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Trivitt v. Klem

December 21, 2006

MITCHELL E. TRIVITT, PETITIONER,
v.
EDWARD KLEM, SUPERINTENDENT, ET AL.,*FN1 RESPONDENTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

I. Introduction

Petitioner, Mitchell E. Trivitt, an inmate at the Mahanoy State Correctional Institution in Frackville, Pennsylvania, commenced the present action by filing a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner claims that the Pennsylvania Board of Probation and Parole ("PBPP"): (1) retroactively applied new requirements for participation in a sex offender program to secure parole, under 42 Pa. C.S.A.. § 9718.1, in contravention of the Ex Post Facto Clause of the United States Constitution; and (2) required Petitioner to acknowledge sex offenses in violation of his Fifth Amendment right against self-incrimination, applicable to the states through the Fourteenth Amendment. Respondents argue that Petitioner's Ex Post Facto claim should be dismissed for failure to exhaust state court remedies and Petitioner's compulsory incrimination claim is without merit. The parties have briefed the issues, and the matter is ripe for disposition. Having carefully considered the parties' contentions, I will deny the petition.

II. Background

In 1994, Petitioner was arrested and charged with sexually assaulting his 15-year-old step daughter over a five-year period. In November of 1995, Petitioner was convicted of the charges of rape, statutory rape, and involuntary deviate sexual intercourse. He was sentenced to a term of imprisonment of five and a half to eleven years on December 12, 1995.

The Pennsylvania Department of Corrections ("DOC") calculated Petitioner's sentence to a minimum expiration date of November 21, 2003, and a maximum expiration date of May 21, 2009. (Dkt. Entry 1, Ex. A.) Based upon the nature of the offenses, Petitioner's prescriptive institutional programming included participation in and completion of a sex offenders program. (Ex. D.)

On August 29, 2003, after review of his file and an interview, Petitioner was considered for and denied parole. The reasons for the denial of parole, expressed in the PBPP Notice of Decision, were:

1) [Petitioner's] refusal to accept responsibility for the offense(s) committed;

2) [Petitioner's] need to participate in and complete additional institutional programs; and

3) [Petitioner's] interview with the hearing examiner and/or Board member.

(Dkt. Entry 1, Ex. B at 1.) The PBPP notified Petitioner that at its next review it would consider whether Petitioner had participated in the sex offenders program, maintained a favorable recommendation from the DOC, maintained a clear conduct record, and completed the DOC prescriptive programs. (Id. at 1-2.)

Petitioner was again considered for and denied parole on September 21, 2004. In its Notice of Decision, the PBPP set forth the following reasons for its decision:

1) The recommendation of the DOC;

2) Petitioner's unacceptable compliance with prescribed ...


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