Steven McLaurin v. DAVID LARKINS On Appeal from the United States District Court for the Western…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 00-3407
STEVEN MCLAURIN,
Appellant
v.
DAVID LARKINS
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 00-cv-00177E)
District Judge: Hon. Sean J. McLaughlin
Submitted Under Third Circuit LAR 34.1(a)
September 2, 2003
Before: SLOVITER, NYGAARD and ROTH, Circuit Judges
(Filed: September 18, 2003)
OPINION OF THE COURT

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SLOVITER, Circuit Judge.
I.
Appellant Steven McLaurin appeals to this court from the order of the District
Court dismissing his 28 U.S.C. § 2254 petition for habeas corpus relief and denying his
requested certificate of appealability. Because the District Court did not have the benefit
of our recent decision in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), we
will remand to the District Court to consider McLaurin’s ex post facto claims in light of
Mickens-Thomas.
II.
Inasmuch as the parties are familiar with the factual and procedural background of
this case, we refer only to those facts as are pertinent to the issue under consideration.
McLaurin is currently serving a twelve and a half to twenty five year prison sentence for
robbery and criminal conspiracy to commit robbery. His minimum date of incarceration
expired on December 30, 1995, whereas his maximum date of incarceration will end on
June 30, 2008. McLaurin was last interviewed for parole on July 15, 1998. The
Pennsylvania Board of Probation and Parole (“Board”) denied parole at that time.
Following this denial of parole, McLaurin sought declaratory relief in the
Pennsylvania Commonwealth Court, which dismissed his claims. After unsuccessfully
filing a petition for allowance of appeal in the Pennsylvania Supreme Court, McLaurin
filed a petition for a writ of habeas corpus in the United States District Court for the

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1 Because the District Court adopted the Magistrate Judge’s report and
recommendation, we will refer to the adopted opinion as that of the District Court.
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Western District of Pennsylvania on May 24, 1999. His petition was referred to a
Magistrate Judge who issued a report and recommendation, which the District Court
adopted as its own opinion on March 22, 2000.1 The District Court rejected McLaurin’s
ex post facto claims and denied a certificate of appealability because McLaurin “has not
made a substantial showing of the denial of a constitutional right.” Exhibit C at 34 (Br. of
Appellant). McLaurin appealed to this court.
III.
The District Court denied McLaurin’s ex post facto claims long before our
decision in Mickens-Thomas, where we held that the retroactive application of the 1996
amendment to Pennsylvania’s Parole Act’s statement of public policy violated the Ex Post
Facto Clause. 321 F.3d at 393. To be exact, we held that “to retroactively apply changes
in the parole laws made after conviction for a life sentence in Pennsylvania that adversely
affect the release of prisoners whose sentences have been commuted, violates the Ex Post
Facto clause.” Id.
Admittedly, the holding of Mickens-Thomas does not directly control every issue
in the case before us as McLaurin, unlike Mickens-Thomas, is not serving a life sentence
that has been commuted. Also, Mickens-Thomas challenged only the Parole Act’s public
policy statement whereas McLaurin challenges that statement, in addition to various other

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2 In its brief, the Commonwealth states that that section was not applied to
McLaurin’s application and notes that the Board of Probation and Parole conceded in
Myers v. Ridge, 712 A.2d 791 (Pa. Cmwlth. 1998), that it could not constitutionally apply
the amended statute to a prisoner who committed his crime before the date of the
amendment.
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parole requirements. Specifically, McLaurin challenges the requirement that there must
be an affirmative agreement of three reviewers to grant parole to “violent offenders,” the
requirement for the Board’s Chairman to certify as a prerequisite to parole eligibility that
a parole applicant has complied with all statutory requirements including a requirement
that a “violent offender” has served at least one year in a prerelease center,2 and the
requirement that the Board consider and determine whether the parole applicant has
served the minimum sentence recommended by the Pennsylvania Sentencing Guidelines.
Br. of Appellant at 14-15. Notwithstanding that McLaurin’s ex post facto challenges are
broader than that at issue in Mickens-Thomas, our thorough ex post facto analysis in
Mickens-Thomas is highly instructive and we believe the District Court may have treated
McLaurin’s petition differently if it had had the benefit of that decision. Thus, we
remand McLaurin’s case to the District Court to reconsider its ex post facto claims in
light of Mickens-Thomas.
It should be noted that in Mickens-Thomas, we remanded the case to the District
Court to order the Board to conduct a new hearing for Mickens-Thomas applying the pre-
1996 statute. 321 F.3d at 393; see also Hollawell v. Gillis, 2003 U.S. App. LEXIS 7718
(3d Cir. 2003) (in light of Mickens-Thomas, remanding to the district court to order

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3 Pennsylvania’s Attorney General has recently filed a Petition for Certiorari to the
United States Supreme Court in both Mickens-Thomas and Hollawell. Thus, the District
Court may choose to stay this matter on remand pending the Supreme Court’s decision on
that Petition.
Board to conduct new hearing for prisoner with pre-1996 statute).3 At minimum, on
remand, the District Court should do the same.
For the reasons set forth above, we will vacate the order of the District Court and
remand for its consideration as set forth above.
TO THE CLERK:
Please file the foregoing opinion.
/s/ Dolores K. Sloviter
Circuit Judge

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