Opinion
1:21-cv-158-SPB-KAP
06-24-2021
ZACHARY THOMAS SPADA, Petitioner, v. THEODORE JOHNSON, Chairman, Pennsylvania Parole Board, Respondent (Pennsylvania Board of Probation and Parole and Barry Smith, Superintendent S.C.I. Houtzdale, nominal respondents)
REPORT AND RECOMMENDATION
Keith A. Pesto,, United States Magistrate Judge
Recommendation
Pursuant to 28 U.S.C.§ 2243 and Rule 4 of the Rules Governing Section 2254 Cases (Habeas Rule 4), the petition for a writ of habeas corpus should be denied without a certificate of appealability. The Clerk shall add counsel for the Pennsylvania Parole Board to the docket for notice purposes only.
Report
A district court has the power and the duty under Rule 4 to examine habeas petitions before service to screen out meritless applications and eliminate the burden on respondents of assembling an unnecessary answer. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.1999), quoting Advisory Committee Notes to Habeas Rule 4. One issue that can be raised sua sponte where the record is clear is a petitioner's failure to exhaust state law remedies. Magouirk v. Phillips, 144 F.3d 348, 357 (5th Cir. 1998).
Petitioner is an inmate at S.C.I. Houtzdale who was denied parole most recently by the Pennsylvania Parole Board, formerly the Board of Probation and Parole, on May 17, 2021. He filed a petition for a writ of habeas corpus two weeks later alleging that the denial of parole violates the Americans with Disabilities Act. There are tag-along claims that the Board's action violated the separation of powers in Pennsylvania (a state law claim over which this court has no jurisdiction) and that he has a liberty interest in being paroled at the expiration of his minimum sentence (a frivolous claim under state law) but the heart of the petition is that because one of the Parole Board's several grounds for denial of parole was “your institutional behavior, including reported misconducts, ” the denial of parole to him is discrimination on the basis of a disability because his misconducts were allegedly caused by his mental illness.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214, April 24, 1996, allows a federal court to issue a writ of habeas corpus to a person challenging a state court criminal conviction and sentence if the petitioner establishes that he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C.§ 2254(a); see Howell v. Superintendent Rockview SCI, 939 F.3d 260, 264 (3d Cir.2019). AEDPA codifies several longstanding limitations on the power to issue a writ of habeas corpus. One is exhaustion of remedies: because state courts have the initial role in considering federal constitutional challenges to state convictions, see Castille v. Peoples, 489 U.S. 346, 349 (1989), the petitioner must first fairly present to the state courts the same legal arguments addressing the same factual context that the petitioner presents to the federal court. See Baldwin v. Reese, 541 U.S. 27, 29-33 (2004); Duncan v. Henry, 513 U.S. 364, 366 (1995) (per curiam). After a petitioner has fairly presented a claim to the state courts and a state court has adjudicated that claim on the merits adversely to the petitioner, to obtain a writ the petitioner must show the federal court that the ruling:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) 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). Under 28 U.S.C.§ 2254(b)(1)(A) and (2), this court can deny a writ of habeas corpus sought on an unexhausted claim that a petitioner's custody is unlawful, but cannot grant a writ of habeas corpus unless the petitioner has exhausted the remedies available for such claims in state court or has shown that exhaustion is excused. Under 28 U.S.C.§ 2254(b)(1)(B), exhaustion is excused when the petitioner has shown:
(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
Petitioner seeks to bypass the state courts (and therefore the deferential standard of review of their decision prescribed by 28 U.S.C.§ 2254(d)(1) and (2)) on the bald assertion, Petition at ¶¶ 28-30, that he has no state court remedies. This is not true:
In Pennsylvania, the Board's grant of parole, see 61 Pa.C.S. § 6137(a), is a matter of discretion and not of right: so long as denial of parole is not for reasons (race, religion, etc.) that are forbidden by the Constitution, the grant or denial of parole is a discretionary matter, not a legal right of the inmate. Under both the current and previous formulations of the Board's role, an inmate has no right to parole under state law, Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319 (Pa. 1999); Reider v. Pennsylvania Board of Probation and Parole, 514 A.2d 967 (Pa.Cmwlth. 1986), or under the Constitution. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12 (1979). Despite Pennsylvania's use of the terms “minimum sentence” and “maximum sentence, ” an inmate's legal sentence is his maximum sentence, Commonwealth v. Daniel, 243 A.2d 400, 403 (Pa. 1968): the minimum sentence in Pennsylvania serves the limited purpose of notifying the Pennsylvania Board of Probation and Parole (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). For a parole-eligible inmate, the Board possesses “complete discretion” over the parole decision. Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282, 285 (3d Cir. 2005).
There are several issues that could be addressed. One is whether the parties have framed the issue properly. The parties treat this petition as requiring an all or nothing decision, but the petitioner's claim is really one that the Board considered improper factors in denying him parole. The appropriate remedy, 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 him 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 functions and, except in our review capacity, substitute our own judgment for that of the parole Board.”)
Second, although more than a decade ago in DeFoy v. McCullough, 393 F.3d 439 (3d Cir.2005) the Court of Appeals found that disappointed parole applicants could proceed straight to federal court for de novo consideration of their claims without any deference due to state court judgments under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because there was no way to raise in Pennsylvania's court system a claim that parole denial was based on an unconstitutional factor, if that ever was true, see Cimaszewski v. Board of Probation & Parole, 868 A.2d 416, 422 (Pa. 2005), it is not now the case. Pennsylvania's appellate review system is clunky because parole decisions are not adjudications under state law and therefore an ordinary appeal of an agency decision to the Commonwealth Court will not lie. Review is obtained by the disappointed inmate filing a petition for a writ of mandamus and the Board responding with a demurrer, but the important point for the exhaustion requirement is that although the burden on the inmate is a high one and the discretionary aspects of a parole decision cannot be reviewed, Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001), the Commonwealth Court does consider constitutional claims on their merits. See Short v. Barkley, No. 438 M.D. 2016, 2017 WL 1337557, at *2 (Pa.Cmwlth. Apr. 12, 2017)(considering but rejecting as insufficient a constitutional claim by Short that he was denied parole on the basis of his race and mental illness.) Bradley v. Wingard, No. 3:15-CV-235-KRG-KAP, 2017 WL 11476608, at *1-2 (W.D. Pa. Oct. 12, 2017), report and recommendation adopted, No. 3:15-CV-235-KRG-KAP, 2018 WL 10150909 (W.D.Pa. Sept. 5, 2018), certificate of appealability denied, No. 18-3196 (3d Cir. March 8, 2019).
As a recent case before Magistrate Judge Dodge of this Court illustrates, the Pennsylvania Parole Board remains hesitant to seek appellate reconsideration of Defoy, even though it asserts it routinely defends challenges to parole refusals in the Commonwealth Court. See Begandy v. Pennsylvania Bd. of Prob. & Parole, No. 2:19-CV-639, 2021 WL 1986415, at *4 (W.D.Pa. May 18, 2021). It is nevertheless indisputable that the Commonwealth Court now considers constitutional challenges to the denial of parole. In addition to Short v. Barkley, supra, see Prince v. Pennsylvania Bd. of Prob. & Parole, No. 425 M.D. 2008, 2009 WL 9102328, at *4 (Pa.Cmwlth. June 16, 2009)(equal protection claim). There is an established path to state court review of claims like petitioner's, and unless the Pennsylvania Parole Board expressly waives exhaustion, petitioner cannot obtain relief without traveling that route.
A more fundamental problem with the petitioner's petition is that, as I pointed out in Bradley v. Wingard, the remedy for petitioner's claim, if proved, would be an order requiring the Parole Board to hold a hearing without consideration of the factors proved to be unconstitutional, not the issuance of a writ. The Parole Board could still decide to deny petitioner parole for any number of reasons that it has already stated, including the negative recommendation by the District Attorney and the petitioner's failure to develop a parole release plan, even if petitioner's challenge to the way the Parole Board allegedly failed to consider his mental illness were successful. Because a finding in petitioner's favor would not grant petitioner parole, alter his sentence, or undo his conviction, a civil rights action under 42 U.S.C. § 1983 and not a habeas petition is the correct method to raise petitioner's claim of disability discrimination. As the Court of Appeals has written on many occasions:
[T]he fact that a civil rights claim is filed by a prisoner rather than by an unincarcerated individual does not turn a § 1983 case or a Bivens action into a habeas petition. This is true even where the complained-of condition of confinement creates, as a secondary effect, the possibility that the plaintiff will serve a longer prison term than that to which he would otherwise have been subject.McGee v. Martinez, 627 F.3d 933, 936 (3d Cir. 2010). See also Cardona v. Bledsoe, 681 F.3d 533, 537 (3d Cir. 2012), citing Leamer v. Fauver, 288 F.3d 532, 543 (3d Cir.2002)(a claim is not properly one for habeas if a favorable decision would not necessarily imply earlier release from custody).
Petitioner is not alone in challenging parole decisions on the grounds that mental illness requires some accommodation, see Crowell v. Massachusetts Parole Bd., 477 Mass. 106, 106, 74 N.E.3d 618, 620 (2017), but he and every other Pennsylvania inmate cannot use habeas corpus to obtain plenary review of Parole Board decisions by alleging the Parole Board's deliberative process is in conflict with the Americans with Disabilities Act or another federal law. Petitioner has filed several civil complaints in this court, and he may have filed this matter as a petition for a writ of habeas corpus because he knows that the filing fee for a civil complaint is greater than that for a habeas petition. But if this were properly a matter for habeas corpus, petitioner would not have carried his burden of demonstrating exhaustion is excused when he has made no attempt at all to exhaust his claim. See Dabrieo v. Wall, 2017 WL 7113942, at *1 (1st Cir. Sept. 7, 2017).
Pursuant to 28 U.S.C.§ 636(b)(1), the petitioner is given notice that he has fourteen days to file written objections to this Report and Recommendation. In the absence of timely and specific objections any appeal would be severely hampered or entirely defaulted. See 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).