Pleaze v. Klem , 335 F. App'x 168 ( 2009 )


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  •                                                                                                                            Opinions of the United
    2009 Decisions                                                                                                             States Court of Appeals
    for the Third Circuit
    7-1-2009
    Pleaze v. Klem
    Precedential or Non-Precedential: Non-Precedential
    Docket No. 07-4652
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    Recommended Citation
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    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1090
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    NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 07-4652
    ____________
    DARREN PLEAZE,
    Appellant
    v.
    SUPERINTENDENT EDWARD KLEM;
    PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
    ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA
    ____________
    On Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. No. 07-cv-00830)
    District Judge: Honorable James M. Munley
    ____________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    June 2, 2009
    Before: FISHER and CHAGARES, Circuit Judges, and DIAMOND,* District Judge.
    (Filed: July 1, 2009)
    ____________
    OPINION OF THE COURT
    ____________
    FISHER, Circuit Judge.
    *
    Honorable Paul S. Diamond, United States District Judge for the Eastern District
    of Pennsylvania, sitting by designation.
    Darren Pleaze appeals the order of the District Court denying his petition for a writ
    of habeas corpus pursuant to 28 U.S.C. § 2254, arguing that the District Court erred in
    rejecting his claim that the Pennsylvania Board of Probation and Parole (the “Parole
    Board”) violated the Ex Post Facto Clause of the U.S. Constitution by subjecting him to
    the requirements of a statute passed more than a year after his conviction. We disagree
    and will affirm.
    I.
    We write exclusively for the parties, who are familiar with the factual context and
    legal history of this case. Therefore, we will set forth only those facts necessary to our
    analysis.
    Pleaze was convicted of robbery in the Court of Common Pleas of Allegheny
    County on March 29, 1999. He is currently serving a five-and-a-half to eleven year
    sentence in the state prison system, with his maximum term expiring on March 29, 2010.
    On April 25, 2001, the Pennsylvania Department of Corrections (“DOC”) issued a
    “Prescriptive Program Plan” for Pleaze, recommending that he participate in various
    institutional programs, including employment training, vocational education, drug and
    alcohol education, anger management, and a sexual offender orientation. Pleaze
    subsequently completed the recommended programs, including the sexual offender
    orientation.
    2
    Pleaze became eligible for parole on September 29, 2004. Since then, the Parole
    Board has denied him parole on at least four occasions. It based the denials on, inter alia,
    Pleaze’s negative parole hearing interviews and his failure to complete additional
    institutional programs (including, in particular, additional sexual offender programs).1
    After his third denial of parole in September 2005, Pleaze filed a petition for a writ
    of mandamus in the Pennsylvania Court of Common Pleas, alleging that the Parole Board
    retroactively applied changes in criteria to deny him parole and thereby violated the Ex
    Post Facto Clause. Specifically, he argued that the Parole Board applied to him 42 Pa.
    Cons. Stat. § 9718.1, which requires prisoners convicted of the offenses listed therein,
    each of which is a sexual offense relating to a minor, to participate in a DOC “program of
    counseling or therapy designed for incarcerated sex offenders” to be eligible for parole.
    The Court of Common Pleas treated Pleaze’s filing as a petition for review and dismissed
    it. While Pleaze’s subsequent allocatur petition to the Supreme Court of Pennsylvania
    was pending, the Parole Board denied Pleaze parole for the fourth time, and the Supreme
    Court then dismissed his petition.
    Pleaze filed the present habeas petition in the District Court, arguing that the
    Parole Board erred in applying § 9718.1 to him during his parole hearings in two ways:
    first, because the statute was passed on December 20, 2000, more than a year after his
    1
    For reasons unclear from the record, Pleaze never completed these other sexual
    offender programs.
    3
    conviction, it was improperly applied retroactively; and, second, Pleaze was convicted of
    robbery, which is not one of the enumerated offenses in the statute. The District Court
    held that the Parole Board did not apply the statute retroactively to Pleaze, the Board’s
    procedures did not increase his term of punishment, and Pleaze’s failure to complete the
    additional sexual offender programs was not the sole reason for his denial of parole.
    Pleaze filed this timely appeal. We granted Pleaze’s petition for a certificate of
    appealability as to whether the District Court erred in rejecting his ex post facto claim.
    II.
    The District Court had subject matter jurisdiction over Pleaze’s habeas petition
    pursuant to 28 U.S.C. § 2254. We exercise jurisdiction over this appeal pursuant to 28
    U.S.C. §§ 1291 and 2253. Because the District Court denied Pleaze’s habeas petition
    without conducting an evidentiary hearing, we exercise plenary review. Richardson v.
    Pa. Bd. of Prob. & Parole, 
    423 F.3d 282
    , 287 n.3 (3d Cir. 2005); Zettlemoyer v.
    Fulcomer, 
    923 F.2d 284
    , 291 & n.5 (3d Cir. 1991).
    III.
    The Ex Post Facto Clause states that “[n]o state shall . . . pass any . . . ex post facto
    law,” U.S. Const. art. I, § 10, cl. 1, which has been defined to include any “change [that]
    alters the definition of criminal conduct or increases the penalty by which a crime is
    punishable.” Cal. Dep’t of Corr. v. Morales, 
    514 U.S. 499
    , 506 n.3 (1995). In order to
    maintain a claim for habeas relief as a result of an ex post facto violation, Pleaze must
    4
    establish two factors, namely that “there was a change in the law or policy which has been
    given retrospective effect” and that he “was disadvantaged by the change.” 
    Richardson, 423 F.3d at 287-88
    ; see also Weaver v. Graham, 
    450 U.S. 24
    , 29 (1981); Mickens-
    Thomas v. Vaughn, 
    321 F.3d 374
    , 383-84 (3d Cir. 2003). Pleaze contends that the Parole
    Board improperly denied him parole in violation of the Ex Post Facto Clause because it
    applied § 9718.1 to him, resulting in an actual risk of an increase in his sentence, and that
    the District Court therefore erred in denying his habeas petition because he met both
    factors under Richardson. We find these arguments inapposite because the Parole Board
    did not apply § 9718.1 in denying Pleaze parole, and therefore he cannot meet either
    prong.
    A.
    Pleaze argues he has met the first requirement, that “there was a change in the law
    or policy which has been given retrospective effect,” because, he contends, the Parole
    Board applied § 9718.1 to him, which was improper because the statute was enacted more
    than a year after his conviction and also because he was not serving a sentence for one of
    the enumerated offenses in the statute. The Commonwealth argues, in contrast, that
    mandatory participation in the sexual offender programs under § 9718.1 did not create a
    retroactive change in policy and that, regardless, the Parole Board never applied the
    statute’s requirement to Pleaze. We agree with the Commonwealth.
    5
    First, the DOC had the ability to, and did, deny parole to some inmates who failed
    to undergo sexual offender treatment prior to the passage of § 9718.1. See, e.g., Hibbard
    v. Pa. Bd. of Prob. & Parole, 
    816 A.2d 344
    , 346-47 (Pa. Commw. Ct. 2003) (rejecting the
    petitioner’s arguments that the application of § 9718.1 requirements resulted in an ex post
    facto application of law based on the Parole Board denying the petitioner parole because
    he failed to participate in a sexual offender program). Further, the Parole Board has wide
    discretion to make decisions regarding parole based on a variety of factors. Although the
    Board cited Pleaze’s failure to complete additional sexual offender programs as a factor
    in denying him parole (though it never referenced § 9718.1), Pleaze’s successful
    completion of an advanced sexual offender program was one of many factors the Board
    could consider in evaluating his parole applications. See 
    Richardson, 423 F.3d at 284
    (stating that the Pennsylvania Parole Act allows the Board to consider, inter alia, “the
    prisoner’s complete criminal record, conduct while in prison, ‘physical, mental[,] and
    behavior condition and history,’ the ‘nature and circumstances of the offense committed,’
    and ‘the general character and background of the prisoner’” (quoting 61 Pa. Cons. Stat.
    § 331.19)). Nothing indicates that the Board intended to retroactively apply the
    requirements of § 9718.1 to Pleaze or that it made its decision regarding his parole based
    on improper considerations. The Board never claimed that Pleaze was ineligible for
    parole by barring him from applying or refusing to consider his application, which is the
    remedy for failure to comply with § 9718.1.
    6
    Finally, Pleaze argues that the Parole Board erred in supposedly applying § 9718.1
    to him because he was convicted of robbery, which is not one of the offenses included
    within the scope of the statute. The fact that the statute covers sexual offenses relating to
    minors, and not a robbery conviction, merely underscores our conclusion that the Parole
    Board did not retroactively apply the statute to him.
    Thus, even absent § 9718.1, the Parole Board was free to reject Pleaze’s
    application for parole due to his failure to complete a recommended program, and we
    disagree with Pleaze that the Parole Board applied the statute to him.
    B.
    Even were we to assume that the Parole Board did apply § 9718.1 to Pleaze, his
    argument still fails because he cannot meet the second factor under Richardson, requiring
    him to show that he “was disadvantaged by the change” in law. Pleaze carries “the
    ultimate burden of establishing that the measure of punishment itself has changed,”
    
    Morales, 514 U.S. at 510
    n.6, and he “must show that as applied to his own sentence the
    law created a significant risk of increasing his punishment.” Garner v. Jones, 
    529 U.S. 244
    , 255 (2000).
    Pleaze argues that although the Parole Board did not explicitly cite § 9718.1, it
    clearly applied it in denying him parole, and that its retroactive application directly
    resulted in his increased punishment because “but for the statute . . . , he would not have
    been required to take a sex offender program.” But “a ‘speculative and attenuated
    7
    possibility of . . . increasing the measure of punishment’ is not enough” of a showing to
    meet Pleaze’s burden. 
    Richardson, 423 F.3d at 288
    (alteration in original) (quoting
    
    Morales, 514 U.S. at 509
    ). For example, in Mickens-Thomas, we granted habeas relief to
    a prisoner who presented evidence indicating that he had a significant likelihood of parole
    under an old policy but was denied it under a new law, and that the Parole Board had
    paroled all other similarly situated inmates prior to the change in 
    law. 321 F.3d at 387
    .
    However, unlike the prisoner in Mickens-Thomas, Pleaze has not demonstrated that but
    for § 9718.1 he would have been paroled, or that other similarly situated prisoners were
    paroled prior to the passage of the statute. See also 
    Richardson, 423 F.3d at 291-94
    .
    IV.
    For the foregoing reasons, we will affirm the District Court’s order denying
    Pleaze’s petition for a writ of habeas corpus.
    8