)(3) took effect upon enactment of the SRA is a 

matter of first impression.6 We have not yet faced a 

petitioner like Lyons: his release date hinges on our 

determination of when S 235(b)(3) went into effect, because 

he committed his crimes after the provision’s enactment in 

_________________________________________________________________ 

6. In Madonna v. U.S. Parole Commission, 900 F.2d 24 (3d Cir. 1990), the 

petitioner challenged the amended version of S 235(b)(3) under the ex 

post facto and due process clauses. However, this Court found it 

"unnecessary to address these questions" because the Commission had 

not departed from the guideline range. Id. at 25. Furthermore, unlike 

Lyons, Madonna committed his crime before the SRA was enacted. 

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1984 but before its amendment in 1987, and he was still in 

the Commission’s jurisdiction when the statute’s five-year 

transition period ended. The petitioner in United States ex 

rel. D’Agostino v. Keohane, 877 F.2d 1167 (3d Cir. 1989), 

claimed the benefit of the original S 235(b)(3); but unlike 

Lyons, D’Agostino committed his crimes in the 1970’s, long 

before the SRA was even enacted, so our holding against 

D’Agostino could not have implicated the issue before us, 

i.e., whether S 235(b)(3) took effect in 1984 or 1987. 

We acknowledge that in United States v. Martinez-Zayas, 

857 F.2d 122 (3d Cir. 1988), in discussing whether we had 

appellate jurisdiction under 18 U.S.C. S 3742 (1986 Supp.), 

we stated that "Congress determined that S 3742 and the 

other provisions in its new sentencing law would be effective 
November 1, 1987." Id. at 126 (emphasis added). We do not 

construe this statement as binding upon our inquiry into 

the effective date of S 235(b)(3). As we noted above, most of 

the SRA provisions took effect on November 1, 1987, but 

S 235 contained explicit exceptions, so our phrase "and the 

other provisions" in Martinez-Zayas was both overbroad and 

dictum. The only SRA provision before us then wasS 3742 

(conferring appellate jurisdiction over sentences imposed in 

violation of law) and its effective date. No other provisions 

of the SRA, including S 235(b)(3), related to that decision. 

Similarly, in another indirectly related matter-- 

concerning the question whether the SRA also applies to 

offenses committed before its effective date-- we noted that 

Congress amended S 235(a)(1) of the SRA to clarify that the 

SRA applies "only to offenses committed after" November 1, 

1987. Gallardo v. Quinlan, 874 F.2d 186, 188 (3d Cir. 

1989). However, as the Seventh Circuit has noted, in 

making that clarification, Congress cannot have been 

referring to those parts of the SRA that concern parole 

transition because defendants committing offenses after 

November 1, 1987, were not subject to parole. See Norwood 

v. Brennan, 891 F.2d 179, 181 (7th Cir. 1989). If the parole 

transition provisions were applicable only to offenses 

committed after November 1, 1987, they would not apply to 

anyone. See id. Thus, our statement in Gallardo cannot be 

reasonably construed to encompass the parole transition 

provision before us in this case, S 235(b)(3). 

 7 

 

C. 

With no controlling precedent on point to guide us, we 

survey the decision of the other courts of appeals. Several 

of the courts of appeals have stated that S 235(b)(3) took 

effect on November 1, 1987. However, these statements 

were typically not grounded in analysis (referring instead to 

S 235(a), the SRA’s general effective-date provision) and 

rarely central to the holding. See Evenstad v. United States, 

978 F.2d 1154, 1158 (9th Cir. 1992); Coleman v. Honsted, 

908 F.2d 906, 908 (11th Cir. 1990); Miller v. Story, 814 

F.2d 320, 321 (6th Cir. 1987); Kimberlin v. Brewer, 825 

F.2d 1157, 1158 (7th Cir. 1987). By contrast, the Second 

Circuit in Romano v. Luther, 816 F.3d 832 (2d Cir. 1987), 

engaged in analysis and concluded, albeit in dicta, that 

S 235(b)(3) took effect upon enactment in 1984. 

We are aware of only two court of appeals cases, in the 

Ninth and Eleventh Circuits, in which the effective date of 

S 235(b)(3) was crucial to the holding.7 See Evenstad v. 

_________________________________________________________________ 

7. A number of cases have denied relief to petitioners seeking to 

challenge the timing of their release based on the 1987 amendment to 

S235(b)(3). However, with one exception, these petitioners are factually 

distinguishable from Lyons. 

In some cases, the petitioner was sentenced before the SRA was 
enacted. Thus, the petitioner was sentenced under 18 U.S.C. S 4206 that 

authorized the Commission to set release dates outside of the guideline 

range for good cause. The 1987 amendment to S 235(b)(3) merely 

restored that authority. Thus, those petitioners would not be 

disadvantaged by the amendment and could not satisfy the test for an 

ex post facto challenge. See Valladares v. Keohane, 871 F.2d 1560, 1563 

(11th Cir. 1989); Norwood, 891 F.2d at 182; Kimberlin, 825 F.2d at 

1158. By contrast, Lyons was sentenced after the SRA was enacted. 

In other cases, the petitioner was scheduled to be released before the 

end of the five-year period specified in S 235(b)(3), and the provision did 

not apply on its face. Miller, 814 F.2d at 321. By contrast, Lyons was 

scheduled to (and did) remain in the jurisdiction of the Parole 

Commission at the expiration of the five-year period. 

In still other cases, the petitioner was disqualified for relief for both of 

these reasons. See Tripati v. United States Parole Commission, 872 F.2d 

328, 329 (9th Cir. 1988); Lightsey v. Kastner , 846 F.2d 329, 333-34 (5th 

Cir. 1988). 

 8 

 

United States, 978 F.2d 1154 (9th Cir. 1991); Coleman v. 

Honsted, 908 F.2d 906 (11th Cir. 1990). The relevant 

chronological facts of those petitioners appear identical to 

our case.8 However, neither case involved an ex post facto 

challenge. Both circuits rejected the petitioners’ argument 

that the original S 235(b)(3) should have applied to them. 

We find neither circuit’s conclusion persuasive. 

In Evenstad, the petitioner argued that his guilty plea 

was involuntary because he had relied on the parole 

provisions of the original S 235(b)(3), which was later 

amended to his disadvantage. The Court stated, without 

analysis, that S 235(b)(3) did not take effect until November 

1, 1987, and therefore held that the petitioner could not 

have relied on that provision when pleading guilty in 1986. 

See Evenstad, 978 F.2d at 1158. The Ninth Circuit also 

stated that S 235(b)(3) is "a transition provision, which 

controls the timing of the Parole Commission’s decisions, 

but does not change the parole eligibility of prisoners." Id. 

We disagree with this statement. Section 235(b)(3), as 

originally enacted, did affect parole eligibility for those 

prisoners to whom it applied, as it mandated a release date 

within, rather than beyond, the guideline range. If it had 

not affected the parole eligibility of that group, then it is 

difficult to conceive why Congress amended that provision 

in 1987 to restore the Commission’s former authority to go 

beyond the guideline range. 

_________________________________________________________________ 

In one Ninth Circuit case, United States v. Silver, 83 F.3d 289 (9th Cir. 

1996), the petitioner’s chronological facts are similar to Lyons, i.e. he 

committed his crimes between 1984 and November 1, 1987 and was still 

in prison in 1992. The Court held that "the law that existed prior to the 

[SRA’s] effective date [of November 1, 1987] applies to this case," but the 

issue in that case was 18 U.S.C. S 3564, not parole or S 235(b)(3). 

8. Like Lyons, the petitioners in these two cases committed offenses after 
the SRA was enacted but before S 235(b)(3) was amended in 1987. 

Although there is no discussion of the fact in either case, it appears that 

each petitioner would have been in the Parole Commission’s jurisdiction 

at the end of the five-year period referred to inS 235(b)(3). See Evenstad, 

978 F.2d at 1156 (offense and sentence in 1986; sentenced to twelve 

years); Coleman, 908 F.2d at 907 (arrested in 1986 and sentenced to 13 

years prison). 

 9 

 

In Coleman, the petitioner argued that a release date 

within the guideline range was mandated by S 235(b)(3). 

The Court stated that S 235(b)(3) was meant solely as a 

"winding up" provision and was not meant to change the 

manner in which the Commission determined eligibility 

dates. Coleman, 908 F.2d at 908. The Court stated that this 

view was supported by the fact that Congress amended the 

section to "clarify" its intent "thirty-six days after the 

Sentencing Reform Act had taken effect," i.e., in December 

of 1987. Id. We cannot read the December 1987 

amendment as a "clarification." As originally enacted, 

S 235(b)(3) required a release date within the guideline 

range. We noted in D’Agostino that Congress realized that, 

as originally enacted, S 235(b)(3) provided"an unjustified 

windfall to some of the most dangerous prisoners" and that 

the 1987 amendment was enacted to return authority to 

the Commission to go beyond the guideline range where 

warranted. See D’Agostino, 877 F.2d at 1172, n.9 (quoting 

132 Cong. Rec. S-7940 (April 17, 1986) (statements of 

Senator Thurmond)). While the decision to mandate release 

dates within the guideline range may not have been wise, it 

is the decision that Congress made in its original 

enactment. 

We are persuaded by the reasoning of the Second Circuit 

in Romano that S 235 took effect upon enactment in 1984. 

See 816 F.2d at 839. That Court reasoned that"it would be 

highly anomalous for potions of a section creating the 

timetable for a statute to have their own effective dates 

delayed." Id. The Court observed that if another subsection 

of the same provision, S 235(b)(5), was construed as not 

taking effect until November 1, 1987, an absurd result 

would follow: 

 the Chairman of the Parole Commission, who becomes 

 an ex officio member of the Sentencing Commission by 

 virtue of subsection 235(b)(5), could not join the 

 Sentencing Commission until November 1, 1987, 

 almost six months after the Commission must submit 

 its guidelines to Congress. 

Id. at 839.9 CertainlyS 235(b)(5), although located within 

_________________________________________________________________ 

9. The Romano court nevertheless held that the petitioner was not 

eligible for relief under S 235(b)(3), because he would not be within the 

Commission’s jurisdiction on November 1, 1992. See Romano, 816 F.2d 

at 840. 
 10 

 

the SRA chapter and not explicitly excepted from the 

uniform Effective Date, must be construed as taking effect 

upon enactment. 

We agree that, absent a clear contrary intention in the 

text, "an effective date provision becomes effective the date 

of enactment." Id. Seeing no clear contrary intention in the 

text, we hold that S 235(b)(3) took effect upon enactment on 

October 12, 1984. Therefore, this original provision-- 

requiring the Commission to stay within the guideline range 

-- was in effect when Lyons committed his crimes in 1986, 

and thus the retroactive application of the 1987 

amendment to lengthen his punishment was 

unconstitutional under the ex post facto clause. 

The District Court here, after noting that implicit repeals 

are disfavored, concluded that, under the reasoning in 

Romano, S 235(b)(3) would have implicitly repealed 18 

U.S.C. S 4206(c). We think that adopting the conclusion in 

Romano would work no such repeal. The Supreme Court 

recently reiterated its rule that "when two statutes are 

capable of coexistence, it is the duty of the courts, absent 

a clearly expressed congressional intention to the contrary, 

to regard each as effective." J.E.M. Ag Supply, Inc. v. Pioneer 

Hi-Bred Int’l, Inc., 534 U.S. 124, __, 122 S. Ct. 593, 605 

(2001) (citation omitted). Section 235(b)(3) applies to the 

small class of persons (of which Mr. Lyons is a member) 

who committed crimes between October 12, 1984 and 

December 7, 1987 and who were scheduled to be in the 

Parole Commission’s jurisdiction on November 1, 1992. 

Even after S 235(b)(3) took effect, S 4206(c) still applied to 

two other classes of criminals: (1) those who committed 

their crimes before October 12, 1984 and (2) those who 

would no longer be in the Commission’s jurisdiction on 

November 1, 1992. Thus, both statutes can coexist and 

therefore both should be regarded as effective. 

The District Court found that the statutory framework 

and legislative history supported its conclusion that 

S 235(b)(3) did not take effect until November 1, 1987. It 

viewed it as a winding-up provision, intended to ensure 

that the Parole Commission take action regarding those 

inmates who were sentenced under pre-SRA law and would 

still be in prison after the Commission was phased out. 

 11 

 

Because the Commission was to continue its business for 

five years after the SRA took effect, "there was no need for 

the S 235(b)(3) to go into effect before" the SRA’s effective 

date. App. at 31 (District Court’s Memorandum). The 

Senate Report did indicate an intent to distinguish between 

pre-SRA era and SRA-era offenses, to create a seamless 

phasing out of the Commission as the SRA took effect. The 

report stated that a "sentence imposed before the effective 

date of the [Sentencing] guidelines . . . would not be 
affected by this title. As to an offense committed prior to 

the effective date, the preexisting law will apply as to all 

substantive matters including the imposable sentence." S. 

Rep. No. 98-225, reprinted at 1984 U.S.C.C.A.N. 3182, 

3372 (1985). 

It may be true that, considering the mechanics of the 

transition, "there was no need" for S 235(b)(3) to go into 

effect before the rest of the SRA. It is also possible that 

Congress wished to design a transition without the window 

of opportunity through which Lyons sees his freedom. 

However, the text of the statute is the best expression of 

the intent of Congress. Using standard tools of statutory 

interpretation, we have carefully considered both the text 

and context of S 235(b)(3) and conclude that it took effect 

upon enactment. 

III. 

We hold that S 235(b)(3) took effect on October 12, 1984, 

and, as originally enacted, applied to Lyons. Thus, he was 

a member of the class of individuals (who committed crimes 

between the enactment of the SRA in 1984 and the 

amendment of S 235(b)(3) in 1987) who are entitled to a 

parole release date within the guideline range. The 

application of the 1987 amendment to Lyons disadvantaged 

him because it permitted the Commission to set his release 

date beyond -- rather than within -- the guideline range. 

By imposing additional, retrospective punishment on Lyons, 

the amended S 235(b)(3) operated as an ex post facto law. It 

is unconstitutional as applied to Lyons. 

We will therefore reverse the District Court’s holding that 

S 235(b)(3) does not constitute an ex post facto violation 

 12 

 

against Lyons. We remand so that the District Court may 

issue the writ of habeas corpus. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 13