Opinion
Civil Action No. 04-774.
June 23, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Patrick J. Wagner ("Petitioner"), pursuant to 28 U.S.C. § 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Graterford, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied and dismissed with prejudice and without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus and Memorandum of Law, the Amended Petition, the Response, and the exhibits attached to those pleadings.
Petitioner pled guilty in the Court of Common Pleas of Chester County on January 30, 1989 to robbery with serious bodily injury and was sentenced to four to eight years' imprisonment. On April 18, 1989, Petition was found guilty in the same court of criminal attempt (robbery) and possession of an instrument of crime ("PIC") and was sentenced to two to ten years' imprisonment for the criminal attempt (robbery) conviction to be served concurrent to all other sentences, and one to two years' imprisonment for the PIC conviction to be served consecutively to all other sentences.
The robbery, criminal attempt (robbery) and PIC crimes were committed while Petitioner was on parole from another sentence for rape and related charges. Because of these new convictions, the Pennsylvania Board of Probation and Parole ("PBPP") found Petitioner to be a technical parole violator and sentenced him to serve four years and six months' backtime owed on the rape sentence for which petitioner was on parole at the time he committed the robbery, criminal attempt and PIC. After accounting for backtime owed and credit for time served, Petitioner's robbery sentences had an effective date of November 23, 1990. Thus, Petitioner's minimum release date was November 23, 1995, and his maximum release date was April 18, 2004.
The PBPP granted Petitioner's parole application on July 12, 1999, subject to numerous conditions including a six-month stay at a community corrections center, drug and alcohol counseling, urinalysis testing, a ban any alcohol consumption, and curfew restrictions. Petitioner was paroled on January 12, 2000.
On April 14, 2001, Petitioner was arrested in Bucks County, Pennsylvania, and charged with driving under the influence, disorderly conduct, and public drunkenness. On October 24, 2001, he was found guilty in the Court of Common Pleas of Bucks County of driving under the influence and public drunkenness and sentenced to four to twelve months' imprisonment. Because of these new charges, Petitioner was found by the PBPP to be a technical and convicted parole violator and ordered to serve at least twelve months of backtime, when available.
Petitioner was paroled from his new Bucks County convictions for driving under the influence and public drunkenness on May 9, 2002, and began serving the backtime owed for the robbery convictions from Chester County. Petitioner's new maximum for his 1989 robbery sentences became June 8, 2006, following an accounting by the PBPP for the two months and seven days that Petitioner served for the PBPP's retainer, from August 17, 2001 to October 24, 2001, as well as his backtime owed.
The PBPP approved Petitioner's parole application on May 27, 2003, subject to numerous conditions, including the condition that Petitioner be paroled to an in-patient drug and/or alcohol treatment program. Petitioner has not yet been paroled because he is on the waiting list for an appropriate community corrections center, and the PBPP is investigating an alternate parole plan where Petitioner would be paroled to a Veteran's Hospital.
On February 12, 2004, Petitioner signed the instant Petition, and on February 24, 2004, it was docketed with this Court. The Honorable Edmund V. Ludwig referred it to this Court for preparation of a Report and Recommendation on March 1, 2004. Petitioner alleges that (1) the PBPP abused its discretion or acted in an arbitrary or capricious manner by applying the tougher new parole rules enacted in 1996 to his case; and (2) the PBPP abused its discretion or acted in an arbitrary or capricious manner by practi[c]ing bad faith and willful noncompliance in his case. (Pet. at 9-10.)
Respondents contend that Petitioner has failed to exhaust his state court remedies and the Petition fails to raise any cognizable constitutional claims. They therefore claim that the Petition is procedurally defective and meritless.
II. DISCUSSION.
Respondents first contend that Petitioner has not exhausted his state court remedies and that the Petition should therefore be dismissed. They claim that Petitioner filed two related actions in the Commonwealth Court of Pennsylvania. Although Petitioner contends that he raised numerous issues in these filings, including an allegation that the PBPP applied pre-1996 standards to his parole application, the Respondents contend that both of those actions actually only raised one issue, i.e., whether Petitioner should receive credit towards his sentence for his time spent on parole at a community corrections center.
On January 14, 2003, the Commonwealth Court remanded this issue to the PBPP to conduct an evidentiary hearing regarding whether Petitioner was entitled to credit for time spent at the Diagnostic Rehabilitation Center in Philadelphia. Following an unfavorable decision after the administrative hearing, Petitioner filed a second case in the Commonwealth Court. On April 1, 2004, the Commonwealth Court issued an opinion in which it found that Petitioner was not entitled to credit for the time he spent at a community corrections center. Resp., Ex. R-6. From the Commonwealth Court decision, it is not apparent that any other issues were before the Commonwealth Court, and Petitioner does not allege that he appealed either of those Commonwealth Court decisions to the Supreme Court of Pennsylvania. Thus, Respondents contend that the Petition should be dismissed for failure to exhaust state court remedies.
Despite Respondents' claim that this Court should dismiss this case for failure to exhaust state court remedies, it is unclear whether Petitioner actually did exhaust these remedies, and the merits of Petitioner's arguments will be hereafter examined.
A. Petitioner's Ex Post Facto Claim.
Petitioner's first claim is that the PBPP violated his constitutional rights by using guidelines enacted in 1996 to evaluate his parole application. Petitioner states that he "was convicted and sentenced 04/18/1989. The exhaustion doctrine is already satisfied by virtue of the state's highest court having ruled on the same subject matter." (Pet. at 9.) Respondents argue that this ex post facto claim is moot because Petitioner's parole application was granted as of May 27, 2003, well before this Petition was filed. Moreover, although Petitioner remains incarcerated, Respondents contend that he may be released at any moment as soon as space opens at an in-patient drug and/or alcohol treatment program. Petitioner has not yet been paroled because he is on the waiting list for an appropriate community corrections center.
Respondents opine that Petitioner is attempting to compare his situation to that of the petitioner in Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003). In that case, the PBPP recommended to the Governor of Pennsylvania that he should commute the defendant's life sentence. The Governor commuted his sentence, and the defendant made several applications for parole, all of which were denied by the PBPP. The Third Circuit found that the PBPP's denial of Mickens-Thomas' parole application violated the Ex Post Facto Clause since it appeared that the 1996 amendment to 61 P.S. section 331.1 had changed the standards under which parole is granted or denied in Pennsylvania and Mickens-Thomas' application had been evaluated under these new standards.
Section 1 of the Parole Act was amended in 1996, and the complete statute reads as follows:
The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison. In providing these benefits to the criminal justice system, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control, and treatment of paroled offenders.61 P.S. § 331.1. From 1941 through 1996, the statute provided that:
The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment, and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.61 P.S. § 331.1 (pre-1996 version).
Although it appears that Mickens-Thomas is applicable to this case, Respondents correctly note that the Third Circuit's opinion in Mickens-Thomas did not address the PBPP's powers to attach conditions to parole. According to Respondents, the 1996 changes to the parole statutes in no way affected the statute that specifically addresses the PBPP's powers to attach special conditions to parole. Respondents note that the statute continues to state that the PBPP may attach special conditions "as it deems necessary." 61 P.S. § 331.23. Respondents deny that the change in wording of the parole statutes in 1996 is the reason the PBPP conditioned Petitioner's parole on residence at an in-patient drug/alcohol treatment program. Rather, they contend that the special condition that Petitioner initially reside at an in-patient drug/alcohol treatment center is logical given Petitioner's parole violation history and history of parole violations. This special condition of in-patient drug/alcohol treatment program addresses Petitioner's specific treatment needs. Thus, it is not violative of the Ex Post Facto Clause, and this claim should be denied.
B. Whether Petitioner's Continued Incarceration Following the Grant of Petitioner's Parole Application Violates His Constitutional Rights.
Petitioner's next argument is that the PBPP abused its discretion or acted in an arbitrary or capricious manner by acting in bad faith and willful noncompliance. Respondents contend that the due process clause does not apply in this situation and that the Parole Board has not violated Petitioner's procedural due process rights because the Constitution does not, by itself, give a convicted person a liberty interest in parole that is protected by the Fourteenth Amendment. Greenholtz v. Inmates of Neb. Penal Corr. Complex, 442 U.S. 1, 7 (1979) (finding discretionary parole a mere hope and the decision whether or not to grant parole did not involve fact issues, but the Board members' subjective predictions of applicant's future behavior); McCrery v. Mark, 823 F. Supp. 288, 293 (E.D. Pa. 1993).
The Greenholtz Court stated, "[t]here is no Constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz, 442 U.S. at 7.
Further, "[i]n Pennsylvania, `a parole eligibility date, usually set at the expiration of the prisoner's minimum sentence, does not vest any right to a grant of parole upon reaching that date.'" DeBrose v. Chesney, No. 95-6813, 1996 WL 4093, at *3 (E.D. Pa. Jan. 2, 1996) (quoting Reider v. Commonwealth, Pa. Bd. of Prob. Parole, 514 A.2d 967, 971 (Pa.Commw. 1986) andMcCrery, 823 F. Supp. at 294. The United States Supreme Court has never applied substantive due process in the absence of a constitutionally protected life, liberty, or property interest.See, e.g., Reno v. Flores, 507 U.S. 292, 301-302 (1993);Planned Parenthood v. Casey, 505 U.S. 833, 846-854 (1992);Washington v. Harper, 494 U.S. 210, 220-223 (1990). The Supreme Court has held that Fourteenth Amendment due process applies only to protect defined life, liberty, or property interests. See Sandin v. Connor, 515 U.S. 472 (1995); Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 459-460 (1989); Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458 (1981) (holding there was no liberty interest in commutation of life sentences and Connecticut statutes provided Board of Pardons with unfettered discretion).
Although states may create liberty interests protected by the Due Process Clause, these interests will:
be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, . . . nonetheless impose atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.Sandin, 515 U.S. at 484 (citations omitted). A decision for an imprisoned individual to remain in prison for the duration of his sentence does not impose an atypical hardship on the prisoner since prison sentences are ordinarily served in prison. Further, even if continued imprisonment under a prison sentence is considered atypical, a prisoner has no state-created constitutionally protected liberty interest in parole unless state laws require parole or reparole upon proof of specific substantive criteria. Greenholtz, 442 U.S. at 11-12; Ky. Dep't of Corr., 490 U.S. at 461-463 (citing Olim v. Wakinekona, 461 U.S. 238, 249 (1983)). Before the Constitution protects an interest defined by state law, the claimant must have a legitimate claim of entitlement to it. Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).
The Pennsylvania Probation and Parole Act does not create a liberty interest in parole which would be protected under the federal Constitution because the PBPP has complete discretion to grant or deny parole without constraint from any particularized substantive predicates. See 61 Pa. C.S.A. § 331.21; McCrery, 823 F. Supp. at 293. In Jago v. Van Curen, 454 U.S. 14 (1981), the Supreme Court held that a state parole board's decision to release a prisoner on parole did not create a liberty interest and that the board could rescind its decision without providing the prisoner due process. In fact, courts in Pennsylvania have held that the PBPP has such complete discretion with respect to parole, that a prisoner has no constitutionally protected interest in the grant or denial of parole and may not even appeal an unfavorable decision. See Reider, 514 A.2d at 971; King v. Bd. of Prob. Parole, 534 A.2d 150, 151 (Pa.Commw. 1987).
Petitioner filed a Motion for Summary Judgment with attachments including a March 1, 2004 letter from Carol Sonnen, MSW, at the Department of Veterans Affairs Medical Center in Lebanon, Pennsylvania, thanking Petitioner for returning his completed application for the VA substance abuse program, informing Petitioner that he was eligible for VA services, and advising Petitioner that his next step was to meet with his institutional parole agent to see if the PBPP approved his entry into the 21-day substance abuse residential treatment program followed by a 60-day community re-entry unit to address vocational and continued recovery issues, which would serve as Petitioner's alternate home plan. Petitioner also submitted a copy of a March 25, 2004 "Inmate's Request to Staff Member," addressed to Petitioner's Parole Agent Case Manager, Karen Nyce, to which Petitioner attached the Lebanon County VA Medical Center letter. In this Request, Petitioner asks:
Please let me know if this inpatient residential treatment program [is] acceptable to the Pennsylvania Board of probation and Parole, since I can't be placed into a community corrections program in a timely matter [sic], because of a limited number of openings available in the Philadelphia-area facilities (Region One).
Pet.'s Mot. Summ. J., Ex. 2. The PBPP states in their Response that they are "currently investigating an alternate parole plan where Petitioner would be paroled to a Veterans Hospital." Resp. at 3. For support, the PBPP attaches an Investigation Request/Report dated May 3, 2004, containing the following in the Remarks section:
PLEASE NOTE: This is the 3rd home plan being submitted by Mr. Wagner. Board Action dated 3/03 to parole to CCC; however, he has remained on a waiting list for Region I — Inmate has previous sex offender Rape (VOP) Montgomery County #AM-9165 — 1 yr. 3 mos. to 5 yr. term — Currently serving a 3 yr. to 15 yr. term for Robbery.
Inmate submitted a letter from Department of Veterans Affairs and would like to submit this home plan to reside at the Lebanon VA Medical Center. Home plan is therefore being submitted for investigation.
Resp., Ex. R-4. As of this date, this Court has not been informed whether the PBPP has completed its investigation of the viability of placing Petitioner in the Lebanon County facility. However, given the discretion granted to the PBPP, and the PBPP's explanation of its current review, the Petition must be denied. Moreover, Petitioner's Motion for Summary Judgment on the Petition for Writ of Habeas Corpus must be denied.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of June, 2004, IT IS RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 should be DENIED with prejudice and DISMISSED. It is also recommended that the Petitioner's Motion for Summary Judgment should also be DENIED. There are no grounds upon which to issue a certificate of appealability.