Hollawell v. Gillis , 65 F. App'x 809 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
4-23-2003
Hollawell v. Gillis
Precedential or Non-Precedential: Non-Precedential
Docket 99-3996
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 99-3996
_______________
JOHN HOLLAWELL,
Appellant
v.
FRANK D. GILLIS, Superintendent SCI Coal Township,
WILLIAM WARD, ALLEN CASTOR,
DAHLE BINGAMAN, SEAN RYAN, NICHOLAS MULLER,
GARY LUCHT, MICHAEL WEBSTER, JOHN ENGLE,
DAVID WITHERS, JOHN DOE(S), PBPP MEMBERS/EMPLOYEES,
ATTORNEY GENERAL OF THE COMMONWEALTH OF
PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 4:CV-99-1502)
District Judge: The Honorable Malcolm Muir
_______________
_______________
No. 01-1063
_______________
JOHN HOLLAWELL,
Appellant
v.
FRANK GILLIS, Superintendent,
WILLIAM WARD, Pennsylvania Board
of Probation and Parole Chairman
_______________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 4:CV-00-1222)
District Judge: The Honorable Malcolm Muir
_______________
ARGUED JANUARY 23, 2003
BEFORE: NYGAARD, AMBRO, and LOURIE, * Circuit Judges.
(Filed: April 23, 2003)
_______________
Dennis E. Boyle, Esq. (Argued)
Nauman, Smith, Shissler & Hall, LLP
200 N. 3rd Street, 18th Floor
Harrisburg, PA 17108-0804
Counsel for Appellant
John G. Knorr, III, Esq. (Argued)
Chief Deputy Attorney General
Calvin R. Koons, Esq.
Senior Deputy Attorney General
Francis R. Filipi, Esq.
Senior Deputy Attorney General
*
Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals for
the Federal Circuit, sitting by designation.
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Seth A. Mendelsohn, Esq.
Deputy Attorney General
Office of Attorney General
15th Floor Strawberry Square
Harrisburg, PA 17120
Counsel for Appellees
_____________
OPINION OF THE COURT
______________
LOURIE, Circuit Judge.
John Hollawell appeals from the decision of the United States District Court for the
Middle District of Pennsylvania denying his petition for a writ of habeas corpus.
Hollawell v. Gillis, No. 4:CV-99-1502, slip op. at 5 (M.D. Pa. Nov. 30, 1999) (“Hollawell
I”). Because the petition was untimely, we vacate the District Court’s order and remand
with instructions for the District Court to dismiss the petition. Mr. Hollawell also appeals
from a second decision of the same court denying a separate petition for a writ of habeas
corpus. Hollawell v. Gillis, No. 4:CV-00-1222, slip op. at 5 (M.D. Pa. Dec. 21, 2000)
(“Hollawell II”). Because that decision was in error, we vacate that decision as well.
BACKGROUND
Hollawell was convicted by a Pennsylvania court for corrupt organizations offenses,
bribery, and conspiracy. He was sentenced to serve between six and a half and twenty-three
years in a Pennsylvania correctional facility, and he began doing so in 1990. Since his
minimum term elapsed, he has been denied parole several times by the Pennsylvania Board
of Probation and Parole. He has brought numerous challenges to the Board’s actions. Two
of those challenges are the bases for the present appeals.
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First, Hollawell has alleged that the Parole Board denied him parole on the grounds
of his race (white) and comments he made criticizing the Board. More specifically, he has
alleged that specific members of the Board made statements to the effect that his race,
background, and criticisms of the Board were the reasons that he had not been paroled.
Hollawell challenged his denial of parole on those grounds by filing a petition for
mandamus in the Commonwealth Court, which rejected his petition in September 1995,
Hollawell v. Pa. Bd. of Prob. & Parole, No. 3267 C.D. 1995 (Pa. Commw. Ct. Sept. 25,
1995), and by appealing that rejection to the Pennsylvania Supreme Court, which denied his
appeal in June 1996, Pa. Bd. of Prob. & Parole v. Hollawell, Nos. 572, 573 (Pa. June 14,
1996). Thereafter, Hollawell filed a petition for a writ of habeas corpus in the District
Court in August 1999. The court denied his petition, finding that his allegations of
discrimination and retaliation by the Parole Board were unsupported and that he was denied
parole because of “poor institutional adjustment, concern for public safety and unfavorable
recommendations from various sources, including the sentencing judge.” Hollawell I at 3-
4.
Second, Hollawell has challenged the denials of parole as being violative of the Ex
Post Facto Clause of the United States Constitution due to a 1996 amendment to 61 Pa.
Cons. Stat. § 331.1, the statute governing parole standards. At the time of his conviction,
that statute read as follows:
The value of parole as a disciplinary and corrective influence and process is
hereby recognized, and it is declared to be the public policy of this
Commonwealth that persons subject to imprisonment for crime shall, on
release therefrom, be subjected to a period of parole during which their
rehabilitation, adjustment and restoration to social and economic life and
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activities shall be aided and facilitated by guidance and supervision under a
competent and efficient parole administration, and to that end it is the intent
of this Act to create a uniform and exclusive system for the administration of
parole in this Commonwealth.
61 Pa. Cons. Stat. § 333.1 (pre-1996). In 1996, the statute was amended, giving “first and
foremost” emphasis to “the safety of the public” and no longer mentioning rehabilitation of
the offender:
The parole system provides several benefits to the criminal justice system,
including the provision of adequate supervision of the offender while
protecting the public, the opportunity for the offender to become a useful
member of society and the diversion of appropriate offenders from prison.
In providing these benefits to the criminal justice system, the Board shall
first and foremost seek to protect the safety of the public. In addition to this
goal, the Board shall address input by crime victims and assist in the fair
administration of justice by ensuring the custody, control, and treatment of
paroled offenders.
61 Pa. Cons. Stat. § 333.1 (post-1996).
On July 21, 1999, when Hollawell was denied parole, the Parole Board’s rationale
tracked the language of the amended statute: “[T]he mandates to protect the safety of the
public and to assist in the fair administration of justice cannot be achieved through your
release on parole.” On December 2, 1999, Hollawell challenged that denial by filing a
petition for a writ of mandamus in the Commonwealth Court, arguing that the change in the
statute retroactively increased his punishment in violation of the Ex Post Facto Clause. The
Commonwealth Court dismissed the petition for lack of jurisdiction. Hollawell v. Pa. Bd.
of Prob. & Parole, No. 688 M.D. 1999 (Pa. Commw. Ct. Dec. 13, 1999). Although
Hollawell did not appeal that decision to the Pennsylvania Supreme Court, he did file a
subsequent petition for a writ of mandamus, invoking the Pennsylvania Supreme Court’s
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original jurisdiction and seeking the same relief on the Ex Post Facto ground. The
Pennsylvania Supreme Court denied the petition without explanation. Hollawell v. Ward,
No. 291 M.D. Misc. Dkt. 1999 (Pa. Mar. 27, 2000).1
Hollawell next filed a petition for a writ of habeas corpus in the District Court in
July 2000. The court adopted sub silentio a magistrate’s report and recommendation that
Hollawell had exhausted his state court remedies before seeking federal habeas corpus
relief. The magistrate found that any appeal by Hollawell of the decision by the
Commonwealth Court would have been fruitless because state law apparently did not permit
mandamus relief at that time. Hollawell v. Gillis, No. 4:CV-00-1222, slip op. at 12 (Nov.
2, 2000) (Magistrate’s Report & Recommendation); see also id. at 10 n.1 (noting that
Coady was pending in the Pennsylvania Supreme Court at that time). On the merits, the
court applied the Morales test, viz., whether the change to the parole law created “a
sufficient risk of increasing the measure of punishment,” and determined that the change
was not significant. Hollawell II at 4 (citing Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
509 (1995)). Looking to a related preexisting parole statute, 61 Pa. Cons. Stat. § 331.21,
and more specifically its directive to protect the “interests of the Commonwealth” from
“injury,” the court found that the law had always directed the Parole Board to protect the
public safety. Id. at 5-6.
1 The Pennsylvania Supreme Court subsequently held that it is within the
Commonwealth Court’s original jurisdiction to decide mandamus petitions raising
questions whether Parole Board decisions violate the Ex Post Facto Clause. Coady v.
Vaughn, 770 A.2d 287, 290 (Pa. 2001). Thus, the Commonwealth Court’s 1999 dismissal
of Hollawell’s petition for lack of jurisdiction would have been erroneous had it occurred
after Coady.
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Hollawell separately appealed both decisions of the District Court. We have
jurisdiction under 28 U.S.C. § 1291. We heard oral arguments for both appeals together
and set forth our decisions for each in this single opinion.
DISCUSSION
A. Appeal No. 99-3996 (Discrimination and Retaliation)
In reviewing a district court’s decision on a habeas corpus petition, we review the
court’s legal conclusions de novo and any factual findings for clear error. Ruggiano v.
Reish, 307 F.3d 121, 126 (3d Cir. 2002) (citing Rios v. Wiley, 201 F.3d 257, 262 (3d Cir.
2000)). We also review decisions regarding the timeliness of a habeas corpus petition de
novo. Johnson v. Hendricks, 314 F.3d 159, 161 (3d Cir. 2002) (citing Nara v. Frank, 264
F.3d 310, 314 (3d Cir. 2001)).
Hollawell first argues that he exhausted his state court remedies by filing a
mandamus petition challenging the denial of parole on discrimination and retaliation
grounds. He specifically points to an adverse decision by the Commonwealth Court in
September 1995 and an adverse decision on the appeal of that decision by the Pennsylvania
Supreme Court in June 1996. On the merits, he argues that he has presented sufficiently
detailed allegations of statements to the effect that the decisions denying parole were the
product of discrimination and retaliation so as to raise factual issues that merit discovery
and a hearing.
The Commonwealth responds that Hollawell’s discrimination and retaliation-based
habeas corpus actions, commenced in 1999, were well past the one-year statute of
limitations, which began at the time of the final adverse state court decision in 1996.
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Alternatively, the Commonwealth contends that Hollawell did not exhaust his state
remedies by seeking relief from the state courts within the year preceding his federal
action. On the merits, the Commonwealth contends that Hollawell’s allegations were
insufficient to justify relief, and that the Parole Board’s stated reasons for denying him
parole were sound and belie his claims of discrimination and retaliation.
We agree with the Commonwealth that Hollawell’s habeas corpus action in the
District Court was time-barred. The one-year limitations period is set by statute:
A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of –
(A) the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review; . . . .
28 U.S.C. § 2244(d)(1). Hollawell’s brief unequivocally asserts that the relevant state
court decisions occurred in 1995 and 1996. That fact was confirmed by Hollawell’s
counsel during oral argument.2 That being the case, Hollawell’s 1999 federal habeas corpus
petition was filed more than three years after the final state court decision and is therefore
clearly time-barred. Accordingly, the District Court erred in not dismissing the petition;
we therefore vacate the court’s denial of Hollawell’s petition in Hollawell I and remand for
the court to enter a dismissal with prejudice. See, e.g., Johnson, 314 F.3d at 163 (affirming
a dismissal of a habeas corpus petition as time-barred under § 2244(d)(1)); Robinson v.
Johnson, 313 F.3d 128, 143 (3d Cir. 2002) (same).
2
Hollawell has filed a flurry of state and federal petitions, raising some uncertainty
concerning which federal actions relate to which state actions. However, we believe the
record and assertions of counsel at oral argument make clear that the federal petition
involved in this appeal relates to the state petitions decided in 1995 and 1996.
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B. Appeal No. 01-1063 (Ex Post Facto Violation)
Because “the determination of whether state remedies have been exhausted and whether
exhaustion should be excused involves the application and interpretation of legal precepts,” we
review issues of exhaustion de novo. Hankins v. Fulcomer, 941 F.2d 246, 249 (3d Cir. 1991)
(citing Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir. 1986); Sullivan v. Cuyler, 723
F.2d 1077, 1082 (3d Cir. 1983)). Because the determination whether a change in law violates
the Ex Post Facto Clause is a quintessentially legal question, we also review that issue de novo.
See Ruggiano, 307 F.3d at 126.
1. Exhaustion of State Remedies
Hollawell preemptively argues that he properly exhausted the state remedies
available to him before filing for habeas corpus relief in federal court. He argues that he
filed petitions for mandamus in both the Commonwealth Court and the Pennsylvania
Supreme Court, but that his petitions were denied under the then-existing (pre-Coady) law.
The Commonwealth responds that Hollawell was required to appeal the Commonwealth
Court’s denial to the Pennsylvania Supreme Court, rather than merely file a separate
mandamus petition in the Supreme Court.
We agree with Hollawell that the exhaustion requirement poses no obstacle to our
rendering a decision on the merits in this case. The exhaustion requirement, codified at 28
U.S.C. § 2254(b), is grounded in comity and affords states a full opportunity to correct
constitutional violations before the federal courts consider the issues. O’Sullivan v.
Boerckel, 526 U.S. 838, 844-45 (1999). A habeas petitioner gives the state courts a full
opportunity to address his case by attempting to appeal through the chain of appeals to the
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state’s highest court. Id. at 845 (“[S]tate prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the
State’s established appellate review process.”).
In this case, Hollawell has apparently technically not complied with the requirement
to present his Ex Post Facto case through the state court system’s chain of appeals. Rather
than appeal the Commonwealth Court’s decision to the Pennsylvania Supreme Court, he
filed a new petition in the Pennsylvania Supreme Court seeking a decision in the first
instance. Notwithstanding that failure to appeal, we conclude that Hollawell has satisfied
the exhaustion requirement. First, Hollawell filed both state mandamus petitions as a pro
se litigant, and we are somewhat forgiving of the shortcomings of pro se litigants
concerning such technical matters as the distinction between appellate review of a lower
court’s decision and invoking the original jurisdiction of an appellate court. Second,
Hollawell did obtain a decision from the Commonwealth’s highest court, and it is quite
possible that the Pennsylvania Supreme Court, obviously aware of the lower court’s
decision, treated his pro se petition as being equivalent to an appeal. In any event, it acted
upon and denied that petition. Third, the state law at the time arguably did not permit the
mandamus relief Hollawell was seeking, thus bringing him within an exception to the
exhaustion requirement. See 28 U.S.C. § 2254(b)(1)(B). Thus, we consider that the appeal
is properly before us.
2. Ex Post Facto Violation: Merits
In his original briefs and oral argument, Hollawell has argued that the change in the
statute altered the factors to be considered by the Parole Board and thus constituted a more
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serious statutory change than those previously upheld as nonviolative of the Constitution.
According to Hollawell, the old statute gave primary importance to the rehabilitation of the
offender, while the amended statute introduced a new condition — “protection of the safety
of the public” — and further made that new condition the paramount one. Hollawell
contends that the new condition is truly new and not merely a restatement of 61 Pa. Cons.
Stat. § 331.21, which directed the Parole Board to protect the “interests of the
Commonwealth.” Finally, Hollawell contends that parole release rates have decreased
significantly since the change in the law, indicating that the change has increased the
penalties for criminal violations.
In its original briefs and oral argument, the Commonwealth has responded that
parole decisions have always been at the discretion of the Parole Board and that the
amendment therefore did not amount to a “law” for Ex Post Facto purposes. The
Commonwealth also contends that, even before the amendment, the Parole Board was
obliged to consider public safety under the “interests of the Commonwealth” prong of
§ 331.21. Finally, the Commonwealth disputes the accuracy and significance of
Hollawell’s empirical data concerning parole rates.
After oral argument in this case, this court issued a decision in Mickens-Thomas v.
Vaughn, 321 F.3d 374 (3d Cir. 2003), holding that the statutory change did constitute an Ex
Post Facto violation with respect to an individual already sentenced. At our direction, the
parties submitted supplemental briefs addressing the impact of Mickens-Thomas on this
case. Hollawell’s supplemental brief contends that Mickens-Thomas confronted the
identical issue presented in this case, and squarely rejected the same arguments that the
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Commonwealth now advances. According to Hollawell, he should receive a new parole
hearing applying the pre-amendment standards, just as Thomas received. The
Commonwealth’s supplemental brief makes three contentions. First, Mickens-Thomas
does not reach the exhaustion issue present in this case. Second, the decision in Mickens-
Thomas rests upon an extensive factual record that is not present in this case. Third,
according to the Commonwealth, Mickens-Thomas was incorrectly decided and should be
reconsidered.
The Constitution forbids Congress and the states from enacting Ex Post Facto laws.
U.S. Const. art. I, § 9, cl. 3, § 10, cl. 1. The relevant Ex Post Facto Clause reads as follows:
“No State shall . . . pass any . . . ex post facto Law . . . .” Id., § 10, cl. 1. The Supreme Court
of the United States has interpreted that clause to prohibit “laws that retroactively alter the
definition of crimes or increase the punishment for criminal acts.” Morales, 514 U.S. at
504 (quotations omitted).
As an initial matter, we agree with Hollawell that 61 Pa. Cons. Stat. § 331.1constitutes a “law” for Ex Post Facto purposes. It is legislation that clearly directs which
factors the Parole Board must consider in exercising its discretion to grant or deny parole.
Although one does not have a constitutional right to parole, and a decision to grant or deny
parole to a Pennsylvania inmate is a discretionary one that is not subject to direct judicial
review, Coady, 770 A.2d at 289, a parole decision can be collaterally attacked on
constitutional grounds, including the Ex Post Facto Clause. Indeed, the Supreme Court has
recently considered two appeals concerning when a retroactive change in parole rules
violates the Ex Post Facto Clause. In Morales, the Court upheld a California law that
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authorized its Parole Board, after the first parole hearing, to hold following parole hearings
in two or three years rather than one year, provided that the Board found that the prisoner
would not reasonably be expected to be suitable for parole in the next year or two,
respectively. 514 U.S. at 507. In Garner v. Jones, the Court upheld a similar Georgia law
that allowed the Parole Board to increase the interval between hearings from a maximum of
three years to eight years. 529 U.S. 244, 247 (2000). Thus, changes in the law that
effectively extend the time before parole rehearings can occur do not necessarily violate
the Ex Post Facto Clause.
The test set out in Morales for determining whether a parole law amendment
violates the Ex Post Facto Clause involves a two-step inquiry. First, the court must
determine “[w]hether [the amendment] produces a sufficient risk of increasing the measure
of punishment attached to the covered crimes.” Morales, 514 U.S. at 509. If not, then the
amendment may nonetheless still violate the Ex Post Facto Clause if the challenger
“demonstrate[s], by evidence drawn from the rule’s practical implementation by the agency
charged with exercising discretion, that its retroactive application will result in a longer
period of incarceration than under the earlier rule.” Garner, 529 U.S. at 255.
Regarding the first inquiry, the Court in both Morales and Garner took care to
expressly distinguish the amendment before it — amendments relating to the timing of an
offender’s parole hearings — from an amendment relating to “the standards for . . .
determining his suitability for parole.” Morales, 514 U.S. at 507; Garner, 529 U.S. at 250.
This case presents a question of that latter type, viz., whether retroactive application of a
parole statute amendment expressing for the first time that “the board shall first and
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foremost seek to protect the safety of the public” violates the Ex Post Facto Clause.
In Mickens-Thomas, this court answered the question affirmatively. Thomas had
been serving a life sentence, without the possibility of parole, for the rape and murder of a
twelve-year-old girl in 1964. 321 F.3d at 376. Governor Casey commuted the life
sentences of Thomas and 26 others, thereby rendering them eligible to apply for parole. Id.
at 377. Thomas applied for parole three times between 1996 and 2000. Id. at 380-83.
Despite release recommendations from Department of Corrections staff, Thomas’s
participation in counseling and therapy, and favorable psychiatric evaluations, the Board
denied his application each time, referring in the first two denials to Thomas’s “assaultive
instant offense” and “very high assaultive behavior potential,” id. at 381-82, and stating in
the final denial that “the mandates to protect the safety of the public and to assist in the fair
administration of justice cannot be achieved through your release on parole,” id. at 382.
Of all the prisoners who had had their life sentences commuted by then-Governor Casey,
Thomas was the only one not released on parole. Id. at 385.
The court in Mickens-Thomas held that Pennsylvania’s change to the parole statute
altered the manner in which the Parole Board weighed public safety in making parole
decisions:
The record is convincing that after 1996, the Board applied to the public
safety interest far greater weight. The evidence here demonstrates that since
1996, the Board has given special weight to the risk to public safety.
Pre-1996, a prisoner could be denied parole because of public safety
concerns only if those concerns together with other relevant factors
outweighed, by a preponderance, the liberty interests of the inmate. The 1996
policy change placed first and foremost the public safety to the disadvantage
of the remaining liberty interest of the prisoner.
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Id. The court described the statistical evidence as “staggering,” noting that in 266 historical
instances of commuted life sentences, Thomas was the only one not granted parole within
his first two attempts. Id. The court accordingly ordered that Thomas’s parole application
be remanded to the Parole Board for review under the pre-1996 rules. Id. at 393.
We are aware of the recent decision of the Pennsylvania Supreme Court considering
whether the statutory amendment violates the Ex Post Facto Clause: Winklespecht v. Pa.
Bd. of Prob. & Parole, 813 A.2d 688, 692 (Pa. 2002). The Court there held that the
Pennsylvania amendment was merely a new expression of a standard that had previously
been inherent in the law. However, Mickens-Thomas is a precedent of this court, binding
unless overruled en banc or by the Supreme Court of the United States, and the
Commonwealth’s arguments attempting to distinguish Mickens-Thomas are not convincing.
First, as explained above, we do not accept the Commonwealth’s contention that we need
not reach the merits of Hollawell’s Ex Post Facto claim because he has not exhausted his
state remedies. Second, the Commonwealth’s contention that the Mickens-Thomas
decision is predicated on a factual record not developed in this case, although true, does not
have the effect that the Commonwealth urges. Mickens-Thomas clearly holds as a legal
matter that the Pennsylvania statutory change violates the Ex Post Facto Clause. Moreover,
to the extent that that holding is premised on factual evidence of the amendment’s practical
effect, Hollawell might rely on that same evidence and achieve the same result if we were
to needlessly remand this case for factual development in the District Court. Third, and
finally, this panel of the court cannot, as the Commonwealth would like, overrule Mickens-
Thomas even if we might disagree with it. It is binding precedent that we must follow.
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Accordingly, we vacate the decision of the District Court in Hollawell II and, as the
Mickens-Thomas panel did, 321 F.3d at 393, remand for the District Court to order the
Pennsylvania Board of Probation and Parole to re-adjudicate Hollawell’s parole application
applying the pre-1996 statute and corresponding rules.
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TO THE CLERK:
Please file the foregoing opinion.
/s/Alan D. Lourie
Circuit Judge