The opinion of the court was delivered by: Judge Kosik
Steven Watkins filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and memorandum in support thereof on May 22, 2006. (Docs. 1, 2.) He is currently confined at the State Correction Institution at Frackville, Pennsylvania, and has paid the required filing fee. Named as Respondents are Robert Shannon, Superintendent at SCI-Frackville, and the Pennsylvania Board of Probation and Parole ("Board"). In the petition, Watkins contends that the Parole Board's decisions denying him parole were arbitrary, capricious, an abuse of discretion and not supported by the record. As such, he claims he was denied due process in violation of the Fifth and Fourteenth Amendments of the United States Constitution.*fn1 He does not dispute the fact that he has not attempted to exhaust his claims. Following an enlargement of time, a response to the petition, supporting memorandum and exhibits were submitted by Respondents on July 14, 2006. (Docs. 15, 16.) Watkins filed a reply to the responsive materials on July 31, 2006. (Doc. 17.) The petition is ripe for consideration and, for the reasons that follow, will be denied.
Petitioner has convictions dating back to 1985 in Philadelphia County, Pennsylvania on charges of aggravated assault and criminal trespass. (Doc. 15, Ex. A.) He was paroled on May 11, 1988 with respect to these crimes and, while on parole, committed other crimes for which he was detained pending disposition of the new crimes. (Id., Ex. B.) Petitioner was subsequently convicted on the new crimes of simple assault, aggravated assault, two counts of rape, possessing an instrument of a crime, involuntary deviate sexual intercourse and robbery. (Id., Ex. D.) He received an aggregate sentence of 11 years 6 months to 23 years. (Id., Ex. E.) On April 13, 1994, the Parole Board recommitted Petitioner as a technical and convicted parole violator on his initial sentence and ordered him to serve 24 months of backtime. (Id., Ex. F.) This Order was later modified by the Board on August 1, 1994, directing that Petitioner serve 3 years, 11 months and 8 days on the recommital time with the expiration of the parole violation maximum sentence on November 24 ,1997. (Id., Ex. G.) The new sentences had an effective date of September 27, 1992, with an expiration of the minimum sentence on March 27, 2004, and the maximum sentence occurring on September 27, 2015. (Id.)
The Parole Board thereafter reviewed and refused reparole to Petitioner in January 2004, October 2004, September 2005 and March 2006. (Doc. 2, Exs. B-E; Doc. 15, Exs. H-K.) Petitioner filed the instant habeas corpus action on May 22, 2006, challenging these reparole denials on the basis that the Parole Board's decisions were arbitrary, capricious, an abuse of discretion and unsupported by the record. (Doc. 1, Pet. at 6.)
Dismissal of the petition is sought by Respondents on the basis that Petitioner has failed to exhaust his available state court remedies. In the alternative, Respondents maintain that the claims raised in the petition lack merit.
Respondents first contend that Petitioner was required to exhaust his state court remedies, via a writ of mandamus, prior to filing the instant § 2254 petition. Petitioner argues that state court remedies are not available for claims of constitutional violations in parole decisions. In support of his argument, Petitioner cites to the Third Circuit Court of Appeals decision in DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), cert. denied, 125 S.Ct. 2970 (2005). The court must agree with Petitioner in that the Third Circuit has held "... that claims of constitutional violations in the denial of parole in Pennsylvania need not be presented to the state courts via a petition for writ of mandamus in order to satisfy the requirement of exhaustion." DeFoy, 393 F.3d at 445. While Respondents attempt to distinguish DeFoy by arguing that the Third Circuit only addressed whether exhaustion was required in the context of bringing a Fifth Amendment challenge, this court interprets the holding in DeFoy to be much broader - - including all claims of constitutional violations with the exception of ex post facto claims which still require exhaustion under the principles set forth in DeFoy. See Porter v. Grace, 1:CV-05-0681 at 3 (M.D. Pa. March 13, 2006)(Caldwell, J.). While Respondents then attempt to argue that Petitioner could have reasonably believed he still needed to seek a writ of mandamus prior to filing his claim in federal court, the court disagrees. The DeFoy decision was issued in January of 2005 and the instant petition was not filed here until May of 2006. Based upon such, there clearly existed a reasonable basis for Petitioner to believe he did not have to exhaust his due process claims prior to filing his habeas action in federal court.
B. Merits of Due Process claims
The gravamen of the instant petition is the Parole Board's alleged violation of Petitioner's Fifth and Fourteenth Amendment due process rights in denying him reparole on the basis that the Board's actions were arbitrary, capricious, an abuse of discretion and without support in the record. The court disagrees. The Due Process Clause applies only when the government deprives a person of liberty or property. "[T]here is no constitutional or inherent right to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Correctional Complex, 442 U.S. 1, 7 (1979). Additionally, while a state may create a liberty interest which is protected by the Due Process Clause, see Sandin v. Connor, 515 U.S. 472, 484 (1995), Pennsylvania has created no such interest within its discretionary parole system. See Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996). Instead, parole is considered to be "a matter of grace and mercy shown to a prisoner who has demonstrated to the Parole Board's satisfaction his future ability to function as a law-abiding member of society upon release before the expiration of the prisoner's maximum sentence." See Rogers v. Pennsylvania Bd. of Probation and Parole, 724 A.2d 319, 322-23 (Pa. 1999). There simply is no constitutionally protected liberty interest in the expectation of being paroled. As such, the denial of parole itself cannot constitute a procedural due process violation inasmuch as there is no liberty interest in parole release. Thus, any such claim by Petitioner is wholly without merit.
A parole denial can, however, give rise to a substantive due process deprivation if it is based on constitutionally impermissible reasons. See Burkett v. Love, 89 F.3d at 139-140. The Board may not base a parole decision on factors bearing no rational relationship to the interests of the Commonwealth. Id. citing Block v. Potter, 631 F.2d 236 (3d Cir. 1980). Even though the granting of parole is discretionary, the Parole Board cannot act in a manner which is arbitrary. See Hargrove v. Pennsylvania Bd. of Probation and Parole, Civ. No. 99-1910, 1999 WL 817722, *7 (E.D. Pa. Oct. 12, 1999). Federal courts, however, "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). A substantive due process violation will be found where the Parole Board grounds its actions on "constitutionally impermissible reasons." Burkett at 139-140. In the instant case, there is nothing in the record to suggest that the Board based its denials of parole on unconstitutional grounds. Rather, the record reveals that a rational basis for the challenged decisions does exist.
The reasons, as set forth by the Parole Board in each of its decisions denying parole, are not outside the Board's discretion, which is very broad. The reasons for denial of parole set forth in January 2004 included the following: two or more Class I Misconducts within the last 12 months or the last one-half of the minimum, whichever is longer; substance abuse; habitual offender; assaultive instant offense; very high assaultive behavior potential; victim injury; weapon involved in the commission of the offense; Petitioner's need for treatment; and an unfavorable recommendation from the DOC. Each of these factors was a permissible consideration. The Board recommended that Petitioner participate in sex offender treatment and maintain a clear conduct record prior to his next parole review. (Doc. 15, Ex. A, 1/04 denial.) The next review took place in October of 2004. Parole was denied based upon the following considerations: Petitioner's version of the nature and circumstances of the offense committed; the DOC's recommendation; Petitioner's prior history of supervision failures; reports, evaluations and assessments concerning Petitioner's physical, mental and behavior condition and history; Petitioner's need to participate in and complete additional institutional programs; Petitioner's institutional behavior, including reported misconducts or CCC failure; and his interview with the Board member/Hearing Examiner. Petitioner was ...