Opinion
Civil Action 19-218J
12-20-2022
BRIAN LEWIS NYE, Petitioner, v. JOSH SHAPIRO, Attorney General of PA', LEO DUNN, Chair of the Pennsylvania Board of Probation and Parole', and BARRY SMITH, Superintendent of SCI Houtzdale, Respondents.
Mark R. Homak Chief District Judge
REPORT AND RECOMMENDATION
Re: ECF No. 1
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the “Petition for Writ of Habeas Corpus. Pursuant to; 28 U.S.C. §§ 2241-2254 [sic]” (the “Petition”), ECF No. 1, be denied. It also is recommended that a certificate of appealability be denied.
II. REPORT
Petitioner Brian Lewis Nye (“Petitioner”) is a state prisoner currently incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”). Petitioner is serving a sentence of imprisonment for his April 10, 2012 convictions in the Court of Common Pleas of Susquehanna County, Pennsylvania of Aggravated Indecent Assault by Forceable Compulsion, in violation of 18 Pa. C.S.A. § 3125(a)(2); Rape by Forcible Compulsion, in violation of 18 Pa. C.S.A. § 3121(a)(1); and Involuntary Deviate Sexual Intercourse with a Person Less than 16 years of Age, in violation of 18 Pa. C.S.A. § 3123(a)(7). ECF No. 5-1 at 5; see also Com v. Nye, Docket No. CP-58-CR-312-2010 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet7docketNu mber=CP-58-CR-0000312-2010&dnh=xeCWUYIqkYTvlzL4j7KC4A%3D%3D (last visited December 20, 2022)).
This is Petitioner's second conviction for a sex crime - the first was on December 20, 2007, in the Court of Common Pleas of Susquehanna County, at Docket No. CP-58-CR-368-2007. In that case, Petitioner initially was sentenced to a term of probation of 24 months' probation for a conviction of Indecent Assault without Consent of Other, in violation of 18 Pa. C.S.A. § 3126(a)(1). He was resentenced on March 10, 2011 to a period of confinement of 1-2 years as a result of violating the conditions of that probation. ECF No. 5-1 at 5; see also Docket, Com v. Nye, Docket No. CP-58-CR-368-2007 (available at https://ujsportal.pacourts.us/Report/CpDocketSheet?docketNumber=CP-58-CR-0000368-2007&dnh=%2FlAletXHN5t0nWRzy%2B4Z9g%3D%3D (last December 20, 2022)).
Petitioner's sentence for his April 10, 2017 conviction at Docket No. CP-58-CR-312-2010 is consecutive to his March 10, 2011 resentence at Docket No. CP-58-CR-368-2007. The record indicates that Petitioner became eligible for parole on January 19, 2017. The maximum date of his aggregate sentence is July 19, 2025. ECF No. 5-1 at 5 and 7.
The instant federal habeas proceeding was initiated with the receipt of the Petition on December 18, 2019. In the Petition, Petitioner argues that the decision of the Pennsylvania Board of Probation and Parole (the “Board”) to deny him parole was arbitrary and capricious, and not based on evidence, in violation of his right to substantive due process under the Fourteenth Amendment to the Constitution of the United States. ECF No. 1 at 5 and 7.
Respondents answered the Petition on February 4, 2020. ECF No. 5. They argue that Petitioner has no liberty interest in parole, id. at 3, and that the denial of parole had a sufficient basis to satisfy the United States Constitution, id. at 5-6.
Petitioner submitted his Traverse on March 31, 2020, in which he argues that the reasons given for denial of parole in 2019 varied from the reasons provided for denials in previous years, and that they thus must have been pretextual. ECF No. 8 at 3-4. He filed an Addendum to Habeas Corpus on February 16, 2021, indicating that he was denied parole again at the end of 2020, and making additional arguments that the reasons given for the denial of parole in 2019 were arbitrary and capricious. ECF No. 11 at 2-4.
The Petition is ripe for consideration.
A. The Petition has No Merit.
28 U.S.C. § 2254 permits a federal court to grant a state prisoner the writ of habeas corpus “on the ground that he or she is in custody in violation of the Constitution ... of the United States.” 28 U.S.C. § 2254(a). It is Petitioner's burden to prove that he is entitled to the writ. See, e.g., Vickers v. Sup't Graterford SCI, 858 F.3d 841, 858 (3d Cir. 2017); see also Stanley v. Tice, No-22-cv-l, 2022 WL 1806079, at *1-2 (W.D. Pa. June 2, 2022).
It is well-established that Petitioner has no right to parole under Pennsylvania state law. See, e.g., Hudson v. Pennsylvania Bd. of Prob, and Parole, 204 A.3d 392, 396 (Pa. 2019). Whether or not to grant parole is a decision left to the sole discretion of the Board. 61 Pa. C.S.A. §§ 6135, 6137 and 6139; see also, e.g., Homa v. Pennsylvania Bd. of Prob, and Parole, 192 A.3d 329, 334 (Pa. Commw. Ct. 2018).
In exercising its discretion, the Board must consider factors such as: the nature and circumstances of the offenses Petitioner committed, recommendations made by the trial judge and prosecuting attorney, Petitioner's general character and background, his conduct while in prison, his physical, mental, and behavioral condition, and his complete criminal record. 61 Pa. C.S.A. § 6135(a). Decisions of the Board to grant or refuse parole must be accompanied by a brief statement of reasons underlying the Board's decision. 61 Pa. C.S.A. § 6139(a)(5). Here, the reasons listed by the Board in its October 22, 2019 decision - he., Petitioner's assessed risk to the community, his lack of remorse, and the negative recommendation by the prosecutor - reflect that it considered those factors. ECF No. 5-1 at 19. This is true of all of the decisions of the Board in the record before this Court. Id. at 10-19; ECF No. 11-1 at 6. Petitioner claims, however, that the Board's decision violated his substantive due process rights because it was arbitrary and capricious.
The Fourteenth Amendment's Due Process Clause “contains a substantive component that bars certain arbitrary, wrongful government actions regardless of the fairness of the procedures used to implement them.” Newman v. Beard, 617 F.3d 775, 782 (3d Cir. 2010) (internal quotation and citations omitted); see also Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980) (“Even if a state statute does not give rise to a liberty interest in parole release . . ., 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.”). “Conduct can violate substantive due process if it shocks the conscience, which encompasses only the most egregious official conduct.” Newman, 617 F.3d at 782 (internal quotations and citations omitted); see also Hunterson v. DiSabato, 308 F.3d 236, 248 (3d Cir. 2002) (“when an executive action is at issue, only the most egregious conduct will be considered arbitrary in the constitutional sense.”). “As a general matter, it is governmental conduct intended to injure that is most likely to rise to the conscience-shocking level.” Evans v. Sec'v Pennsylvania Dept, of Corr., 645 F.3d 650, 660 (3d Cir. 2011) (internal citations and quotations omitted).
The United States Court of Appeals for the Third Circuit has explained that it would be arbitrary and capricious for the Board to base its decision on a reason that has no “rational relationship to the purpose of parole [,]” such as the “color of one's eyes, the school one attended, or the style of one's clothing.” Block, 631 F.2d at 236 n.2. It has further held that it “would violate due process if [a parole board] bases a decision on constitutionally impermissible criteria such as race, religion, or the exercise of free speech rights.” Id. at 237; see also Newman, 617 F.3d at 784.
Petitioner has not met his burden of proving that the Board's decision denying him parole was arbitrary and capricious. The Court is not evaluating whether the Board made the correct decision, and it is “not authorized by the due process clause 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).
Although Petitioner may disagree with the Board's assessment of him, he has not demonstrated that the Board relied on anything that can be described as “conscience shocking.” Nor does an independent review of the reasons for the decision articulated by the Board reveal anything that might implicate a constitutionally-impermissible basis for denial. ECF No. 5-1 at 10-19; ECF No. 11-1 at 6. Accordingly, there can be no finding that Petitioner is in custody in violation of his substantive due process rights.
Based on the foregoing, the Court should deny the Petition.
B. Certificate of Appealability
A certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's claims lacked merit. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Petition be denied. It further is recommended that a certificate of appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.