NOT PRECEDENTIAL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.
David Rudovsky, Esquire (Argued)
Jonathan H. Feinberg, Esquire
Kairys, Rudovsky, Messing & Feinberg
718 Arch Street
Suite 501 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 12th Street, 3rd Floor
Philadelphia, PA 19107
John G. Knorr, III, Esquire (Argued)
Kenneth L. Joel, Esquire
Office of Attorney General of Pennsylvania
Strawberry Square, 15th 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 Appellees
2
OPINION
ROTH, Circuit Judge:
Petitioner 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, 321 F.3d 374 (3d Cir. 2003) (Mickens-Thomas I), and Mickens-Thomas v.
Vaughn, 355 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 amended in 1996
and thereafter. We will therefore grant unconditional habeas corpus relief to Thomas.
I. Factual and Procedural Background
Thomas, who is 82 years old, was convicted in 1966 of the rape and murder of a
12-year-old girl. After new evidence cast doubt on the basis 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 parole on July 21, 1996. Since
1
Thomas has consistently maintained his innocence throughout his two trials and
forty-seven years of incarceration Whether he is guilty or innocent is not, however,
relevant to the present proceeding.
3
that time, Thomas has repeatedly sought release on parole. Each request for parole has
been denied. Each denial has been based primarily on statutory requirements that
Pennsylvania adopted after Thomas‘s conviction, requiring 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 states that the Board‘s
application of this requirement represents ―a continuous 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 denied
parole because the Board 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 post facto clause of the United States Constitution. The District Court
granted 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 remanding 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 adhering 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.
4
prohibition in our earlier opinion.‖ Mickens-Thomas II, 355 F.3d at 304. Thomas filed
his second habeas 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 subjecting Thomas to a post-1996 requirement that 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
sufficient 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.
While on parole, the Parole Board assigned Thomas to an ―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
community 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 Board‘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].‖
5
discharge from the treatment program. Failure to complete the program was a violation
of parole and was the basis for Thomas‘s arrest.
On February 17, 2006, as a result of the parole violation, the Board ordered
Thomas to serve nine months of incarceration, known as ―backtime,‖ and to ―comply
with the institution‘s prescriptive program requirements and have no misconducts.‖
Thomas then filed a motion 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 backtime, the prison authorities
determined that Thomas did not need any alcohol or drug treatment, nor did he require
any mental health services.
After 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 hearing
to be held in or after July 2007. Although the Board did not explicitly refer 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 repeatedly applied for
6
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, the court granted
Thomas‘s application, but in the same order summarily denied his habeas petition.
Thomas then filed a Motion to Enforce Judgment on March 18, 2009, in the
Eastern District of Pennsylvania. The District Court denied Thomas‘s motion, 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
Mickens-Thomas II. On 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
Thomas‘s next parole hearing whether ―he successfully completed a treatment program
for: sex offenders.‖5
Thomas appealed to this Court.
4
Thomas has requested parole every year since 2006. Each request has 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.
7
II. Discussion
A. Jurisdiction, Standard of Review, and Exhaustion Requirement
The District Court had jurisdiction 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 timely 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 ex post facto clause—has been litigated throughout the Pennsylvania
courts and several 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-
8
exclusive jurisdiction over habeas claims per 42 Pa. Stat. § 721(1), and which, rather than
transfer 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, appellees assert both in their
response 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 deviance 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 appellees‘ 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 completion of his nine-month backtime. As we have determined in Mickens-
Thomas I and II, that requirement is a violation of the ex post facto clause of the
Constitution.
Appellees 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 offer them to
9
constitute an ―escalating pattern of high risk behavior.‖ First, Thomas self-reported this
violation – the 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, appellees‘ characterization of this event as
presenting a ―significant danger to [the treatment provider‘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). The Board could have ordered 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 backtime 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 appellees‘
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 community, 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 also Lizardo v United States, 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
unremittingly 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.
10
claim that Thomas presented a danger to 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.‖
This explanation, in addition to lacking credibility, appears to be a post-hoc
rationalization to disguise the Board‘s real reason for denying Thomas‘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 Corrections agent after Thomas
received his first re-parole refusal notice. On March 28, 2007, the 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 group 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 appellees‘ assertion that the Board did not
apply section 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,
appellees‘ counsel conceded that Thomas will not be released on parole until he admits
guilt as part and parcel of a sex offender treatment program.
11
In Mickens-Thomas II, we concluded that, despite not explicitly mentioning
section 9781.1, the Board was applying that section retroactively to Thomas as grounds
for denying parole. The same situation is present here, where appellees continue to claim
unconvincingly that section 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 appellees‘ counsel during oral
argument, we find that the Board‘s application of section 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 these 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, we will vacate the judgment of the District Court and
we direct Donald Vaughn, Superintendent of the Pennsylvania State Correctional
Institute at Graterford, 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.
12