Opinion
Civil Action 2: 23-cv-0167
09-11-2023
DERRICK GIBSON, Petitioner, v. PENNSYLVANIA BOARD OF PAROLE AND PROBATION, and SUPERINTENDENT LEE J. ESTOCK, Respondents.
Robert J. Colville United States District Judge
This matter has been referred to the undersigned United States Magistrate Judge for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b).
Cynthia Reed Eddy United States Magistrate Judge
I. RECOMMENDATION
It is respectfully recommended that the Petition for Writ of Habeas Corpus (ECF No. 3) filed by Petitioner, Derrick Gibson, be denied and that a certificate of appealability be denied.
II. REPORT
Petitioner, Derrick Gibson (“Gibson” or “Petitioner”), is a Pennsylvania prisoner at SCI Pine Grove, who was denied parole most recently by the Pennsylvania Parole Board, formerly the Board of Probation and Parole, on January 18, 2023. He filed this petition for writ of habeas corpus two weeks later alleging that the denial of parole violates his constitutional rights. For the reasons that follow, it is recommended that the Petition be denied.
A. Relevant Factual and Procedural Background
In April 2010, Gibson appeared before the Court of Common Pleas of Philadelphia County and pleaded guilty to attempted murder in the first degree and possession of an instrument of crime. The state trial court sentenced him to an aggregate term of 10 to 20 years imprisonment. His minimum controlling sentence date was August 1, 2017, and his maximum controlling sentence date is August 1, 2027.
In September 2020, Gibson appeared before the Court of Common Pleas of Luzerne County and pleaded guilty to one count of aggravated harassment by prisoner. The state trial court sentenced him to a sentence of a minimum of 24 months to a maximum of 48 months. His minimum controlling sentence date was September 16, 2022, and his maximum controlling sentence date is August 1, 2027.
In the Notice of Board Decision dated January 18, 2023, the Board explained:
FOLLOWING AN INTERVIEW WITH YOU AND A REVIEW OF YOUR FILE, AND HAVING CONSIDERED ALL MATTERS REQUIRED PURSUANT TO THE PRISONS AND PAROLE CODE, THE PAROLE BOARD, IN THE EXERCISE OF ITS DISCRETION, HAS DETERMINED AT THIS TIME THAT: YOU ARE DENIED PAROLE / REPAROLE. THE REASONS FOR THE BOARD'S DECISION INCLUDE THE FOLLOWING:
YOUR NEED TO PARTICIPATE IN AND COMPLETE ADDITIONAL INSTITUTIONAL PROGRAMS.
YOUR INSTITUTIONAL BEHAVIOR, INCLUDING REPORTED MISCONDUCTS.
YOUR RISK AND NEEDS ASSESSMENET INDICATING YOUR LEVEL OF RISK TO THE COMMUNITY.
THE NEGATIVE RECOMMENDATION MADE BY THE DEPARTMENT OF CORRECTIONS.
REPORTS, EVALUATIONS AND ASSESSMENTS/LEVEL OF RISK INDICTATES YOUR RISK TO THE COMMUNITY.(ECF No. 3-1, at 2). The Board also advised Petitioner that at his next review for parole it would consider whether he had successfully participated in/successfully completed treatment for programs for substance and violence prevention. (Id.)
Following this denial, Gibson commenced the present action. This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254. Under this statute, habeas relief is only available on the grounds that Gibson is in custody in violation of his federal constitutional rights. 28 U.S.C. § 2254(a).
Respondents filed an Answer, in which they contend that Petitioner has failed to exhaust state court remedies and that Petitioner's claims have no merit. (ECF No. 6). Petitioner has filed a Reply. (ECF No. 8). The matter is ripe for review.
B. Discussion
1. The Exhaustion Requirement
The federal habeas statute typically “requires that prisoners exhaust their claims in state court before seeking relief in federal courts.” Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004) (citing 28 U.S.C. § 2254(b)(1)(A)). In Defoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005), the United States Court of Appeals for the Third Circuit held that, aside from litigating an ex post facto claim, Pennsylvania law does not provide a mechanism by which a prisoner can challenge a parole denial. See also Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir.), cert. denied, 568 U.S. 893 (2012) (“[T]he State argues that Defoy no longer controls because Commonwealth Courts since that decision have adjudicated mandamus actions involving parole denials by the Board and have considered constitutional claims other than ex post facto claims . . . . [T]o the extent there as been any shift in Pennsylvania law, we cannot comfortably say that it is clear enough to alter our decision in Defoy.”)
The continuing validity of Defoy has been called into question, see, e.g., Bradley v. Wingard, et al., No. 3:15-cv-235, 2017 11476608, at *2 (W.D. Pa. Oct. 12, 2017), report and recommendation adopted, 2018 WL 10150909 (W.D. Pa. Sept. 5, 2018). In their Answer, Respondents point out that the Board routinely defends challenges to parole refusals filed by Pennsylvania prisoners in the Commonwealth Court. As such, Respondents assert that Petitioner's claims should be denied because he failed to exhaust them. (ECF No. 6, at pp. 4-5).
However, because a federal court “may bypass the exhaustion issue altogether should [it] decide that the petitioner's habeas claim fails on the merits[,]” and since Petitioner's claims have no merit and it is more efficient for the Court to deny them for that reason, the Court “need not address the issue of exhaustion” with respect to his claims. Roman, 675 F.3d at 209 (citing, inter alia, 28 U.S.C. § 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.”)).
The Court will now turn to the merits of Petitioner's claims.
2. The Petitioner's Claims Have No Merit
The Fourteenth Amendment provides that the State may not “deprive any person of life, liberty, or property without due process of law.” U.S. Const. amend. XIV. An examination of a procedural due process claim under the Fourteenth Amendment proceeds in two steps. See Board of Regents of State Colleges v. Roth, 408 U.S. 564, 571 (1972). First, the court must determine whether there exists a liberty or property interest which has been interfered with by the state. Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (citing Board of Regents, 408 U.S. at 571). Second, and if and only if a petitioner establishes the existence of a protected interest, the court must examine whether the procedures attendant upon that deprivation were constitutionally sufficient. Id. (citing Hewitt v. Helms, 459 U.S. 460, 472 (1983)). Gibson cannot meet either criterion because it is well-settled that “[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.” Greenholtz v. Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Accordingly, there is no right to parole based in federal law; therefore, if Gibson has a protected liberty interest in the grant of parole, it must derive from the Pennsylvania parole statute. Newman v. Beard, 617 F.3d 775, 783 (3d Cir. 2010).
However, Gibson fares no better relying on the relevant Pennsylvania statute, 61 Pa.C.S.A. § 6137, as the statute does not create a mandatory expectation of parole but, rather, it has been determined that release on parole is a matter of grace. Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319 (Pa. 1999); see also Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996) (stating that parole is not a constitutionally protected liberty interest under Pennsylvania law). The Pennsylvania Probation and Parole Act does not grant Pennsylvania state prisoners any constitutionally-protected liberty interest in being released on parole or reparole prior to the expiration of their maximum terms. Nothing in the Pennsylvania Parole Act (or any other provision of Pennsylvania law) requires the Board to release a prisoner on parole prior to the expiration of his maximum term. The Board has complete discretion to determine whether an inmate is sufficiently rehabilitated such that he will be permitted to serve the remainder of his sentence outside the prison walls on parole. Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282, 285 (3d Cir. 2005). Although a prisoner is eligible for parole at the end of his minimum term, nothing in Pennsylvania law or the United States Constitution requires a prisoner to be released at such time.
Despite Pennsylvania's use of the terms “minimum sentence” and “maximum sentence,” an inmate's legal sentence is his maximum term. Commonwealth v. Daniel, 243 A.2d 400, 403 (Pa. 1968); Krantz v. Pennsylvania Bd. of Probation & Parole, 483 A.2d 1044, 1047 (Pa. Commw. 1984). The significance of the minimum sentence is that it serves the limited purpose of notifying the Pennsylvania Parole Board (in cases under its jurisdiction when an inmate has been sentenced to an aggregate sentence of two years or more) of the initial date when an inmate is eligible for parole. Commonwealth v. Lee, 876 A.2d 408, 412 (Pa. Super. 2005).
The existence of a state parole system alone does not create a constitutionally-protected interest. Board of Pardons v. Allen, 482 U.S. 369, 373 (1987).
If a petitioner contends that the Board considered improper factors in denying parole, the appropriate relief, if petitioner were to establish that the Board did so, would be injunctive relief ordering the Board to conduct a new hearing without the improper factors, not a writ of habeas corpus releasing the petitioner from custody. See, e.g., Mickens-Thomas v. Vaughn, 321 F.3d 374, 393, (3d Cir. 2003). (“[W]e are exceedingly reluctant to usurp the Board's function and, except in our review capacity, substitute our own judgment for that of the parole Board.”).
Because Gibson cannot establish that he possesses a liberty interest in parole, 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 decision does not violate his right to procedural due process.
Turning to a substantive due process analysis, the United States Court of Appeals for the Third Circuit has held that “even if a state statute does not give rise to a liberty interest in parole release under Greenholtz, once a state institutes a parole system all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons.” Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). See also Newman, 617 F.3d at 782. The United States Supreme Court also has held that “although a person may have no ‘right' to a valuable government benefit, and may be denied it for any number of reasons, ‘there are some reasons upon which the government may not rely.' ” Burkett, 89 F.3d at 139 (citing 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. Id. at 140. In addition, a state may not base a parole decision on factors bearing no rational relationship to the interests of the Commonwealth. Block, 631 F.2d at 237.
Importantly, the Third Circuit Court of Appeals has stressed that a substantive due process claim based upon alleged arbitrary and capricious action is not easily mounted. Hunterson v. DiSabato, 308 F.3d 236, 246-47 (3d Cir. 2002). That is because the relevant level of arbitrariness required in order to find a substantive due process violation involves not merely action that is unreasonable, but rather, something more egregious, which our appellate court has termed at times “conscience shocking.” Hunterson, 308 F.3d at 246-47. It has made clear that “only the most egregious conduct will be considered arbitrary in the constitutional sense.” Id. at 247-48. See also Newman, 617 F.3d at 782 (“Conduct can violate substantive due process if it shocks the conscience, which encompasses only the most egregious official conduct.”) (internal quotations and citations omitted). It also has stated: “[F]ederal courts are not authorized to second-guess parole boards and the requirements of substantive due process are met if there is some basis for the challenged decision.” Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001); Newman, 617 F.3d at 782 (“The conduct must be intended to injure in some way unjustifiable by any government interest [.]”) (internal quotations and citations omitted).
Gibson argues that the Board's January 2023 denial of parole was an arbitrary and capricious decision by the Board. However, the record clearly reflects that the denial of parole was made after an interview, a review of his file, and on relevant facts, none of which individually or collectively can be said to be egregious. None of the cited reasons are based on constitutionally impermissible grounds, but are instead proper statutory grounds under the Pennsylvania Prisons and Parole Code. See 61 Pa.C.S.A. § 6135(a). Although Gibson disagrees with the Board's assessment of him, he has failed to direct the Court to any factor relied upon by the Board that could be described as “conscience shocking.”
Overturning a parole board's discretionary judgment, even if it is wrong, is beyond this Court's power. See 28 U.S.C. § 2241(c)(3) (granting the power to issue writs only for violations of the Constitution, or federal laws or treaties); Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001). This Court should not second guess the Board's determination especially given that there was some basis for the Board's adverse decision. Accordingly, there can be no finding that Gibson is in custody in violation of his substantive due process rights.
Gibson also baldly states that his rights under the First and Eighth Amendments have been violated. However, he provides no argument to support this vague statement, and nothing in the record would support such an argument.
3. Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a certificate of appealability for appellate review of a district court's disposition of a habeas petition. It provides that “[a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” Where the district court has rejected a constitutional claim on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, the Court finds that reasonable jurists would not debate that Gibson has failed to make a substantial showing of the denial of a constitutional right. Accordingly, it is recommended that a certificate of appealability be denied.
III. CONCLUSION
For all these reasons, it is recommended that the petition for writ of habeas corpus be denied and that a certificate of appealability be denied.
Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Petitioner, because he is a non-electronically registered party, must file objections, if any, to this Report and Recommendation by October 2, 2023, and Respondents, because they are electronically registered parties, must file objections, if any, by September 28, 2023. The parties are cautioned that failure to file Objections within this time frame “will waive the right to appeal.” Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011)(quoting Siers v. Morrash, 700 F.2d 13, 116 (3d Cir. 1983). See also EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir. 2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).