Opinion
CIVIL 1:21-CV-1877
02-24-2022
ROBERT HARRY THOMAS, Petitioner, v. PENNSYLVANIA PAROLE BOARD and LAUREL HARRY, Respondents.
Rambo, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge
I. Factual Background and Procedural History
Pending before the Court is a petition for a writ of habeas corpus filed by Robert Harry Thomas, an inmate in the custody of the Pennsylvania Department of Corrections, who is challenging a discretionary decision by the Pennsylvania Board of Probation and Parole denying him release on parole. (Doc. 1). The pertinent facts in this case can be simply stated:
[I]n the early morning hours of May 10, 2009, [Thomas] broke into the home of his ex-girlfriend (“the victim”), bound her wrists, ankles and face in duct tape, threatened her with a knife, and caused her to fear for her life. After several hours, [Thomas] released the victim. She had minor injuries to her face, neck, and wrists. Later that morning, the victim went to a neighbor and reported the incident; the neighbor contacted the police. [Thomas] was arrested and charged with one count each of kidnapping, burglary, terroristic threats, and false imprisonment.Com. v. Thomas, No. 1191 MDA 2015, 2016 WL 1625804, at *1 (Pa. Super. Ct. Apr. 25, 2016). Following a two-day trial, Thomas was convicted of one count of burglary, one count of terroristic threats, and one count of false imprisonment. He was sentenced in 2012 to an aggregate term of incarceration to 10 to 20 years. Id.
While in custody Thomas has been considered for parole on three occasions: January 25, 2019, January 31, 2020, and February 8, 2021. (Doc. 8). On each occasion in the exercise of its discretion the Parole Board denied Thomas early release from custody. The Board's January 25, 2019 parole denial decision rested upon its findings that Thomas needed to complete additional prison programming, considered his prior unsatisfactory supervision history, and took into account his refusal to accept responsibility for his actions, as well as his minimization of his conduct. (Id.) Likewise, the January 31, 2020 parole denial was based upon a variety of factors including Thomas' minimization of his conduct, failure to demonstrate motivation for success, refusal to accept responsibility, lack of remorse, and the existence of federal detainers which were lodged against this prisoner. (Id.) On February 8, 2021, the Board issued a third decision denying Thomas parole. Like its prior two decisions, this ruling cited Thomas' minimization of his conduct, failure to demonstrate motivation for success, refusal to accept responsibility, lack of remorse, the existence of federal detainers which were lodged against this prisoner, and the recommendation of the prosecuting attorney that parole be denied. (Id.)
Dissatisfied with these decisions, Thomas has filed the instant federal habeas corpus petition. Citing his age, 63, his medical impairments, which include a cancer diagnosis, and the federal detainers lodged against him which may compel additional incarceration, Thomas argues that the discretionary decision of the Parole Board denying him parole violates his constitutional rights. The Parole Board has responded to this petition, (Doc. 8), and this case is, therefore, ripe for resolution.
For the reasons set forth below, it is recommended that this petition be denied.
II. Discussion
A challenge to the denial of parole is cognizable in habeas corpus 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).
These basic principles apply here, and compel denial of this petition.
At the outset, the petition fails on its merits. To the extent that Thomas, a criminal recidivist serving a state sentence and subject to federal detainers, 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 Fed.Appx. 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 Thomas 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 also quite 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, Thomas' complaint that he was not given more favorable parole consideration is unavailing. While we appreciate the infirmities which the petitioner is experiencing, Thomas 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 Thomas parole was grounded factors that amply justify the Board's judgment; namely, Thomas' minimization of his conduct, failure to demonstrate motivation for success, refusal to accept responsibility, lack of remorse, the existence of federal detainers which were lodged against this prisoner, and the recommendation of the prosecuting attorney that parole be denied.
It is the right and the responsibility of the Parole Board to take such matters into consideration when making discretionary parole release decisions. Moreover, nothing about the exercise of this discretion in Thomas' case is conscience shocking. Therefore, Thomas has not made the exacting showing necessary to secure habeas corpus relief and this petition 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 Thomas 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.