Earl Robinson v. EDWARD F. REILLY, JR.,Chairman US Parole Commission

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4312
EARL ROBINSON,
Appellant
v.
EDWARD F. REILLY, JR.,Chairman US Parole Commission;
RONNIE R. HOLT
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 07-cv-02153)
District Judge: Honorable William J. Nealon
Submitted Pursuant to Third Circuit LAR 34.1(a) and For Determination of Whether a
Certificate of Appealability Should Issue
July 22, 2009
Before: SLOVITER, AMBRO and GREENBERG, Circuit Judges
(Opinion filed: July 23, 2009)
OPINION
PER CURIAM
Earl Robinson appeals the District Court’s order denying his petition filed pursuant

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to 28 U.S.C. § 2241. The procedural history of this case and the details of Robinson’s
claims are well known to the parties, set forth in the District Court’s thorough opinion,
and need not be discussed at length. Briefly, Robinson is serving a sentence of nine to
twenty-seven years in prison for aggravated assault while armed. After being denied
parole, Robinson filed a § 2241 petition in which he argued that the United States Parole
Commission’s application of its District of Columbia parole guidelines violated the Ex
Post Facto Clause.
The District Court denied the petition, and Robinson filed a timely notice of appeal.
Because Robinson was convicted by a District of Columbia court, he is considered
a state prisoner. See Madley v. United States Parole Comm’n, 278 F.3d 1306, 1309 (D.C.
Cir. 2002). Thus, although styled as a § 2241 petition, his petition should have been
treated as one filed pursuant to 28 U.S.C. § 2254, and we will treat his notice of appeal as
a request for a certificate of appealability. See Coady v. Vaughn, 251 F.3d 480, 486 (3d
Cir. 2001); Madley, 278 F.3d at 1310. We may issue a certificate of appealability “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). In order to show a violation of the Ex Post Facto Clause, Robinson
must show that, as applied to his sentence, the change in the law created a significant risk
of increasing his punishment. Garner v. Jones, 529 U.S. 244, 255 (2000). “[T]he
ultimate question is the effect of the change in parole standards on the individual’s risk of
increased punishment.” Richardson v. Penn. Bd. of Probation and Parole, 423 F.3d 282,

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Robinson’s reliance on Fletcher v. Reilly, 433 F.3d 867 (D.C. Cir. 2006), is1
misplaced. The Court in Fletcher addressed the guidelines for reparole.
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291 (3d Cir. 2005).
Robinson argues that the Parole Commission’s District of Columbia parole
guidelines violate the Ex Post Facto Clause because post-incarceration behavior is not
considered as it was under the parole rules for the District of Columbia at the time of the
commission of his crime in 1995. However, it is clear that Robinson’s post-incarceration1
behavior has been considered. At his hearing in February 2001, the hearing examiner
noted that Robinson had committed one non-drug related infraction and had ordinary
programming achievement. The examiner questioned whether Robinson felt remorse for
his offense. In September 2004, the hearing examiner found Robinson to be deceptive in
his explanation of why he had not paid his fine and noted Robinson’s limited
programming. By 2007, Robinson had completed programs in stress management, anger
management, and a 40 hour drug education program. However, it was noted that
Robinson, who blamed his crime on his drug use, had dropped out of the 500 Hour drug
program. Observing that Robinson made no statement regarding his victim or his crime,
the examiner encouraged him to take a program addressing victim impact. Thus,
Robinson’s post-incarceration behavior has been taken into account; however, it has not
always been a positive factor. Also considered at all of his hearings was the seriousness
of Robinson’s crime: he stabbed his girlfriend multiple times in her neck, abdomen, and

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chest while she was sleeping and told her he was going to kill her.
Robinson has not shown that any change in the guidelines created a significant risk
of increasing his punishment. Accordingly, we will deny Robinson a certificate of
appealability.

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