The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly
Robert Hughes ("Petitioner"), is a state prisoner currently incarcerated at the State Correctional Institution in Albion, Pennsylvania ("SCI-Albion"). He has filed a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the "Petition"), in which he claims that the Board of Probation and Parole (the "Board") improperly rescinded his parole. Petitioner seeks an order from this Court reinstating his rescinded parole and for this Court to determine his release date. ECF No. 8 at 15. Because Petitioner fails to show that the state courts' adjudication of his ex post facto claims was contrary to or an unreasonable application of then existing United States Supreme Court precedent, or constituted an unreasonable determination of the facts, and because he fails to show a violation of his substantive due process rights, the Petition will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
Petitioner is a frequent litigator in both federal and state courts.*fn1 Three of the many cases he has filed are related to the instant Petition: 1) Hughes v. Sobina, No. 08-165E, 2009 WL 1597813 (W.D.Pa. June 5, 2009) (habeas petition attacking delay in parole); Hughes v. Pa. Bd. Of Probation and Parole et al., No. 372 M.D. 2009 (Pa. Cmmw. Ct.)(petition for review concerning the Board's action in rescinding Petitioner's parole, which rescission is at issue in this case); and Hughes v. Pa. Bd. Of Probation and Parole et al., No. 24 WAP 2009 (Pa.) (which affirmed the Commonwealth Court order denying Petitioner's petition for review in No. 372 M.D. 2009). The significance of these cases to the instant Petition will be made clear in the review of the history of this case.
On July 19, 1983, Petitioner was sentenced by the Court of Common Pleas of Philadelphia County to a term of imprisonment of 16 to 45 years on convictions of robbery and carrying a firearm in public. His minimum sentence date expired on March 26, 1999, and his maximum sentence date originally was set to expire on March 26, 2028.*fn2
In January 2001, the Board granted Petitioner parole to a Community Corrections Center ("CCC"). His parole commenced on or around April 2, 2001. In September 2001, Petitioner absconded from parole when he left the CCC and failed to return. Less than a month later, he was recaptured and the Board recommitted him as a technical parole violator and it also recalculated his maximum sentence date from March 26, 2028, to April 20, 2028 to account for the time he was delinquent while on parole. Petitioner has never been released on parole again since his recommitment as a technical parole violator.
Several years later, on December 10, 2007, the Board did issue a grant of re-parole to Petitioner to a CCC with the special condition that he receive mental health treatment at the CCC. In accordance with the Board's decision, on January 11, 2008, a Board employee submitted a request to the DOC to place Petitioner in a CCC with mental health treatment. In response, on January 30, 2008, Leslie S. Hatcher, ("Hatcher") Regional Director of the CCCs in Region 1, sent a memorandum to the SCI-Albion Parole Office in which she advised that February 19, 2008, had been established as the parole-release date for Petitioner, and that he was to be released to DRC, Dual Diagnosis, a CCC in Philadelphia.
On February 14, 2008, just days before Petitioner was to be paroled to the CCC, the Parole Office at SCI-Albion postponed his release date because the Institutional Parole Agent assigned to SCI-Albion, named Mr. Weber, had discovered an error in the paperwork (specifically, Petitioner's Sentence Status Summary Sheet) that had been previously submitted to the Board. Weber sent a memorandum to the Board on March 11, 2008, explaining the error and requesting that the Board review the corrected paperwork so that SCI-Albion could release Petitioner to parole. Weber explained the error was that the second offense listed on Petitioner's Sentence Status Summary sheet was incorrectly listed as Theft instead of Robbery.
On February 14, 2008, Petitioner's Sentence Status Summary Sheet was revised to accurately reflect his convictions. On February 19, 2008, Petitioner filed a grievance, concerning the failure to release him to parole on February 19, 2008, in which he claimed that SCI-Albion's Parole Office was retaliating against him. On March 4, 2008, Unit Manager Jim Bentley denied the grievance, explaining that the delay was caused by the error in the Sentence Status Summary Sheet.
On March 5, 2008, Petitioner filed a petition for writ of mandamus in the Commonwealth Court of Pennsylvania in which he contended that SCI-Albion's Parole Office had violated his due process rights by refusing to carry out the Board's order to release him on parole. On May 7, 2008, the Commonwealth Court issued a per curiam order dismissing the case. The Commonwealth Court recognized that a parolee has a vested liberty interest in the limited liberty offered by parole and that parole cannot be taken away without affording the parolee minimal due process guarantees of prior notice and an opportunity to be heard. However, the Commonwealth Court held that there was no due process violation in Petitioner's case because he had not acquired the limited interest in the liberty offered by parole since his parole had not yet been executed. It concluded that Petitioner was merely attacking a discretionary decision that was not subject to judicial review. Petitioner did not appeal the decision of the Commonwealth Court.
Next, on April 30, 2008, the Board reaffirmed its decision of December 10, 2007, in which it had granted Petitioner re-parole. As directed by the Board, Weber submitted a new request to the DOC to place Petitioner in a CCC with mental health treatment on May 7, 2008.
On May 29, 2008, Petitioner filed a petition for writ of habeas corpus, attacking the delay in his re-parole as being retaliatory. Hughes v. Sobina, No. 08-165E (W.D.Pa. ECF. No. 1) ("the 2008 Petition").
On June 6, 2008, Hatcher advised SCI-Albion's Parole Office that October 28, 2008, had been established as Petitioner's new parole release date, and that he was to be released to Gaudenzia First, a CCC in Philadelphia. Weber explained that Petitioner's placement in a CCC took longer than the usual placement because he requires placement in at a facility with a dual-diagnosis program that treats both the issues of mental health and chemical addiction, and CCCs providing these services were then over capacity, which resulted in a significant placement delay.
Petitioner was not released to parole on October 28, 2008. This is because on September 29, 2008, Governor Edward G. Rendell asked the Board and the DOC to implement a parole moratorium and immediately suspend the release of all prisoners who had previously been recommended for parole pending the findings of an independent review by a committee lead by Professor John S. Goldkamp of Temple University (the "Goldkamp Committee"). The issuance of the moratorium was in response to the murders of two Philadelphia police officers by paroled offenders. The Board and the DOC complied with the Governor's request and immediately issued a moratorium on all pending grants of parole. Because of the institution of this moratorium, Petitioner's parole-release date of October 28, 2008 was cancelled.
On October 20, 2008, Governor Rendell requested that the Board and the DOC lift the parole moratorium for non-violent offenders. Since Petitioner had been convicted of robberies, which were considered violent offenses, the lifting of the moratorium did not apply to Petitioner and his grant of parole remained suspended.
On December 1, 2008, the Board and the DOC ended its moratorium on unexecuted grants of parole and began processing violent offenders, such as Petitioner, for release in conformity with the interim recommendations made by the Goldkamp Committee. In processing these unexecuted grants of parole, the Goldkamp Committee's interim recommendations included dividing violent offenders, such as Petitioner, into two groups based on potential public safety risk. Further, the Goldkamp Committee recommended placing high risk, violent offenders into specialized CCCs with violence prevention programming that have on-site parole agents who are trained to work with violent offenders.
By a decision rendered January 9, 2009, the Board modified its original grant of Petitioner's parole of December 10, 2007, to now grant him parole but require that once Petitioner completed mental health treatment in a mental health CCC, he was then to be sent to a to a specialized CCC with violence prevention programming. Subsequently, the Board reconsidered its January 9, 2009, order and decided to grant Petitioner parole just to a CCC with mental health treatment.
On March 16, 2009, the SCI-Albion Parole Office issued a notice to Petitioner that he has a "new bed date" of June 30, 2009, at Gaudenzia First. ECF No. 33 (the "March 16, 2009 Notice"). In the March 16, 2009 Notice, Petitioner was also informed that "You must complete your violence prevention group." Id. Petitioner received that notice on March 18, 2009. Id. Apparently, Petitioner objected to being required to completing the violence prevention group. Hughes v. Sobina, No. 1:08-cv-165 (W.D.Pa. ECF No. 25 at 2, 5).
Respondents, in response to the 2008 Petition, informed the Court that Petitioner would be released to parole at a CCC as soon as there is space available for him at the facility. Id., (ECF No. 22, Response to Petitioner's Motion For Speedy Remedy And Evidentiary Hearing at 5, n.5). Petitioner then informed the Court that the SCI-Albion Parole Office had notified him that he was scheduled to be released to parole on June 30, 2009, and that he would be released to Gaudenzia First.
Magistrate Judge Baxter then issued her ruling in Hughes v. Sobina, No. 08-165E, 2009 WL 1597813 (W.D.Pa. June 5, 2009), finding that Petitioner had failed to sustain his burden to show that the delays in Petitioner's parole release were retaliatory. Accordingly, the 2008 Petition was dismissed. Petitioner did not appeal.
Coincidentally, on the same date as Magistrate Judge Baxter entered her order denying the 2008 Petition, the Board issued an order rescinding the Board's previous decisions of January 14, 2009, April 30, 2008 and December 10, 2007, which had granted Petitioner re-parole. The Board did so "DUE TO [HUGHES'] REFUSAL TO PARTICIPATE IN STIPULATED PROGRAMMING." ECF No. 20-1 at 45. The Board's reference to programming apparently meant the violence prevention group which the SCI-Albion Parole Office informed Petitioner of via the March 16, 2009 Notice. See ECF No. 32 at 5 to 6.
Petitioner challenged the decision of the Board by filing a Petition for Review in the Nature of Mandamus with the Commonwealth Court on July 9, 2009. Hughes v. Pa. Board of Probation and Parole, No. 372 MD. 2009 (Pa. Cmmw. Ct.). Petitioner then filed an Amended Petition for Review on or about July 28, 2009. The Respondents filed Preliminary Objections. Petitioner filed an Answer to the Preliminary Objections. On August 26, 2009, the Commonwealth Court issued its decision, sustaining the Preliminary Objections and dismissing Petitioner's Petition for Review. ECF No. 20-1 at 54 to 55. The Commonwealth Court held that a potential parolee has no right to parole until the parole is actually executed under state law and since Petitioner's parole was not actually executed, the Board had total discretion on whether to go forward with Petitioner's parole and a petition for mandamus cannot be used to compel a discretionary act. Id. The Commonwealth Court also held that there was no ex post facto violation because Petitioner did not demonstrate that the Board's actions have actually or potentially increased Petitioner's punishment. Id.
Thereafter, on September 10, 2009, Petitioner filed an appeal from the Commonwealth Court to the Pennsylvania Supreme Court. Hughes v. Pa. Board of Probation and Parole, No. 24 WAP 2009 (Pa). On April 29, 2010, the Pennsylvania Supreme Court in a one line per curiam order affirmed the Commonwealth Court's order. ECF No. 20-1 at 60.
On August 19, 2010, Petitioner initiated the instant proceedings in this Court by the filing of a Motion to Proceed In Forma Pauperis.*fn3 ECF No. 1. The Petition was filed on September 21, 2010. ECF No. 8. The Respondents filed their Answer. ECF No. 20. Petitioner filed a Traverse and Brief in Support of the Petition. ECF No. 24. The case was subsequently reassigned to the undersigned. ECF No. 26.
The parties have all consented to have the Magistrate Judge exercise plenary jurisdiction. ECF Nos. 2, 23, 25.
The Petition is not a model of clarity as to the specific claims raised by Petitioner.
Petitioner clarified his claims in his Supplemental Brief, ECF No. 29, wherein he ...