The opinion of the court was delivered by: Ludwig, District Judge.
AND NOW, this 11th day of January, 2000, upon petitioner
Gennaro Rauso's motion for reconsideration, the order of November
4, 1999 denying his habeas corpus petition is vacated. However,
the petition is again denied, on other grounds.
The order of November 4, 1999 was entered for the reason that
the requested relief appeared to constitute a second or successive
petition. Given that Rauso's earlier habeas petitions had been
dismissed without prejudice, they should not have been counted in
determining whether there was a second or successive petition. A
brief recounting of this confusing procedural history may be
On December 16, 1998, Rauso's first habeas petition (Civ. No.
98-5273) — claiming unlawful denial of parole — was dismissed for
failure to exhaust. On December 4, 1998, he filed a second
petition (Civ. No. 98-6312) — making the identical claim. On
March 1, 1999, that petition was dismissed on the merits.*fn1
An accompanying memorandum concluded — incorrectly — that
exhaustion is inapplicable to a Pennsylvania denial of parole.
No constitutional violation had been alleged. Rauso v. Vaughn,
Civ. No. 98-6312, 1999 WL 111474 at *2 (E.D.Pa. Mar. 1, 1999)
citing, Rogers v. Pa. Bd. of Probation and Parole, 555 Pa. 285,
292, 724 A.2d 319, 323 (Pa. 1999).
On March 31, 1999, on Rauso's motion, the March 1, 1999 order
was vacated, and the petition was summarily dismissed without
prejudice under Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts. See Order, March 31, 1999.
It was noted that exhaustion as to the denial of a parole claim is
On May 10, 1999, Rauso filed a third habeas petition (Civ.
No. 99-2392) — again claiming unlawful denial of parole. It was
this petition that resulted in the order of November 4, 1999
denying the petition as a second or successive petition. Order,
November 4, 1999.
Despite the failure to exhaust, the present petition will be
denied on the merits since no constitutional violation has been
substantiated. See 28 U.S.C.A. 2254(b)(2) (West 1999) ("an
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of an applicant to exhaust the
remedies available in the courts of the State.").*fn4
Here, the petition alleges that the Pennsylvania Board of
Probation and Parole violated Rauso's due process rights by
relying on false or unreliable information, and by acting in
retaliation for his filing lawsuits and grievances against prison
officials. See Hab. Pet. at 16 ¶¶ 28, 29.
The denial of parole itself cannot constitute a procedural
due process violation inasmuch as there is no federal liberty
interest in parole release. See Greenholtz v. Inmates of Neb.
Penal and Correctional Complex, 442 U.S. 1, 7-10, 99 S.Ct. 2100,
60 L.Ed.2d 668 (1979). Furthermore, parole is not a protected
liberty interest in Pennsylvania. See Rogers, 724 A.2d at 323;
Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996).
Some years ago, our Court of Appeals decided that denial of
parole may give rise to a due process deprivation once a state
"decides to provide that which is not constitutionally required to
offer." See Block v. Potter, 631 F.2d 233, 235 (3d Cir. 1980).
Under Block, a parole denial can constitute a due process
deprivation based on factors such as "race, religion, political
beliefs, or . . . frivolous criteria with no rational relationship
to the purpose of parole such as the color of one's eyes, the
school one attended, or the style of one's clothing." Block, 631
F.2d at 236 n. 2.*fn5 What the petition alleges — that parole
was denied in retaliation for his filing lawsuits and grievances
against prison officials — can amount to a due process violation.
See Burkett, 89 F.3d at 140. However, there is no evidence that
Rauso was refused parole for this reason. Instead, the record
shows that the denial was based on nine misconducts and the
failure to participate in a drug and alcohol program. See
Grievance Response No. 1307-98, attached as Exhibit P-17 to
Petitioner's Amended Petitioner for Writ of Habeas Corpus. The
petition does not controvert those facts.
Block also held that the denial of parole can violate equal
protection interests. 631 F.2d at 240. But here, too, the
petition does not allege that petitioner was treated differently
from other similarly situated parole candidates.
Accordingly, the habeas corpus claim must be denied ...