Opinion
Civil No. 1:18-CV-1419
03-20-2019
KENYATTA WRIGHT, Petitioner, v. LAWRENCE MAHALLY, Respondent
(Judge Rambo)
( ) REPORT AND RECOMMENDATION
I. Factual Background and Procedural History
Pending before the Court is a petition for a writ of habeas corpus filed by Kenyatta Wright, who was formerly an inmate in the custody of the Pennsylvania Department of Corrections. (Doc. 1.) The pertinent facts in this case can be simply stated. According to Wright, he pleaded guilty and was convicted of state drug offenses in 2014. At that time, Wright was sentenced to 1 ½-to-3 years imprisonment and had a maximum release date of September 16, 2017. Wright was paroled on this sentence in November of 2015, but while on parole in February of 2017, he sold a bag of synthetic marijuana to an undercover police officer. Wright was arrested for this offense in June of 2017, pleaded guilty and was sentenced in September of 2017 to 9-to-23 months imprisonment. Wright's new criminal conduct, arrest and conviction all took place just prior to the expiration of his parole term on his 2014 state drug conviction. Accordingly, a parole detainer was lodged against Wright, and his parole was revoked.
This factual narrative is taken from Wright's pleadings, (Docs. 1 and 2) and the Commonwealth's response. (Doc. 13.) --------
While Wright's petition is not entirely clear on this point, it appears that at the time of his parole revocation, the Parole Board denied him credit for street time which he had spent on parole prior to indulging in new criminal conduct while under parole supervision. The practical effect of this decision to both revoke Wright's parole and deny him street time credit for the time he had spent on parole was to extend his term of incarceration on this parole violation beyond what Wright believed to be his initial maximum sentence date, September 16, 2017. Once Wright lost credit for the time he had spent on parole, he reported that his new maximum release date following his parole revocation was March 13, 2019.
It is this extension of his release date to early 2019, which followed the revocation of Wright's parole based upon his new criminal conduct, that forms the gravamen of this habeas corpus petition. As we construe the petition, Wright is challenging the Parole Board's decision to deny him credit for time spent on parole and extend his maximum release date to March of 2019 when it revoked his state parole.
With this issues framed in this fashion, Wright filed his habeas corpus petition in 2018. Briefing of the petition concluded in January of 2019, and in January and March of 2019 the district court entered orders referring this matter to the undersigned.
Upon referral of this case, we noted that Wright's pleadings indicated that his maximum release date was March 13, 2019. Accordingly, we examined the Department of Corrections' inmate locator service, which confirmed that Wright is no longer in state custody on this charge. On these facts, it is recommended that Wright's petition for writ of habeas corpus be denied, both as moot and because the petition lacks merit under any of the various constitutional arguments that Wright asserts, since the revocation of parole and denial of street time credit does not offend due process for a parolee, like Wright, who engages in new criminal conduct while on parole.
II. Discussion
A challenge to the denial of parole is cognizable under 28 U.S.C. § 2254. See Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) (jurisdiction to entertain a state prisoner's habeas petition challenging denial of parole lies under § 2254, not § 2241). Pursuant to 28 U.S.C. § 2254(a), a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
A state prisoner must meet exacting substantive standards to obtain habeas corpus relief. As amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254 sharply limits the power of a federal court to grant a state prisoner's petition for a writ of habeas corpus. Cullen v. Pinholster, 563 U.S. 170, 181 (2011). A federal court may not grant habeas relief with respect to any claim that has been adjudicated on the merits unless the adjudication in a state proceeding (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, or (2) resulted in a decision that was based upon an unreasonable determination of the facts. 28 U.S.C. § 2254(d). This standard is highly deferential and difficult to meet. Cullen, 563 U.S. at 181. It "reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice systems,' not a substitute for ordinary error correction through appeal." Harrington v. Richter, 562 U.S. 86, 102-03 (2011).
Although a challenge to the denial of parole may be brought under § 2254, a federal district court may not grant parole or determine parole eligibility. Henderson v. Brookes, No. 1:15-CV-2358, 2017 WL 6497358, at *2 (M.D. Pa. Dec. 19, 2017); Alex v. Gavin, Civ. No. 1:CV-14-0261, 2015 WL 8012825, at *1 (M.D. Pa. Dec. 7, 2015). Instead, "[t]he only remedy which the court can give is to order the Board to correct the abuses or wrongful conduct within a fixed period of time, after which, in the case of non-compliance, the court can grant the writ of habeas corpus and order the prisoner discharged from custody." Gavin, 2015 WL 8012825 at *1 (quoting Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976)); see also Bridge v. U.S. Parole Comm'n, 981 F.2d 97 (3d Cir. 1992).
Further, it is a basic principle of constitutional law that federal courts do not have jurisdiction to decide an issue unless it presents a live case or controversy. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009). In order to meet this standard, and "[t]o invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Burkey, 556 F.3d at 147 (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). "This case-or-controversy requirement subsists through all stages of federal judicial proceedings . . . . The parties must continue to have a 'personal stake in the outcome' of the lawsuit." Spencer, 523 U.S. at 7 (quoting Lewis, 494 U.S. at 477-78). Accordingly, "[i]f developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).
There is a necessary corollary to the mootness doctrine that applies in cases such as the instant case, where it appears that a petitioner has completed service of any sentence which he challenged in a petition for writ of habeas corpus. In this setting: "After a petitioner's release from custody, we consider his habeas case moot unless he 'can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand.'" Leyva v. Williams, 504 F.3d 357, 363 (3d Cir. 2007) (quoting DeFoy v. McCullough, 393 F.3d 439, 441-41 & n.3 (3d Cir. 2005)). See e.g., Kozak v. Commonwealth of PA, No. 3:14-CV-984, 2017 WL 4413193, at *3 (M.D. Pa. Sept. 29, 2017) (dismissing petition); Nalls v. Superintendent Sci-Dallas, No. 1:16-CV-0098, 2016 WL 6995517, at *1 (M.D. Pa. Nov. 30, 2016) (same).
These basic principles apply here, and compel denial of this petition.
At the outset, this petition should be dismissed because the petition is now moot. According to the Department of Corrections' inmate locator, Wright is no longer in state custody. This report is entirely consistent with Wright's own pleadings, which stated that his maximum release date was March 13, 2019. (Doc. 2, p. 3.) It is well-settled that a court may take judicial notice of Inmate Locator search results in determining whether an inmate remains in custody. Illarraza v. Chuta, Civ. A. No. 1:15-cv-2406, 2017 WL 1246363, at *2 (M.D. Pa. Feb. 10, 2017); see also Fed. R. Evid. 201. Such reliance on Inmate Locator records is particularly appropriate here, where Wright has confirmed that he would no longer be in state custody after March 13, 2019. Since it is evident that Wright is no longer in custody in this case, and Wright has not demonstrated that he will suffer some collateral consequences if this parole revocation decision is allowed to stand, this petition should now be dismissed as moot.
In any event, the petition fails on its merits. In his petition, Wright contends that the Parole Board acted improperly when it recalculated his maximum release and disallowed him credit for time spent on parole. Essentially, Wright seems to believe that the original calculation of his sentence maximum date—at the time he was originally sentenced—may never be adjusted by the Parole Board in cases like this one, where a parolee has been at liberty on parole from a custodial sentence and is later recommitted as a parole violator following a new criminal conviction.
To the extent that Wright, a recidivist drug trafficker, suggests that he might have some substantive right to parole on a specific date, he is mistaken. Indeed, courts have routinely rejected precisely this suggestion, and the suggestions by state prisoners that discretionary parole denials offend principles of due process. See, e.g., Williams v. Pa. Bd. of Probation and Parole, No. 07-3158, 2008 WL 5120773 (E.D. Pa. Oct. 31, 2008); Walls v. Attorney General, No. 06-1598, 2007 WL 4190790 (W.D. Pa. Nov. 26, 2007); Zuniga v. Pa. Bd. of Probation and Parole, No. 05-5517, 2007 WL 1002179 (E.D. Pa. March 29, 2007); Anderson v. Pa. Bd. of Probation and Parole, No. 05-00163, 2006 WL 1149233 (M.D. Pa. April 26, 2006). The Fourteenth Amendment to the United States Constitution states in pertinent part: "nor shall any state deprive any person of life, liberty, or property without due process of law." U.S. Const., amend XIV, § 1. This provision protects individuals against arbitrary government action. Wolff v. McDonnell, 418 U.S. 539, 558 (1974). However, to establish that the state has violated an individual's right to 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, and (2) establish that the procedures attendant upon that deprivation were constitutionally deficient. Kentucky Dep't of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
To constitute a protected liberty interest, an individual must have a legitimate claim or entitlement to the subject of the deprivation. Id. The Supreme Court has explained that the United States Constitution does not provide any legitimate claim to parole, and therefore, the granting of parole prior to the expiration of a prisoner's minimum term is not a constitutionally protected liberty interest that is inherent to the Due Process Clause of the Fourteenth Amendment. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979); Thorpe v. Grillo, 80 F. App'x 215, 219 (3d Cir. 2003). Pennsylvania courts have consistently held that parole is not a constitutionally protected liberty interest under Pennsylvania law. See Coady v. Vaughn, 770 A.2d 287, 289 (Pa. 2001) ("It is undisputed that [an inmate] does not have a clear legal right to the grant of parole, nor does the board have a corresponding duty to grant the same."); Rogers v. Pa. Bd. of Probation and Parole, 724 A.2d 285, 292 (Pa. 1999); see also Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996). Accordingly, the denial of parole itself cannot constitute a procedural due process violation. Greenholtz, 442 U.S. 1, 7-10 (1979); Rauso v. Vaughn, 79 F. Supp. 2d 550 (E.D. Pa. 2000).
Although an inmate like Wright has no procedural due process right with respect to parole, the Third Circuit has recognized a cause of action under the Fourteenth Amendment for substantive 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). Thus, even though there is no liberty interest in parole, the 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. Likewise, the Board may not base its parole decisions on factors that bear no rational relationship to the Commonwealth's interests. Block, 631 F.2d at 237.
While inmates may not be denied parole for reasons that would offend principles of substantive due process, and parole denials may not be motivated by arbitrary or constitutionally impermissible reasons, it is clear that "federal courts . . . are not to 'second-guess parole boards', and the requirements of substantive due process are met if there is some basis for the challenged decision." Hunterson v. DiSabato, 308 F.3d 236, 246 (3d Cir. 2002); see also Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001) (federal courts are 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). Moreover, the "relevant level of arbitrariness required to find a substantive due process violation involves not merely action that is unreasonable, but, rather, something more egregious, which we have termed at times 'conscience shocking' or 'deliberately indifferent.'" Hunterson, 308 F.3d at 247.
Judged against this deferential standard, Wright's complaint that he was not given more favorable parole consideration, or that he was not provided sufficient explanation regarding the reasons for the Board's recalculation of his maximum release date, are unavailing. Wright simply has not made a claim, much less supported it with any evidence, that the Parole Board's treatment of his parole requests was so egregious as to be conscience shocking. Instead, the Board's decision to deny Wright parole, and its decision not to credit him for time spent while on parole before his most recent criminal conviction, was grounded in uncontroverted facts that amply justify the Board's judgment since Wright committed new drug trafficking crimes while on parole from his prior drug trafficking conviction.
Simply put, this result seems dictated by state law. Section 6138 of the Pennsylvania Prisons and Parole Code ("Parole Code") provides that a parolee may be recommitted as a convicted parole violator if the parolee commits any crime punishable by imprisonment, while on parole, from which he is convicted or found guilty. 61 Pa. Cons. Stat. Ann. § 6138(a)(1). That statute further provides, in unmistakably clear terms, that a convicted parole violator "shall be given no credit for the time at liberty on parole." Id. at § 6138(a)(2). Accordingly, the law is straightforward that unless the Board, in its discretion, decides to award credit in such a situation, the parolee is obligated to serve the remainder of the term which he would have been compelled to serve had he not been paroled, with no credit given for street time. Id.; see also Stepoli v. Pa. Bd. of Probation and Parole, 525 A.2d 888, 889 (Pa. Commw. Ct. 1986). When the Board recomputes the time yet served on the original sentence, the convicted parole violator's street time is added to the original maximum sentence expiration date to create a new maximum expiration date. Palmer v. Pa. Bd. of Probation and Parole, 704 A.2d 195, 197-98 (Pa. Commw. Ct. 1997). Were it otherwise, the statute providing for the forfeiture of time spent on parole would be meaningless.
Moreover, and critically for purposes of the instant petition, there is no constitutional right to receive credit for time spent on parole in the calculation of a parolee's maximum sentence. Morrisey v. Brewer, 408 U.S. 471, 480 (1972). Furthermore, to the extent that Wright purports to be challenging the constitutionality of this aspect of Pennsylvania's parole statute, it is well established that the provision of the parole statute calling for the forfeiture of time spent on parole by criminal recidivists like Wright who violate their parole supervision is constitutional. See United States ex rel. Lawson v. Cavell, 425 F.2d 1350, 1352 (3d Cir. 1970) (rejecting Eighth Amendment and due process claims). Indeed, federal courts have expressly considered this provision of state law that Wright challenges, which permits the recalculation and extension of maximum release dates for offenders who commit new crimes and violate the terms of their parole, and have held that "[n]o [federal] constitutional question is involved in the Parole Board's failure to give relator credit for time on parole and its adjustment of the expiration date of his new maximum." See United States ex rel. Heacock v. Myers, 367 F.2d 583 (3d Cir. 1966). As this Court observed several over four decades ago when it disposed of a similar inmate complaint:
Petitioner contends that in taking away his "street time" the Board unlawfully extended his maximum sentence in violation of his rights under the Fifth and Fourteenth Amendments. [The Pennsylvania State parole statute], directing the Pennsylvania Board of Parole to give a recommitted, convicted parole violator no credit for time spent on liberty while on parole, has withstood numerous constitutional
challenges in the federal courts. [This statute] has been held not to violate the due process and equal protection guarantees of the federal constitution, and not to violate the constitutional prohibitions against double jeopardy, bills of attainder, cruel and unusual punishment or ex post facto laws. See also, United States ex rel. Heacock v. Myers, 251 F. Supp. 773 (E.D. Pa. 1966), aff'd per curiam 367 F.2d 583 (3d Cir. 1966), cert. denied, 386 U.S. 925, 87 S. Ct. 900, 17 L.Ed.2d 797 (1967); United States ex rel. Brown v. Pennsylvania Board of Parole, 309 F. Supp. 886 (E.D. Pa. 1970); Gomori v. Maroney, 196 F. Supp. 190 (W.D. Pa. 1961), aff'd, 300 F.2d 755 (3d Cir. 1962). In view of the foregoing authorities, the Court finds petitioner's contention without merit.Choice v. Pennsylvania Bd. of Parole, 448 F. Supp. 294, 298 (M.D. Pa. 1977) (footnotes and citations omitted).
In sum, Wright's due process challenge to the Board's decision to recalculate his maximum release date is without legal merit. Therefore, the instant petition is doubly flawed in that it is both moot and meritless, and should be denied.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS HEREBY RECOMMENDED that the petition for a writ of habeas corpus in this case be DENIED, and that a certificate of appealability should not issue, as Wright has not demonstrated "a substantial showing of the denial of a constitutional right." 28 U.S.C § 2253(c)(2); see also Buck v. Davis, 137 S. Ct. 773-75 (2017); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 20th day of March 2019.
/s/ Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge