On Appeal from the District Court for the Eastern District of Pennsylvania (No. 2:05-cv-05771) District Judge: Honorable Anita B. Brody
The opinion of the court was delivered by: Fuentes, Circuit Judge:
Argued on October 5, 2011
Before: McKEE, Chief Judge, FUENTES and GREENBERG, Circuit Judges
Martin Roman was convicted of indecent assault and corruption of a minor, both crimes involving his daughter, and is currently a prisoner of the Pennsylvania Department of Corrections. As part of his sentence, the State of Pennsylvania recommended that Roman participate in a sex offender treatment program. In order to do so, he is required to admit that he committed the sex crime for which he was convicted. Roman has refused to participate in the program because, he contends, any such admission would constitute compelled self-incrimination in violation of the Fifth Amendment and would have compromised his then-pending appeal of his sex offense conviction. Based on his refusal to participate, Roman repeatedly has been denied parole. The primary issue before us is whether the State‟s decision to deny Roman parole, unless he admits his guilt and participates in the sex offender treatment program, violates his Fifth Amendment right against self incrimination. We hold that it does not.
In 1977 a jury found Roman guilty of two counts of third-degree murder. He received an aggregate sentence of 15-30 years. Roman was released on parole in 1992, shortly after his minimum release date. Eight years later, while still on parole for the homicide conviction, Roman was accused of inappropriately touching his six-year-old daughter. He was charged with endangering the welfare of a child, corruption of a minor, unlawful restraint, simple assault, recklessly endangering another person, false imprisonment, and indecent assault.
Ultimately, Roman was convicted of indecent assault and corruption of a minor in 2001, and was sentenced to serve 16-32 months in a state correctional facility, to be followed by two years‟ probation. The sentencing report recommended that he serve his sentence at a facility offering treatment for "Sexual Offenders and Abusers."
Following Roman‟s 2001 conviction, the Pennsylvania Board of Probation and Parole (the "Board") met and determined that Roman‟s conduct violated the terms of his parole from his homicide conviction. The Board ordered him to serve backtime and the remainder of his sentence for murder, pending parole, prior to beginning his sentence for his 2001 conviction. The Board‟s decision stated that, "[w]hile confined, [Roman] must comply with the institution‟s prescriptive program requirements and have no misconducts. [Roman] must participate in sex offender treatment." (App. 74.) Pennsylvania‟s sex offender treatment program requires that an inmate admit guilt for the offending conduct in order to participate. Roman says that he refused to participate because admitting his guilt could have jeopardized his then-pending appeal of his conviction for indecent assault and corruption of minors.
The Board first denied Roman parole in August 2003, following a
hearing. In its decision, the Board considered Roman‟s version of the
nature and circumstances surrounding his homicide offense,*fn1
his prior history of parole failure, and his unacceptable
compliance with the sex offender treatment
program prescribed to him in his sentencing. The Board stated that in
Roman‟s next review it would consider "whether [Roman had]
participated in/successfully completed a treatment program for: sex
offenders" and whether prison officials still recommended him for
parole. (App. 84.)
The Board denied Roman parole a second time in August 2004, citing the same factors it relied on in its 2003 decision. It again listed Roman‟s failure to complete the prison sex offenders program as one of the bases for its decision, and again stated that it would consider whether he had completed the program as part of its next review of his eligibility for parole.
Roman sought review of these parole denials in the Commonwealth Court of Pennsylvania, requesting a writ of mandamus directing the Board to "correct [its] misapplication of the law." (App. 88.) The Court dismissed his petition, finding that the Board had acted within the scope of its discretion. Roman v. Pennsylvania Board of Probation and Parole, No. 682 M.D. 2004 (Pa. Commw. Ct. Dec. 13, 2004). The Pennsylvania Supreme Court affirmed that decision the following year. Roman v. Pa. Bd. of Probation & Parole, 881 A.2d 1263 (Pa. 2005). Roman did not assert a Fifth Amendment claim during either of those proceedings.
In November 2005, Roman filed a pro se petition for habeas corpus in the Eastern District of Pennsylvania, arguing that the Board "violate[d the] constitutional . . . protections of the ex post facto clause when it ordered Mr. Roman to participate in a sex offender program before considering his parole application of the 1977 conviction in violation of the Fifth and Fourteenth Amendments." At the time he filed his petition, Roman‟s appeal of his 2001 conviction for indecent assault and corruption of minors was still pending in state court.*fn2
Roman‟s petition was assigned to a Magistrate Judge, who issued a Report and Recommendation stating that Roman had failed to exhaust his claims in state court, as required under federal habeas law. In the alternative, he found that Roman‟s petition failed on the merits. The Magistrate Judge interpreted Roman‟s claim as an ex post facto challenge and determined that, because Roman could not demonstrate ...