LUSIK v. SAUERS et al
ORDER THAT THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED; THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITH PREJUDICE; PETITIONER'S MOTIONS (DOC. NOS. 4,5,7,16,17,21) ARE DENIED; THERE IS NO PROBABLE CAUSE TO ISSUE A CERTIFICATE OF APPEALABILITY AND THE CLERK OF COURT SHALL MARK THIS CASE CLOSED. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 7/30/14. 7/30/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER AND E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WARDEN DEB K. SAUERS, et al.,
AND NOW, this 30th day of July, 2014, upon careful and independent consideration of
the petition for writ of habeas corpus, and after review of the Report and Recommendation of
United States Magistrate Judge Timothy R. Rice, and Petitioner’s objections, we find as follows:
FACTUAL AND PROCEDURAL HISTORY
1. On January 18, 1995, Petitioner, David Lusik, was convicted of deviant sexual
intercourse and other related offenses, and was sentenced to an aggregate term of
eleven-to-thirty years of imprisonment. Based on testimony from the five and six year
old victims, the jury found Petitioner guilty of engaging in forcible oral sex with the
daughters of his then-girlfriend while the victims’ mother held their mouths open.
2. Petitioner has been denied parole on five separate occasions, the first time on May 26,
2005. The Parole Board listed the following reasons for Petitioner’s first denial:
Your version of the nature and circumstances of the offense(s) committed.
Your refusal to accept responsibility for the offense(s) committed.
Your lack of remorse for the offense(s) committed.
The recommendation made by the Department of Corrections.
Your unacceptable compliance with prescribed institutional programs.
Your institutional behavior, including reported misconducts or CCC failure.
Your interview with the hearing examiner.
(Commonwealth Answer ¶ 7 (Doc. 11)). The Parole Board cited similar reasons for his
second denial on April 26, 2007. (Id. ¶ 8). On May 6, 2010, Petitioner was denied parole
for a third time for the following reasons:
Your need to participate in and complete additional institutional programs;
Your institutional behavior, including reported misconducts;
The negative recommendation made by Department of Corrections;
Your failure to demonstrate motivation for success; and
Your refusal to accept responsibility for the offense(s) committed.
(Id. at ¶ 11). Petitioner was denied parole again on July 6, 2011. In addition to most
factors listed above, the Parole Board cited assessments that had “indicat[ed]
[Petitioner’s] risk to the community.” (Id. ¶ 19). Most recently, Petitioner was denied
parole again on August 13, 2013, for the same reasons. (Id. ¶ 21). Petitioner will be
reviewed again for parole in 2015.
3. As Magistrate Judge Rice explained in his Report and Recommendation, this habeas
petition is deemed filed on May 5, 2013. In it, Petitioner claims that (1) denial of parole
violated of his Fifth Amendment right against self-incrimination and (2) the Parole
Board violated the Ex Post Facto Clause by denying him parole based on amendments to
parole and sex offender statutes that were enacted after his conviction and sentencing. In
addition, Petitioner has filed several motions seeking discovery and other relief.
4. Magistrate Judge Rice recommends we not dismiss the petition on procedural grounds,
despite the Commonwealth’s argument that Petitioner’s claims are unexhausted and
moot. (Report and Recommendation at p. 4-5). Because neither the Commonwealth nor
We review de novo those parts of Magistrate Judge Rice’s Report and Recommendation to
which Petitioner has objected. 28 U.S.C. § 636 (b)(1).
Petitioner has objected to this recommendation, we will proceed with reviewing the
merits of Petitioner’s arguments.
5. Petitioner has objected to the Report and Recommendation on six grounds: (1)
Magistrate Judge Rice is biased against Petitioner and has a conflict of interest because
of an ongoing civil action in which Petitioner claims Judge Rice is a material witness;
(2) Magistrate Judge Rice failed to rule on three subsequent motions since the filing of
his original petition; (3) Requiring Petitioner to complete a sex offender treatment
program contingent upon his admission of guilt in order to be recommended for parole
violates his Fifth Amendment right against self-incrimination because he is maintaining
his innocence and believes it impacts his current civil litigation; (4) The Parole Board
violated the Ex Post Facto Clause when denying him parole because standards were
allegedly used from statutes enacted subsequent to Petitioner’s conviction; (5) Due
process, retaliation, stigma, abuse, cruel and unusual punishment, and equal process; (6)
Petitioner requests documents, discovery, evidentiary hearing, and appointment of
counsel. (See Doc. 25 ¶¶ 1-6).
6. A motion charging bias is governed by 28 U.S.C. § 144, which permits a party to file an
“affidavit that the judge before whom the matter is pending has a personal bias or
prejudice against him or in favor of any adverse party.” The factual basis for Petitioner’s
objection is Judge Rice’s involvement in preparing a report and recommendation for
Petitioner’s previous unsuccessful habeas petition, as well as Judge Rice’s supposed
status as a “material witness” in a civil case filed by Petitioner. It is not clear what
information Petitioner believes Judge Rice to have, and it seems unlikely that Judge Rice
will actually be called upon to provide testimony.2
7. In any event, Petitioner’s charge of bias, made only after receiving an unfavorable
Recommendation from Judge Rice, is untimely. Motions under 28 U.S.C. § 144 must be
made “not less than ten days before the beginning of the term at which the proceeding is
to be heard,” unless there is good cause for the delay. Petitioner’s wait-and-see approach
fails by this metric. See United States v. Rosenberg, 806 F.3d 1169, 1173 n.3 (3d Cir.
1986) (“A disqualification motion filed after trial and judgment is usually considered
untimely unless good cause can be shown for the delay, for otherwise a party alleging
bias would always await judgment in the hopes of a favorable decision.”). This objection
OBJECTION: VIOLATION OF THE FIFTH AMENDMENT
8. Petitioner objects to Magistrate Judge Rice’s conclusion that being required to admit
guilt as part of a sex offender treatment program does not violate his Fifth Amendment
right against compelled self-incrimination. We agree with the Report and
Recommendation that Petitioner has failed to show the level of pressure placed on him
to admit his guilt rises to the level of unconstitutional compulsion. Petitioner must be
able to show that the penalties flowing from his refusal to admit his guilt are so severe as
to “compel [him] to speak about his past crimes despite a desire to remain silent.”
Petitioner has filed a lot of cases, most if not all of which have been dismissed at the pleading
stage. As one district judge opined, Petitioner appears to be a “frequent filer who is attempting to
waste the time of the federal courts by suing any individual who has ever been a part of his
criminal case.” Lusick v. City of Phila, No. 12-cv-5150, doc. no. 35; see also Lusick v. City of
Phila., 549 Fed. Appx. 56, 58 n.6 (3d Cir. 2013) (“Lusick has continued in this Court his practice
of filing numerous frivolous motions.”)
McKune v. Lile, 536 U.S. 24, 36 (2002). Consequences that “merely alter the degree of
comfort or freedom that an inmate is afforded, within the context of his confinement, but
otherwise remain within the permissible bounds of the inmate’s prescribed sentence,” do
not amount to compulsion. Roman v. DiGuglielmo, 674 F.3d 204, 214 (3d Cir. 2012).
On the other hand, consequences that “strike at the core of an inmate’s recognized
entitlements, which may threaten his bodily safety, or impose additional punishment
beyond which has already been implemented by a fair judicial process, do constitute
impermissible compulsion.” Id.
9. The Third Circuit has concluded, under nearly identical circumstances, that the repeat
denial of parole for refusal to participate in a sex offender treatment program requiring
an admission of guilt is not a severe enough consequence to constitute compulsion. Id.;
see also Thorpe v. Grillo, 80 Fed. Appx 215, 219-20 (3d. Cir. 2003) (finding no
unconstitutional compulsion where refusal to admit guilt “did not extend [inmate’s] term
of . . . incarceration or automatically deprive him of consideration for parole”).
Petitioner’s refusal to admit his guilt has not increased the term of imprisonment to
which he was lawfully sentenced. At most, it has eliminated Petitioner’s chance for early
release on parole, a benefit to which he has no right or entitlement under Pennsylvania
law. The choice between maintaining his innocence and participating in a program that
might offer a chance of early release may be a difficult one, but it is not one that
“compel[s]” him to speak in a constitutional sense, at least not in the context of a “prison
program designed to further Pennsylvania’s legitimate interest in rehabilitating inmates
who have been convicted of sexual offenses.” Roman, 674 F.3d. at 215. Accordingly,
Petitioner’s objection is overruled.
OBJECTION: VIOLATION OF THE EX POST FACTO CLAUSE
10. Petitioner next objects on ground that the Parole Board violated the Ex Post Facto
Clause (U.S. Const. art. I § 10, cl. 1) by applying two parole statutes that were enacted
after the acts that lead to his conviction. See 61 Pa. C.S. § 6101 et seq.3 (parole statute
amended to make public safety a primary concern of the parole board when reviewing
early release of inmates); 42 Pa.C.S.A. § 9718.1(a) (a convicted sex offender “shall not
be eligible for parole unless the offender has… participated in a Department of
Corrections program of counseling or therapy designed for incarcerated sex offenders”).
11. In order for Petitioner to succeed on his Ex Post Facto claim he must demonstrate that:
(1) there was a change in law or policy which has been given a retrospective effect and,
(2) that he was specifically disadvantaged by the change. Richardson v. Pennsylvania
Bd. Of Probation and Parole, 423 F.3d 282, 287-88 (3d Cir. 2005). Satisfying both
prongs of an Ex Post Facto claim has proved exceedingly difficult for parole seekers,
because parole boards generally are given vast discretion in implementing parole
policies, and “have the capacity, and the obligation, to change and adapt based on
experience.” Garner v. Jones, 529 U.S. 244, 253 (2000).
12. The Third Circuit set a high bar for a successful Ex Post Facto claim in the parole
context in Mickens-Thomas v. Vaughn, a case in which a petitioner was able to prove
that the 1996 amendments to the parole statute had in fact worked to his disadvantage.
321 F.3d 374 (3d Cir. 2003). To do so, the petitioner presented detailed statistical
evidence of parolees before and after the 1996 parole statute was amended, and was able
As Judge Rice noted in his Report and Recommendation, the 1996 Parole Act at 61. P.S. §
331.1 et seq., has since been repealed and replaced by the Prisons and Parole Code at 61 Pa. C.S.
§ 6101 et seq. The new code, however, is substantially the same as the Parole Act.
to prove he would have been paroled under the prior statute. Id. at 385. Specifically, the
petitioner pointed out that all 266 similarly situated inmates were paroled prior to the
1996 amendment, but that he had been denied parole following the amendment. Id. In
contrast, the Third Circuit found no Ex Post Facto violation where a parole board denied
an inmate parole for several reasons not related to public safety (the focus of the
amended parole statute) and the inmate was unable to show “the degree to which the
1996 amendments impacted [his] parole determination.” Richardson v. Pennsylvania
Bd. of Probation and Parole, 423 F.3d 282, 293 (3d Cir. 2005).
13. Petitioner’s case is most analogous to Richardson, in that there were a multitude of
factors for his parole denial, many of which raise no Ex Post Facto issues. Magistrate
Judge Rice correctly explained that Petitioner has failed to meet his burden to show that
there is a likelihood he would have been paroled under the pre-1996 parole statute.
Indeed, Petitioner has not presented any evidence to that effect. As such, we overrule
14. Petitioner has filed six motions since his initial habeas petition. We discuss only one of
them, as the rest are either frivolous or irrelevant to the issues raised in the petition.5 The
remaining motion we interpret as seeking documents related to his Ex Post Facto claim
(a request seeking any other documents would be meritless). To obtain discovery in
support of a habeas petition, the petitioner must be able to show “good cause” for the
request, which may be shown by specific factual allegations that would entitle him or
Petitioner’s blanket objection to the Report and Recommendation “on grounds of due process,
retaliation, stigma, abuse, cruel and unusual punishment, [and] equal process [sic]” are overruled
because Petitioner has failed to provide any basis for them.
Doc. Nos. 4, 7, 16, 17, 21, and 24.
her to relief if fully developed. Williams v. Beard, 637 F.3d 195, 209 (3d Cir. 2011).
Here, petitioner has not provided such allegations, and is thus not entitled to discovery
or an evidentiary hearing. See Richardson, 423 F.3d at 295 (no evidentiary hearing
needed where Petitioner “provided no evidence, and for that matter… proffered no
allegation, that [he faced] a ‘significant risk’ of increased punishment”). For these
reasons, we adopt the Report and Recommendation in full, overrule Petitioner’s
objections, and deny all pending motions.
WHEREFORE, it is hereby ORDERED that:
The Report and Recommendation is APPROVED and ADOPTED;
The petition for a writ of habeas corpus is DENIED WITH PREJUDICE;
Petitioner’s motions for documents, discovery, an expansion of the record, an
evidentiary hearing, and appointment of counsel (Doc. No. 4, 5, 7, 16, 17, 21) are
There is no probable cause to issue a certificate of appealability; and
The Clerk of Court is directed to mark this case CLOSED.
BY THE COURT:
/s/ Mitchell S. Goldberg
MITCHELL S. GOLDBERG, J.
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