Opinion
Civil Action No. 05-5662.
April 24, 2006
REPORT AND RECOMMENDATION
Presently before this Court is a Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 filed by William Disabatino ("Petitioner"). Petitioner is currently incarcerated at the State Correctional Institution at Frackville, Delaware County, Pennsylvania. Petitioner seeks habeas relief based on violation of due process during his parole process. The Honorable Mary A. McLaughlin referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons that follow, Petitioner's unmeritorious claims should be denied without an evidentiary hearing.
I. BACKGROUND AND PROCEDURAL HISTORY
The facts set forth in this background and procedural history were gleaned from the Petition for Writ of Habeas Corpus, Memorandum of Law, Reply to the Commonwealth's Answer, the Commonwealth's Repose to Writ of Habeas Corpus, and exhibits.
In early 1990, Petitioner was convicted of drug-related crimes and homicide by vehicle. See Pet. Ex. 1 (Sentence Status Summary). He was first paroled in October of 1994. See Resp. Ex. 1 (Parole Letter). On September 26, 1995, Petitioner was arrested for driving under the influence, driving with a suspended or revoked license, and drug violations. See Resp. Ex. 2 (Criminal Complaint). Subsequently, the Pennsylvania Board of Probation and Parole ("Board") recommitted Petitioner as a convicted parole violator ("CPV") to serve 12 months of backtime. See Resp. Br. at 2; Resp. Ex. 3. The Board reparoled Petitioner, in October 1997. See Resp. Br. at 2; Resp. Ex.4-5. In April of 2003, Petitioner was arrested for reckless driving and for being a convict in possession of a firearm. See Resp. Br. at 2; Resp. Ex. 6. A CPV, the Board recommitted Petitioner to serve 18 months of backtime in March 2004 and reminded him that he, "must comply with the institution's prescriptive program and have no misconducts." See Resp. Br. at 2; Resp. Ex. 7.
Petitioner completed the minimum of his total sentence of 5 years 6 months to 18 years 11 months, in October 1994; his maximum period of incarceration expires in March of 2008. See Pet. Ex. 1 (Sentence Status Summary).
Backtime is simply part of a sentence that the Board directs the convict to serve in prison "before the parolee may again be eligible to be considered for a grant of parole." Krantz v. Bd. of Prob. Pa role, 483 A.2d 1044, 1047 (Pa.Commw. 1984).
After serving his backtime, the Board denied Petitioner reparole giving the five following reasons:
[1] YOUR VERSION OF THE NATURE AND CIRCUMSTANCES OF THE OFFENSE(S) COMMITTED;
[2] YOUR REFUSAL TO ACCEPT RESPONSIBILITY FOR THE OFFENSE(S) COMMITTED;
[3] YOUR LACK OF REMORSE FOR THE OFFENSE(S) COMMITTED;
[4] YOUR PRIOR HISTORY OF SUPERVISION FAILURE(S); AND
[5] YOUR NEED TO PARTICIPATE IN AND COMPLETE ADDITIONAL INSTITUTIONAL PROGRAMS.See Resp. Br. at 2; Resp. Ex. 8.
Petitioner claims that this decision violates his federal due process rights, since he complied with the Institution's prescriptive program requirements and drew no misconduct evidenced by the recommendation for parole from the Department of Corrections. See Pet. at 9. He further advances that the Board's decision was an abuse of discretion, not in accordance with the law, arbitrary, capricious, and violative of due process, because the decision contravenes the rehabilitative goals of the prison system. Id. Further, Petitioner requests that exhaustion of his claims be excused. Id.
The Commonwealth protests Petitioner's failure to exhaust and claims that Petitioner has no constitutionally protected procedural or substantive due process interest. See Resp. Br. at 3-11. Specifically, Petitioner argues that a due process violation occurred when the Board used factors it had already considered in its decision to recommit Petitioner to serve 18 months backtime in denying him reparole. See Pet. Ans. at 3-4.
II. DISCUSSION
A. Exhaustion
In ruling on a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, a district court may only consider claims that petitioner is being held in custody in violation of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a). Generally, a claim must first be entertained by the state's highest court prior to filing a petition for federal habeas review. See 28 U.S.C. § 2254(b)(1). See also Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd. 30 F.3d 1488 (3d Cir. 1994) (citations omitted). However, where a petitioner claims a constitutional violation in a parole proceeding, other than one based on the ex post facto clause, he cannot exhaust this claim in state court by way of a writ of mandamus. DeFoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005); Benchoff v. Colleran, 404 F.3d 812, 819 (3d Cir. 2005). Therefore, this court will review Petitioner's unexhausted claim on the merits. See 28 U.S.C. § 2254(b); see also Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996);
The exhaustion requirements of 28 U.S.C. § 2254 provide:
(b)(1) An 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; or
(B)(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 . . .
(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 procedures, the question presented.
Mandamus is based upon a duty by an agency to follow a law and is available only when, under a correct interpretation of that law, the agency has an absolute ministerial duty — no choice — to act in a certain way. Defoy, 393 F.3d at 444 (quoting Weaver v. Pa. Bd. of Prob. Pa role, 688 A.2d 766, 777 (Pa.Commw. 1997)). Mandamus cannot be used to say that an agency considered improper factors, that its findings of fact were wrong, or that the reasons set forth in its decision are a pretense. Id. If that was the nature of mandamus, there would be no difference between it and an appeal from the agency's decision or other forms of actions to address those concerns. Id. Mandamus is not available for Pennsylvania state prisoners seeking to challenge the denial of their parole on constitutional grounds other than the ex post facto clause. Id.
B. Merits of Petitioner's Due Process Claim
The Constitution does not by itself give a convict a liberty interest in parole protected by the Fourteenth Amendment. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979); Thorpe v. Grillo, 80 Fed. Appx. 215, 219 (3d Cir. 2003); Obst v. Patrick, 2004 U.S. Dist. LEXIS 21221, *21 (E.D. Pa. 2004); McCrery v. Mark, 823 F.Supp. 288, 293 (E.D. Pa. 1993). While the states may create a liberty interest under the Fourteenth Amendment, the Pennsylvania Probation and Parole Act did not do so. The Board has complete discretion to grant or deny parole, without constraint from any particularized substantive predicates. Wagner v. Pa. Bd. Of Prob. Parole, 2004 U.S. Dist. LEXIS 11815 (E.D. Pa. 2004); 61 Pa. C.S.A. § 331.21. The United States Supreme Court has confirmed that even a state parole board's initial decision to release a prisoner on parole does not create a liberty interest in ongoing parole; the board can rescind it's decision, at will without providing the prisoner due process. Jago v. Van Curen, 454 U.S. 14 (1981).
The Fourteenth Amendment does not require due process unless the state interferes with a protected liberty or property interest. Ohio Adult Parole Auth. v. Woodward, 523 U.S. 272, 279-286 (1998); Kentucky Dept. Of Corrections v. Thompson, 490 U.S. 454, 459, 460 (1989); Hewitt v. Helms, 459 U.S. 460, 466-71 (1983).
The Third Circuit has held that, substantive due process, requires that the state not deny parole on unconstitutionally impermissible grounds, such as race or retaliation for exercising constitutional rights. See Bobko v. Lavan, 157 Fed. Appx. 516, 518 (3d Cir. 2005) ; Burkett v. Love, 89 F.3d 135, 140 (3d Cir. 1996) (stating that no liberty interest is created by the expectation of parole); see also Lindeman v. Pa. Bd. of Prob. Parole, 1999 U.S. Dist. LEXIS 19416, *4 (Dec. 17, 1999). Further, state action is valid if it is rationally related to a legitimate state interest. Bell v. Wolfish, 441 U.S. 520, 539, 540 (1979); Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981). This relationship exists as long as it "might be thought" that the state's action was a rational way to solve a problem. Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488 (1955); Sammon v. N.J. Bd. of Med. Examiners, 66 F.3d 639, 645 (3d Cir. 1995).
Pennsylvania law grants the Parole Board vast discretion to refuse or deny parole. See 61 Pa.C.S.A. § 331.21. The statute provides:
The Board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said 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 . . . Said board shall have the power during the period for which a person shall have been sentenced to recommit one paroled for violation of the terms and conditions of his parole and from time to time reparole and recommit in the same manner and with the same procedure as in the case of an original parole or recommitment . . .
The law also authorizes the Board, in its discretion, to consider various factors, similar to those considered in Petitioner's case, in granting or denying parole. See 61 Pa.C.S.A. § 331.19. Pennsylvania courts have affirmed the Board's complete discretion to parole a convict. See e.g., Rogers v. Bd. of Prob. Parole, 724 A.2d 319 (Pa. 1999); Weaver v. Bd. of Prob. Parole, 514 A.2d 967, 971 (Pa.Commw. 1986); Reider v. Bd. of Prob. Parole, 514 A.2d 967 (Pa.Commw. 1986). The convict has no right to reparole. Counts v. Bd. of Prob. Parole, 487 A.2d 450 (Pa.Commw. 1985). "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." Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001).
In this case, the Parole Board's parole denial, responsive to Petitioner's version of the nature and circumstances of the offenses he committed, refusal to accept responsibility for those offenses, lack of remorse for those offenses, prior history of supervision failures, and need to participate in and complete additional institution programs comply with Pennsylvania's statutory requirements, was proper. Reliance upon these legitimate factors in no wise implicates abuse of discretion or action violative of Petitioner's constitutional rights. To the contrary, Petitioner's re-incarceration, after two parole failures, is rationally related to Pennsylvania's interest in protecting it's citizenry, punishing violators, rehabilitating them, and conducting an efficient criminal justice system.
Petitioner's argument that he satisfied all of the Board's requests for consideration of parole misapprehends the Board's discretionary powers. Simply meeting the Board's recommendations to increase the parolee's chances of being granted parole does not bind the Board to actually grant parole. Additionally, the record to date suggests that Petitioner has not met all of the Board's criteria, such as, completing additional institutional programs.
The Board's exercise of discretion was neither arbitrary or capricious, and did not violate substantive due process; hence Petitioner's contentions lack merit and should be denied. See generally, Lindeman, 1999 U.S. Dist. LEXIS, at *8-9. Accordingly, I make the following:
RECOMMENDATION
AND NOW, this 24th day of April 2006, for the reasons contained in the preceding report, it is hereby RECOMMENDED that the Petition for Writ of Habeas Corpus pursuant to U.S.C. § 2254 be DENIED without an evidentiary hearing. Petitioner has not demonstrated a substantial violation of any Constitutional right; therefore, there is no probable cause to issue a certificate of appealability.IT BE SO ORDERED.