Opinion
Civil Action No. 04-1873.
September 29, 2004
REPORT AND RECOMMENDATION
Before the court is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Brett Dunston ("Petitioner"), a state prisoner currently incarcerated at the State Correctional Institution ("SCI") Retreat in Hunlock Creek, Pennsylvania. For the reasons that follow, I recommend that the petition be denied.
I. FACTS AND PROCEDURAL HISTORY:
On December 15, 1992, Petitioner was convicted by a jury in the Court of Common Pleas, Philadelphia, Pennsylvania of criminal conspiracy to commit homicide. On August 9, 1993, Petitioner was sentenced to five (5) to ten (10) years of imprisonment. The Pennsylvania Department of Corrections calculated Petitioner's sentence to have a minimum expiration date of October 7, 2002, and a maximum expiration date of October 7, 2007. See App. to Resp't Answer, at 1-2.
Petitioner was convicted of criminal conspiracy while on parole for a previous sentence for murder in the third degree and possession of instruments of crime, and was sentenced to 12½ to 25 years of imprisonment. Therefore, Petitioner was recommitted as a convicted parole violator, effective November 4, 1993. Because Petitioner had to serve more time on his previous sentence, Petitioner's sentence for criminal conspiracy was not effective until October 7, 1997. Because Petitioner was re-paroled on his previous sentence on August 11, 1998, the instant petition only addresses Petitioner's parole consideration for the criminal conspiracy conviction.
Petitioner has been reviewed for parole by the Pennsylvania Board of Probation and Parole ("The Board") on two (2) occasions. The Board refused to grant him parole following each review.See Id. at 18-19. In its most recent determination, on August 7, 2003, the Board held that "[Petitioner's] best interests do not justify or require [Petitioner] being paroled/reparoled; and, the interests of the Commonwealth will be injured if [Petitioner was] paroled/reparoled." See Id. at 19. In support thereof, the Board gave the following reasons for its decision:
Petitioner appealed this decision to the Board, which was denied on November 6, 2003. See Ptr's Brief at 2.
[Petitioner's] version of the nature and circumstances of the offense(s) committed. [Petitioner's] refusal to accept responsibility for the offense(s) committed. The recommendation made by the prosecuting attorney. [Petitioner's] prior history of supervision failure(s).Id. The Board also explained that at Petitioner's next interview, it would review Petitioner's file and consider "whether [Petitioner has] maintained a favorable recommendation for parole from the Department of Corrections, whether [Petitioner has] received/maintained a clear conduct record and completed the Department of Corrections' prescriptive program(s)." In addition, the Board explained that Petitioner's supervision history and failure to accept responsibility for his continued violent criminal behavior indicated that Petitioner is "not a suitable candidate for parole at the present time." Id. at 19-20.
On February 6, 2004, Petitioner filed a petition for review in the Pennsylvania Commonwealth Court, alleging that the Board improperly: (1) violated Petitioner's due process rights; and (2) violated the ex post facto clause. See App. to Resp't Answer, at 31-41. Respondent filed preliminary objections, which were sustained by the Commonwealth Court on March 29, 2004, on the grounds that the courts have rejected Petitioner's claim that he is entitled to be considered for parole under the standards in effect prior to the 1996 amendment to the Parole Act. Dunston v. Pa. Bd. of Probation and Parole, No. 0815 M.D. 2003 (Commw. Ct. March 29, 2003) (citing Finnegan v. Pa. Bd. of Prob. Parole, ___ Pa. ___, 838 A.2d 684 (2003); Winklespecht v. Pa. Bd. of Prob. Parole, 571 Pa. 685, 813 A.2d 688 (2002); Reynolds v. Pa. Bd. of Prob. Parole, 809 A.2d 426 (Pa.Cmwlth. 2002);Byrd v. Pa. Bd. of Prob. Parole, 826 A.2d 65 (Pa.Cmwlth. 2003); Evans v. Pa. Bd. of Prob. Parole, 820 A.2d 904 (Pa.Cmwlth. 2003)).
On April 30, 2004, Petitioner filed the instant petition for writ of habeas corpus claiming that the Board improperly used the December 1996 Parole Policy changes in considering his parole, because (1) The Board violated the ex post facto clause of the United States Constitution; and (2) The Board retaliated against Petitioner for exercising his constitutional rights in violation of the Fourteenth Amendment Due Process Clause. Respondents have filed an answer to the petition alleging that Petitioner's claims are unexhausted, unauthorized pursuant to 28 U.S.C. § 2244(b)(3), and without merit.
Petitioner originally filed a Designation Form and memorandum of law on April 30, 2004. On May 7, 2004, the Honorable Franklin S. Van Antwerpen issued an Order stating that it appeared "that Petitioner has filed a petition in this court for Habeas Corpus relief under 28 U.S.C. § 2254. . . ." Petitioner was furnished with a form for filing a petition pursuant to 28 U.S.C. § 2254 and was ordered to complete the form and return it to the Clerk of Court within thirty (30) days, with either a completed in forma pauperis application or a check for five (5) dollars. Although Petitioner filed his revised petition and memorandum of law on June 2, 2004, along with a check for five (5) dollars, I construe his petition as having been filed on April 30, 2004.
Petitioner's due process claim refers to an appeal of a November 4, 1993 Board decision. After a revocation of parole hearing, Petitioner was ordered to serve 120 months as a convicted parole violator. However, "after a lengthy appeal, on November 17, 1995, the Commonwealth Court of Pennsylvania remanded [P]etitioner's case back to the Board for a re-hearing, ordering the Board to recomputate [sic] [P]etitioner's back-time consistent with their opinion." See Ptr's Brief at 3-5. After the re-hearing, the Board ordered Petitioner to serve 60 months.
Respondents argue that the instant petition is an unauthorized successive petition, pursuant to 28 U.S.C. § 2244(b)(3), because Petitioner filed two (2) previous habeas petitions based on his criminal conspiracy conviction. See Resp't Answer at 3, 5. However, the Court finds that this habeas petition is not second or successive because Petitioner is challenging a parole denial, and not the underlying conviction.
On September 28, 2004, Petitioner filed a traverse to Respondents' answer.
II. APPLICABLE LAW
A. Exhaustion
A federal court should not entertain a petition for writ of habeas corpus unless the petitioner has first satisfied the exhaustion requirement of 28 U.S.C. § 2254(b)(1), which provides in relevant part that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A). The exhaustion requirement demands that a petitioner "fairly present" each claim in his petition to each level of the state courts, including the highest state court empowered to consider it. See 28 U.S.C. § 2254(c) ("An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented"); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). In order for a claim "to have been `fairly presented' to the state courts, . . . it must be the substantial equivalent of that presented to the state courts. In addition, the state courts must have available to it the same method of legal analysis as that to be employed in federal court." Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000); see also Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) ("The exhaustion requirement ensures that state courts have the first opportunity to review convictions and preserves the role of state courts in protecting federally guaranteed rights"). The habeas petitioner bears the burden of showing that his or her claims have been "fairly presented" to the state courts, and that the habeas claims are the "substantial equivalent" of those presented to the state courts. Santana v. Fenton, 685 F.2d 71, 74 (3d Cir. 1982),cert. denied, 459 U.S. 1115 (1983).
The exhaustion requirement may be excused if it would be futile for the petitioner to seek relief in the state court system, or if the particular circumstances of the case render the state process ineffective to protect the petitioner's rights. 28 U.S.C. § 2254(b)(1)(B); see also Szuchon v. Lehman, 273 F.3d 299, 323 n. 14 (3d Cir. 2001) ("Exhaustion will be excused as `futile' if `the state court would refuse on procedural grounds to hear the merits of the claims'") (quoting Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996)); Werts, 228 F.3d at 192 (same).
The Third Circuit held that a return to state court is futile when:
the state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, where the state provides no means of seeking the relief sought, or where the state courts have failed to alleviate obstacles to state review presented by circumstances such as the petitioner's pro se status, poor handwriting and illiteracy.Whitney v. Horn, 280 F.3d 240, 250 (3rd Cir. 2002) (citing Lines v. Larkins, 208 F.3d ___, 153 (3d Cir. 2000)).
Petitioner argues that because he is not disputing the parole decision, but rather the criteria used to make the decision, exhaustion of state remedies is not necessary for both of his claims. See Ptr's Brief at 10. The Third Circuit has held that state remedies are deemed exhausted if petitioner is challenging only the discretionary action of the Board, a matter generally not subject to review by the courts of Pennsylvania. Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001). Therefore, this Court deems Petitioner's due process claim to be challenging the discretionary action of the Board and is deemed exhausted. However, where a challenge is based on the board's application of new statutory requirements, an ex post facto challenge may be brought in the Commonwealth Court, and not deemed exhausted.Coady v. Vaughn, 770 A.2d 287, 290 (2001). In the instant case, Petitioner did not appeal the Commonwealth Court's decision and, therefore, his ex post facto claim is unexhausted.
Petitioner is most likely barred from procedural and substantive relief in state court, and dismissal of this Petition for the purpose of exhausting his claim would be futile. As a result, Petitioner's claims are procedurally defaulted. Coleman v. Thompson, 501 U.S. 722, 735 (1991); see also Murphy v. Bd. of Prob. Parole, No. 04-2064, 2004 WL 2040502, at *2 (E.D. Pa. Sept. 13, 2004); Fripp v. Superintendent Meyers, No. 03-4942, 2004 WL 1699071, at *5 (E.D. Pa. July 28, 2004).
Where a petitioner fails to comply with state procedural rules and is barred from litigating a particular constitutional claim in state court, the claim may nevertheless be considered on federal habeas if the petitioner "demonstrate[s] cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate[s] that failure to consider the claims will result in a fundamental miscarriage of justice."Coleman, 501 U.S. at 750; see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) ("We . . . require a prisoner to demonstrate cause for his state-court default of any federal claim, and prejudice therefrom, before the federal habeas court will consider the merits of that claim") (emphasis in original). Also, a petitioner may raise a claim in federal habeas proceedings if the state has waived or declined to rely on the procedural default. See Hull v. Kyler, 190 F.3d 88, 97 (3d Cir. 1999) (citations omitted). The issue of cause "ordinarily turn[s] on whether the prisoner can show that some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). Prejudice means that the errors at trial "worked to [petitioner's] actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Id. at 494; Werts, 222 F.3d at 193. The petitioner bears the burden of establishing cause and prejudice. Coleman, 501 U.S. at 749-50.
In order to satisfy the "fundamental miscarriage of justice" exception, the Supreme Court requires the petitioner to show that a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Schlup v. Delo, 513 U.S. 298, 326-327 (1995) (citing Murray, 477 U.S. at 496);Werts, 228 F.3d at 193. To satisfy the "actual innocence" standard, a petitioner must show that, in light of new evidence, it is more likely than not that no reasonable juror would have found him guilty beyond a reasonable doubt. Id.
Petitioner has provided no support that objective factors, external to the defense, prevented a timely appeal of the dismissal of his petition for review. Therefore, this petition could be dismissed on procedural grounds. We may, however, deny a habeas claim on the merits even where the petitioner has failed to satisfy exhaustion. See U.S.C. § 2254(b)(2). An examination of the underlying interests of the state court system, as well as the interests of Petitioner himself, supports bypassing the exhaustion requirement. As a result, I will address the merits of the claims.
Exhaustion is a rule of comity, rather than a jurisdictional requirement. Granberry v. Greer, 481 U.S. 129, 131 (1987). In Granberry, the Supreme Court adopted a flexible approach in deciding whether to dismiss a habeas petition with an unexhausted claim. The Court directed the court of appeals to "determine whether the interests of comity and federalism [would] be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of petitioner's claim."Granberry, 481 U.S. at 134. When it is clear that a habeas petitioner raises no claim for which there is relief in a federal court, the interests of state courts and federal courts are well served, even if the claims are not exhausted, if the district court denies the petition. Id. at 135. The AEDPA codified the holding in Granberry in 28 U.S.C. § 2254(b)(2) by conferring upon the district court the authority to deny a habeas petition on the merits despite the petitioner's failure to exhaust state remedies. Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir. 1997) (citing Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.),cert. denied, ___ U.S. ___, 118 S.Ct. 126, 139 L.Ed.2d 77 (1997)). When § 2254(b)(2) is read in conjunction withGranberry, the Third Circuit has determined that the appropriate test to apply to a petition is whether "it is perfectly clear that the applicant does not raise even a colorable federal claim." Lambert, 134 F.3d at 515 (citingGranberry, 481 U.S. at 135); see also Burkett v. Love, 89 F.3d 135, 138 (3d Cir. 1996); Lindeman v. Pa. Bd. of Prob. Parole, 1999 WL 1240958, at *2 (E.D. Pa. Dec. 17, 1999); Smith v. Larkins, 1999 WL 959551, at *2-3 (E.D. PA. Oct. 20, 1999);George v. Vaughn, 1998 WL 188847, at *2 (E.D. PA. April 21, 1998).
B. Applicable Law for Claims Addressed on the Merits
The Antiterrorism and Effective Death Penalty Act ("AEDPA"), which became effective on April 24, 1996, amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. Werts, 228 F.3d at 195. The AEDPA increases the deference federal courts must give to the factual findings and legal determinations of the state courts. Id. at 196 (citing Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996)). Pursuant to 28 U.S.C. § 2254(d), as amended by the AEDPA, a petition for habeas corpus may only be granted if (1) the state court's adjudication of the claim resulted in a decision contrary to, or involved an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of United States;" or if (2) the adjudication resulted in a decision that was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). Factual issues determined by a state court are presumed to be correct and the petitioner bears the burden of rebutting this presumption by clear and convincing evidence.Werts, 228 F.3d at 196 (citing 28 U.S.C. § 2254(e)(1)).
The Supreme Court expounded upon this language in Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the Court explained that "[u]nder the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Hameen v. State of Del., 212 F.3d 226, 235 (3d Cir. 2000) (citing Williams, 529 U.S. at 389-390). The Court inWilliams further stated that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. The "unreasonable application" inquiry requires the habeas court to "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. (citingWilliams, 529 U.S. at 388-389). "In further delineating the `unreasonable application of' component, the Supreme Court stressed that an unreasonable application of federal law is different from an incorrect application of such law and a federal habeas court may not grant relief unless that court determines that a state court's incorrect or erroneous application of clearly established federal law was also unreasonable." Werts, 228 F.3d at 196 (citing Williams, 529 U.S. at 389).
III. DISCUSSION:
It is well established that under Pennsylvania law, a prisoner's sentence is his maximum sentence, not his minimum sentence, and that prisoners have no right, constitutional or otherwise, to be released upon the expiration of their minimum sentences. Cohen v. Horn, 1998 WL 834101, at *6 (E.D. Pa. 1998) (citing Brown v. Pa. Bd. of Prob. Parole, 668 A.2d 218, 220 (Pa.Commw. 1995); Reider v. Commonwealth, 514 A.2d 967, 971 (Pa.Commw. 1986); Krantz v. Pa. Bd. of Prob. Parole, 483 A.2d 1044, 1047 (Pa.Commw. 1984)). Notwithstanding, Petitioner contends that his constitutional rights were violated when he was denied parole.
A. Ex Post Facto Clause
Petitioner alleges that the Board violated the Ex Post Facto Clause by applying the amended parole guidelines and 1996 amended parole statute, 61 Pa. Stat. § 331.1, both of which were not in effect at the time he was sentenced. Specifically, Petitioner alleges that by changing the standards, Petitioner was adversely disadvantaged and unconstitutionally "hampered his chances for a potentially favorable parole consideration." See Ptr's Brief at 5-6.
Article 1, § 10 of the Constitution provides that "[n]o State . . . pass any . . . ex post facto law." See U.S. Const. art. I, § 10, cl. 1. The Supreme Court of the United has ruled that a law is ex post facto if it "punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission; or which deprives one charged with crime of any defense available according to law at the time when the act was committed." Hameen, 212 F.3d at 239 (citing Beazell v. Ohio, 269 U.S. 167, 169 (1925)). The Supreme Court has also held, however, that it is improper to interpret the Ex Post Facto Clause to include a reading which states that "any change which `alters the situation of a party to his disadvantage'" is an ex post facto violation. Collins v. Youngblood, 497 U.S. 37, 50 (1990); see, e.g., Dobbert v. Fla., 432 U.S. 282, 293-294 (1977) (upholding a procedural change even though application of the new rule operated to a defendant's disadvantage in the particular case); Hameen, 212 F.3d at 242 (the infringement of a "substantial right" or a showing of a mere "disadvantage" as a result of a new law is insufficient to establish a violation of the Ex Post Facto Clause).
The Third Circuit has held that 61 Pa. Cons. Stat. § 331.1 constitutes a law for ex post facto purposes. Hollowell v. Gillis, 65 Fed.Appx. 809, 814 (3d Cir. 2003). The Court held:
[i]t 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 . . ., a parole decision can be collaterally attacked on constitutional grounds, including the Ex Post Facto Clause.Hollowell, 65 Fed.Appx. at 814-815.
Petitioner attacks amendments made to 61 Pa. Stat. § 331.1, "Public Policy as to Parole." Specifically, he argues that the Board's decisions were based upon changes in parole laws interpreted by the Board as requiring more emphasis on "public safety." See Ptr's Brief at 5.
When Petitioner committed his crime, the relevant 1941 parole statute, 61 Pa. Stat. § 331.1, stated:
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 or sentenced 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 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.
Act 1941, Aug. 6, P.L. 861 § 1 (West 1995).
In 1996, this statute was revised to state:
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.
Amended Dec. 18, 1996, P.L. 1098, No. 164, § 1.
Petitioner bases his argument on Mickens-Thomas v. Vaughn, et al., 321 F.3d 374, (3rd Cir. 2003). In Mickens-Thomas, the Third Circuit held that retroactive application of the 1996 Amendments to the Parole Act's statement of public policy violated the Ex Post Facto Clause. Id. Mickens-Thomas took exception with the emphasis placed on the public safety concerns in the parole process. The Third Circuit agreed that the policy statement resulted in a substantive change to the parole criteria. As described by the Court:
Pre-1996, release upon eligibility for parole was presumed, and any decision to deny parole based on public safety considerations had to be supported by specific reasons, which outweighed those factors favoring release. . . . [P]rior to 1996, the Board's concern for potential risks to public safety could not be the sole or dominant basis for parole denial under the existing Guidelines. Considerations of public safety were already incorporated into its guidelines analysis; the board had to point to "unique" factors as a basis for its rejection of the Guidelines. Moreover, the Board had to weigh all factors, militating for and against parole, and make its decision on the totality of the factors pertinent to parole, and give appropriate weight to the interests of the inmate. Heavy foot application on one factor could not have been the basis for granting or rejecting parole. Policy declarations in and after 1996 demonstrate that Board stance shifted, and that, indeed, post-1996 considerations of public safety became the dominant concern of the Board.Mickens-Thomas, 321 F.3d at 386. Thus, application of the 1996 guidelines in considering Mickens-Thomas' parole resulted in a violation of the Ex Post Facto Clause. Id. at 393.
Petitioner has made an identical argument. However, these cases are different. Foremost, the Board considered Mickens-Thomas' parole prior to December 31, 2002, when the Pennsylvania Supreme Court decided Winklespecht v. Pa. Bd. of Prob. Parole, 571 Pa. 685, 813 A.2d 688 (Pa. 2002). There, the Pennsylvania Supreme Court held that the amendments to 61 P.S. § 331.1 did not change Pennsylvania policy regarding criteria considered for parole eligibility. Id. at 692. As described by the Court:
The rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense. . . . Although the language concerning "protect[ing] the safety of the public" and "assist[ing] in the fair administration of justice" was added to § 331.1 in 1996, these concepts are nothing new to the parole process and have always been underlying concerns. Both versions of § 331.1 leave the decision regarding the grant of parole within the discretion of the Board; the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht's punishment.Id. at 691-692; see also Finegan v. Pa. Bd. of Prob. Parole, 576 Pa. 59, 838 A.2d 684 (Pa. 2003); Hall v. Pa. Bd. of Prob. Parole, No. 40 EAP 2002, 2004 WL 1385937 (Pa. June 22, 2004).
In Mickens-Thomas, the Third Circuit acknowledged the decision in Winklespecht, but explained that the Winklespecht decision came after Mickens-Thomas's parole consideration. Therefore, subsequent to the Winklespecht decision, the Board had the benefit of the Supreme Court's analysis of the 1996 amendments to the Parole Act and knew that, according to the state supreme court, no change had been made to the underlying parole policies. The Third Circuit stated the following:
This decision [Winklespecht], made after the Board's actions on Thomas's parole, came too late to alter the Board's view of the statutory amendment on the outcome of this case. Not having the benefit of the Supreme Court decision, the evidence before us shows that the Board interpreted § 331.1 to mandate foremost the consideration of public safety. The Board mistakenly construed the 1996 statutory change to signify a substantive change in its parole function.Mickens-Thomas, 321 F.3d at 391.
Here, Petitioner was last reviewed for parole on August 7, 2003, well after the Board had the benefit of the Winklespecht decision. Therefore, the Board was aware that it should not "demonstrate a marked weight on public safety concerns." Id. Moreover, review of the Board's August 2003 decision reveals that Petitioner was denied parole not only on the nature of his offense, but also his history of supervision failures, failure to accept responsibility for his violent criminal behavior, and recommendation of the prosecuting attorney. See App. to Resp't Answer, at 19. There is no indication that the Board placed unnecessary weight on public safety. Accordingly, I conclude that the facts of this case do not give rise to a valid violation of the Ex Post Facto Clause claim.
B. Due Process
Petitioner claims that his due process rights were violated when the Board, in retaliation of a successful appeal, applied the amended parole guidelines in determining his parole. See Ptr's Pet. at 10.
Petitioner concedes in his brief that he did not have access to parole discovery, and was "unable to perfect said issue." See Ptr's Brief at 5, n. 3. Although this claim is not very clear, in the interest of judicial economy, I will address the merits of this claim and assume that Petitioner is claiming that the criteria the Board used in determining his parole was improper.
1. Procedural Due Process
Petitioner's interest in a fair and impartial determination of his parole eligibility raises an issue of procedural due process. The Fourteenth Amendment reads in part: "nor shall any state deprive any person of life, liberty, or property without due process of law," U.S. Const. amend. XIV, and protects "the individual against arbitrary action of government." Wolff v. McDonnell, 418 U.S. 539, 558 (1974). In order to establish that the state has violated an individual's right to procedural due process, a petitioner must (1) demonstrate the existence of a protected interest in life, liberty, or property that has been interfered with by the state, Board of Regents v. Roth, 408 U.S. 564, 571 (1972); Goldberg v. Kelly, 397 U.S. 254 (1970); and then, (2) establish that the procedures attendant upon that deprivation were constitutionally insufficient. Hewitt v. Helms, 459 U.S. 460 (1983).
In order to constitute a liberty interest, an individual must have a legitimate claim or entitlement to the subject of the deprivation which rises to more than a unilateral hope, or expectation of it. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 459 (1989). Such an interest may arise from two (2) sources, namely, the Due Process Clause of the United States Constitution, or the laws of the states. Hewitt, 459 U.S. at 466. The United States Constitution does not explicitly create a legitimate claim of entitlement to parole, nor has such an entitlement been implicitly read into the Constitution. Rauso v. Vaughn, 79 F.Supp.2d 550, 551 (E.D. Pa. 2000); Board of Pardons v. Allen, 482 U.S. 369, 373 (1987); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979) (holding that there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence and distinguishing parole revocation which implicates a liberty interest, from parole release decisions which do not). Furthermore, both the federal and Pennsylvania state courts have held that parole is not a constitutionally protected liberty interest under Pennsylvania law. Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996); Rauso, 79 F.Supp.2d at 551; Rogers v. Pa. Bd. of Prob. Parole, 724 A.2d 319, 323 (Pa. 1999). Because Petitioner cannot establish that there is a liberty interest in parole, we find that he has not demonstrated a violation of a protected constitutional right which would allow him to present a procedural due process claim. Accordingly, the Board's written decision cannot violate any federal constitutional right to procedural due process.
Even if Pennsylvania's parole statute created a "protectible expectation of parole," no more procedural due process is constitutionally required than giving Petitioner the opportunity to be heard, and when parole is denied, informing the inmate in what respect he or she falls short of qualifying for parole.Greenholtz, 442 U.S. at 16. In the present case, Petitioner was given an opportunity to be heard prior to the Board's decision. He was also provided with a statement of reasons as to why he has fallen short of qualifying for parole and what corrective steps he will need to take in order to put himself in a better position for parole consideration.
I find that the reasons provided by the Board in support of the denial of Petitioner's parole clearly identified the basis for its decision and were statutorily and constitutionally adequate.See 61 Pa. Cons. Stat. Ann. § 331.22 (requiring brief statement of reasons for Board's action). Accordingly, the Board's written decision not to release Petitioner on parole did not constitute a violation of Petitioner's procedural due process rights.
2. Substantive Due Process
To the extent that Petitioner argues that his substantive due process rights were violated, I find such a claim to be meritless. The Third Circuit has recognized a cause of action under substantive due process that is distinct from procedural due process. Burkett v. Love, 89 F.3d 135, 139-40 (3d Cir. 1996); Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). Even if no liberty interests or rights exist to a government benefit, there are certain reasons upon which the government may not rely in exercising its discretion. Perry v. Sindermann, 408 U.S. 593, 597 (1972). Under substantive due process, as the term has been construed by the courts, a state may not deny parole on constitutionally impermissible grounds, such as race or in retaliation for exercising constitutional rights. Burkett, 89 F.3d at 140. Similarly, the Board may not base a parole decision on factors bearing no rational relationship to the interests of the Commonwealth. Block, 631 F.2d at 237.
Essentially, the duty of the Board when reviewing applications for parole is to act in a manner that avoids making the parole process arbitrary, even though the granting of parole is a discretionary matter under § 331.21 of the Pennsylvania Parole Act. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). In other words, the mere presence of a large measure of discretion in the system does not alter the "fundamental due process limitation against capricious decision making." Block, 631 F.2d at 236. As such, when a court is faced with the review of a decision of a parole board, it must "insure that the Board followed criteria appropriate, rational and consistent with the statute and that its decision is not arbitrary and capricious nor based on impermissible considerations." Id. at 236 (citing Zannino v. Arnold, 531 F.2d 687, 690 (3d Cir. 1976)).
Pennsylvania law grants the Board vast discretion to refuse or deny parole. State law authorizes the Board:
to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to the board . . . whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby.
Under Pennsylvania law, the Board's consideration encompasses many different factors, all relevant to the discretionary task of granting or denying parole. See 61 Pa. Stat. § 331.19. Specifically:
It shall be the duty of the board . . . to consider the nature and circumstances of the offense committed . . . the general character and background of the prisoner . . . The board shall further cause the conduct of the person while in prison and his physical, mental and behavior condition and history . . . to be reported and investigated.
61 Pa. Stat. § 331.19 ("Investigation of circumstances of offenses and character and history of prisoner; matters considered in granting parole"). Section 22 of the Pennsylvania Board of Parole Act ("Act") also provides that "whenever an application for parole is refused by the board, a brief statement of the reasons for the board's action shall be filed of record in the offices of the board . . ." 61 Pa. Stat. § 331.22.
I find that the Board's parole decision comports with Pennsylvania's statutory requirements as well as the United States Constitution. As previously stated, the Board determined that Petitioner was ineligible for parole, provided Petitioner with the reasons for the denial and indicated what factors the Board would consider at Petitioner's next parole interview. See App. to Resp't Answer, at 19. Certainly, nothing in the Board's decision intimates that the Board relied on any unconstitutional factors when it denied Petitioner's application for parole, nor does Petitioner allege any unconstitutional factors. See Lindeman v. Pa. Bd. of Prob. Parole, 1999 WL 1240958, at *3 (E.D. Pa. 1999). Moreover, Petitioner fails to provide a factual basis to support his conclusory allegation that the Board wrongfully retaliated against him. He makes no allegations concerning if and what they knew about his parole process challenges, when they knew it, or how it affected any decisions they made. Thus, he has not even pled a chronology of events from which a plausible inference of retaliation may be inferred. See Zettlemoyer v. Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991) (bald assertions and conclusory allegations do not provide sufficient ground for habeas relief). I find that Petitioner has failed to demonstrate any evidence that the Board has retaliated, and the facts of this case do not give rise to a valid substantive due process claim. Block, 631 F.2d at 236.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of September, 2004, it is RESPECTFULLY RECOMMENDED that the petition for Writ of Habeas Corpus be DENIED. There is no probable cause for issuing a certificate of appealability.
ORDER
AND NOW, this ____ day of ____, upon careful and independent consideration of the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, and any objections thereto, IT IS ORDERED that:1. The Report and Recommendation is APPROVED and ADOPTED.
2. The Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 is DENIED.
3. There is no basis for the issuance of a certificate of appealability.