Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-25-2003
Hart v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1890
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"Hart v. PA Bd Probation" (2003). 2003 Decisions. Paper 92.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1890
___________
ALEXANDER V. HART
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE; PHILIP L. JOHNSON,
and MIKE FISHER,
Appellants
________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA
District Court Judge: The Hon. Donetta W. Ambrose
(D.C. Civil No. 01-1768)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 21, 2003
Before: ALITO, FUENTES, and ROSENN, Circuit Judges.
(Opinion Filed: November 25, 2003)
________________________
OPINION OF THE COURT
________________________
FUENTES, Circuit Judge:
In 1985, Petitioner/Appellee Alexander Hart began serving a 10-20 year sentence after
pleading guilty to aggravated assault, robbery, burglary and criminal conspiracy. He became
eligible for parole on May 25, 1995, and was denied parole five times between October 1995
and November 2000, largely based on the Pennsylvania Parole Board’s determination that
he posed a continued threat to the community. Meanwhile, in 1995 and 1996, the
Pennsylvania Parole Act was amended to shift the focus of the parole program from prisoner
rehabilitation to protection of public safety. Hart filed a Petition for a Writ of Habeas Corpus
in September 2001, asserting, among other things, that Appellants rejected his parole request
based on the Parole Act amendments and that, because these amendments postdated his
conviction, their application to his parole requests violated the Ex Post Facto clause of the
Constitution. The District Court agreed, relying on this Court’s decision in Mickens-Thomas
v. Vaughn, 321 F.3d 374 (3 rd Cir. 2003), cert. denied, No. 03-47, 2003 WL 21692664, at *1
(U.S. Oct. 6, 2003). The District Court accordingly remanded to the Board for a new hearing
by the Pennsylvania Parole Board under the standards of the Pennsylvania Parole Act prior
to the amendments of 1995 and 1996.
On appeal, the state officials do not contend that Mickens-Thomas is distinguishable
from the case before us, nor do they argue that the District Court improperly applied that
case. Rather, the state officials contend that Mickens-Thomas was wrongly decided and
ought to be overruled by the Court en banc. Appellants’ Br. at 16. Specifically, they contest
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that the Mickens-Thomas court’s ruling that the Parole Board understood the Parole Act
amendments as substantively changing Pennsylvania law. Appellants argue that the
Mickens-Thomas court should have looked only to legislative intent, not to the Parole
Board’s understanding of that intent; alternatively, Appellants assert that the Mickens-
Thomas court misread the Parole Board’s understanding of the Parole Act amendments.
Mickens-Thomas is a binding precedential opinion, and can only be overturned by an
en banc panel of this Circuit or by the Supreme Court. E.g., Blair v. Scott Specialty Gases,
283 F.3d 595, 610-11 (3 rd Cir. 2001); see also Hollawell v. Gillis, No. 99-3996, 65 Fed.
Appx. 809, 816 (3 rd Cir. Apr. 23, 2003) (“this panel of the court cannot, as the
Commonwealth would like, overrule Mickens-Thomas even if we might disagree with it”).
We note that the court en banc of this Circuit denied the petition for rehearing, and that on
October 6, 2003, the Supreme Court denied the petition of the Pennsylvania Parole Board for
certiorari. Mickens-Thomas, therefore, is the law of this Circuit. Here, after carefully
examining the record and the arguments presented, the District Court determined that remand
to the Parole Board was warranted based on the teachings of Mickens-Thomas. We discern
no error in the District Court’s ruling. Accordingly, we affirm the District Court’s judgment.
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TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
Hart v. PA Board of Probation and Parole
No. 03-1890
ALITO, Circuit Judge, concurring.
I concur in the judgment and opinion of the Court because our panel is required to
follow Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), cert. denied, 124 S. Ct. 229
(2003).
s/s Samuel A. Alito, Jr.
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