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Bailey v. Walsh

United States District Court, Third Circuit

December 18, 2013



RICHARD P. CONABOY, District Judge.


This pro se petition for writ of habeas corpus was filed by Terrell Marcel Bailey, a prisoner presently confined at the State Correctional Institution, Dallas, Pennsylvania (SCI-Dallas). Named as Respondents are SCI-Dallas Superintendent Jerome Walsh; the Pennsylvania Board of Probation and Parole (Parole Board); and the Attorney General of Pennsylvania.[1] Service of the Petition was previously ordered.

According to the undisputed record, Bailey was originally convicted of aggravated assault criminal conspiracy and a firearms offense in 1994. Upon completing his minimum sentence, Petitioner was released on parole.

However, while on parole, Petitioner was arrested and convicted of robbery, criminal conspiracy, and drug possession in the Montgomery County, Pennsylvania Court of Common Pleas. As a result, he was sentenced to a five (5) to ten (10) year term of incarceration on August 23, 2005. It also appears that as a result of this new criminal activity, the Parole Board conducted a timely parole revocation hearing.

The minimum sentence on Petitioner's current conviction expired on November 20, 2010, his maximum sentence expires November 20, 2015. In conjunction with the expiration of his minimum sentence, Bailey has been considered and denied parole three times, September 3, 2010, September 30, 2011, and March 30, 2012.

Petitioner's pending action seeks federal habeas corpus relief on the grounds that the Parole Board "applied unconstitutional reasons" in denying his application for parole. See Doc. 1, ΒΆ 6. Bailey's Petition asserts that the Parole Board acted in an arbitrary and capricious manner by denying him parole on March 30, 2012 based upon his past criminal history, past unsatisfactory parole supervision, and other facts, that will never change.


Respondents acknowledge that Petitioner's most recent parole decision, dated March 30, 2012, denied Bailey parole on the basis of two factors: (1) his risk and needs assessment indicating his level of risk to the community; and (2) his prior unsatisfactory parole supervision history. See Doc. 1, Exhibit A. In addition, the decision advised Petitioner that he would be reconsidered for parole on or about July, 2014 or earlier if recommended by the Department of Corrections (DOC). The decision also forewarned Bailey that during his next review, the Parole Board would consider whether the inmate had received a favorable parole recommendation from the DOC and if he had maintained a clear conduct record.

The response argues that Petitioner is not entitled to relief since he has no right to parole and because the reasons relied upon by the Parole Board's latest adverse decision were appropriate and satisfied the due process requirements recognized by Pennsylvania state law. Respondents add that there is no basis for a finding that the Parole Board was biased, or acted in an arbitrary or capricious manner.

It is well-settled that "there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Nebraska Penal & Correctional Complex , 442 U.S. 1, 7 (1979); see also Rauso v. Vaughn , 79 F.Supp.2d 550, 551 (E.D. Pa. 2000) (the federal Constitution does not create an entitlement to parole). Likewise, the Pennsylvania parole statute does not create a liberty interest in the right to be paroled. Rodgers v. Parole Agent SCI-Frackville, Wech , 916 F.Supp. 474, 476-77 (E.D. Pa. 1996); McCrery v. Mark , 823 F.Supp. 288, 294 (E.D. Pa. 1993); Thorpe v. Grillo , 80 Fed.Appx. 215, 2003 WL 22477890 (3d Cir. 2003) (because there is no constitutional right to parole, any substantive due process claim is foreclosed); Perry v. Vaughn , 2005 WL 736633 at *10 (E.D. Pa. March 31, 2005).

However, the United States Court of Appeals for the Third Circuit has also held that:

[E]ven if a state statute does not give rise to a liberty interest in parole release under Greenholtz, once a state institutes a parole system all prisoners have a liberty interest flowing directly from the due process clause in not being denied parole for arbitrary or constitutionally impermissible reasons.

Block v. Potter , 631 F.2d 233, 236 (3d Cir. 1980). Accordingly, even where a state statute grants discretion to the state parole board to condition or completely deny parole, it may not permit "totally arbitrary parole decisions founded on impermissible criteria." Id . Consequently, a federal court may review a decision by a state parole board for an abuse of discretion. Id . Upon such review, relief will only be available if an applicant can show that parole was arbitrarily denied based on some impermissible reason such as "race, religion, or political beliefs, " or that ...

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