King v. PA Board of Prob. & Parole et al
Filing
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MEMORANDUM re Petition for Writ of Habeas Corpus 1 filed by Kevin King (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/20/17. (ma)
UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN KING,
Petitioner
vs.
PA BOARD OF PROB. & PAROLE, et
al.,
Respondents
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CIVIL NO. 1:CV-16-0218
(Judge Caldwell)
MEMORANDUM
I.
Introduction
Kevin King, a state prisoner, presently housed at the Dallas State
Correctional Institution (SCI-Dallas), in Dallas, Pennsylvania, filed this pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. In the Petition, he claims the
Pennsylvania Board of Probation and Parole (the Board) has “denied [him] Due Process of
Law, in that he has a liberty interest under the 14th Amendment to be paroled on his
minimum term.” (ECF No. 1, Pet., p. 5). As relief, he seeks his immediate release on
parole. (Id., p. 14).
We have jurisdiction under section 2254 to entertain constitutional
challenges to parole decisions, see 28 U.S.C. § 2254(a); Coady v. Vaughn, 251 F.3d 480,
485 (3d Cir. 2001), but for the reasons that follow, the Petition will be summarily denied.
II.
Background
King alleges the following. He was convicted on August 1, 2007, in the Court
of Common Pleas of Luzerne County, Pennsylvania, on two counts of Aggravated
Assault, Recklessly Endangering Another Person, and Firearms not to be Carried without
a License. (ECF No. 1, p. 1). On September 4, 2007, he was sentenced to nine to
eighteen years of imprisonment. (Id.)
King completed various institutional programs while serving his nine-year
minimum. (ECF No. 2, Mem. in Supp. of Pet., p. 3). He also managed to remain
misconduct free. (Id.) On July 31, 2015, he was scheduled to see the Board. At his
parole hearing, he expressed genuine remorse for his crime. The Luzerne County District
Attorney’s Office failed to respond to the Board’s inquiry as to whether it objected to King’s
receiving parole. (Id., p. 4). King was denied parole.
The Board issued a decision on August 31, 2015. (Id.) The Board noted the
following reasons for denying King parole:
* Need to participate in additional institutional programs;
* The risk and needs assessment indicating your level of risk to
the community.
* Reports, evaluations and assessments/level of risk indicates
your risk to the community.
* Minimization/denial of the nature and circumstances of the
offense(s) committed.
* The refusal to accept responsibility for the offense(s) committed.
* The lack of remorse for the offense(s) committed.
* To be reviewed in or after August 2017.
* At the next interview, the Board will review the file and consider
whether Plaintiff have (sic) successfully participated
in/successfully completed a treatment program for Batterer’s
Intervention and violence prevention.
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(Id.) King completed a High Intensity Violence Prevention program on April 9, 2014, and
was enrolled in a Batterer’s Intervention at the time of his parole hearing, which he later
completed. (Id., p. 5).
King argues that he, as a Pennsylvania prisoner, has a right to parole at the
expiration of his minimum sentence and the Board overstepped its authority by denying
him parole. (Id., p. 15).
III.
Discussion
Habeas corpus petition are subject to summary dismissal pursuant to Rule 4
(“Preliminary Consideration by the Judge”) of the Rules Governing Section 2254 Cases in
the United States District Courts, 28 U.S.C. foll. 2254. Rule 4 provides, in pertinent part,
“[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief in the district court, the judge must dismiss the petition and direct the clerk
to notify the petitioner.” Pursuant to Rule 4 preliminary review, a petition may be
dismissed without requiring an answer “‘when the petition is frivolous, or obviously lacking
in merit, or where . . . the necessary facts can be determined from the petition itself.’”
Gorko v. Holt, No. 4-CV-5956, 2005 WL 1138479, at *1 (M.D. Pa. May 13, 2005)(quoting
Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)). “Federal courts are authorized to
dismiss summarily any habeas petition that appears legally insufficient on its face.”
McFarland v. Scott, 512 U.S. 849, 856, 114 S.Ct. 2568, 2572, 129 L.Ed.2d 666 (1994).
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The granting of parole before the expiration of a prisoner’s maximum term is
not a liberty interest under the Due Process Clause. Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979); Newman v. Beard,
617 F.3d 775 (3d Cir. 2010). Likewise, Pennsylvania state law does not create a liberty
interest for state inmates to be released prior to the expiration of a valid sentence that is
protected by federal due process. Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996)(parole
is not a constitutionally protected liberty interest under Pennsylvania law); Rogers v. Pa.
Bd. of Prob. & Parole, 555 Pa. 285, 292, 724 A.2d 319, 323 (Pa. 1999)(“parole is a matter
of grace and mercy shown to a prisoner who has demonstrated to the Parole Board’s
satisfaction his future ability to function as a law-abiding member of society upon release
before the expiration of the prisoner’s maximum sentence.”); see also Weaver v. Pa. Bd.
of Prob. & Parole, 688 A.2d 766, 770 (Pa. Commw. Ct. 1997)(under Pennsylvania law,
parole is a favor, and the prisoner has no protected liberty interest in being released
before a legitimately imposed sentence has expired.) Thus, absent the creation of a
liberty interest in parole, a state’s decision to deny parole does not create any procedural
due process protections.
The authority to grant parole under Pennsylvania law is vested solely in the
Board. See 61 PA. CON. STAT. ANN. § 6135. As such, the Board is required to consider
the nature and character of the offense(s), the general character and history of the
prisoner, the written or personal statement or testimony of the victim or victim’s family, and
the recommendations o f the trial judge, the district attorney and each warden or
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superintendent who has had control over the applicant. See 61 PA. CON. STAT. ANN. §
6135.
Although a parole-eligible Pennsylvania inmate has no protected liberty
interest in parole that implicates procedural due process, the Third Circuit recognizes that
parole cannot be denied on constitutionally impermissible grounds. See Burkett, 89 F.3d
at 139-40. For instance, the Board may not arbitrarily deny parole on the basis of race,
religion, the exercise of free speech, or on criteria with no rational relationship to the
purpose of parole. Block v. Porter, 631 F.2d 233, 236-37 (3d Cir. 1980). “When the
Parole Board bases its decision on factors that bear no rational relationship to
rehabilitation or deterrence, it transgresses the legitimate bounds of its discretion.” Id. at
637. The relevant level of arbitrariness required is not merely action that is unreasonable,
but rather, something more egregious, “action that shocks the conscience.” Goodman v.
McVey, 428 F. App’x 125 (3d Cir. 2011) (nonprecedential)(citing Kaucher v. Cnty. of
Bucks, 455 F.3d 418, 425 (3d Cir. 2006)). The “official conduct most likely to rise to the
conscience-shocking level is the conduct intended to injure in some way unjustifiable by
any government test.” Chavez v. Martinez, 538 U.S. 760, 775, 123 S.Ct. 1994, 2005, 155
L.Ed.2d 984 (2003). Finally, the Third Circuit has stressed that “federal courts are not
authorized by the due process clause to second-guess parole boards and the
requirements of substantive due process are met if there is some basis for the challenged
decision.” Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001); see also Newman, 617
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F.3d at 782 (“The conduct must be intended to injure in some way unjustifiable by any
government interest[.]”) (internal quotations and citations omitted).
Here, King argues that the Board violated his due process rights by not
releasing him on parole at the expiration of his minimum sentence. He suggests the
Board’s action overrides his state-created liberty interest in parole. He is mistaken as the
Board has full authority to grant or deny him parole. See 61 PA. CON. STAT. ANN. § 6135.
King concedes he is serving a nine-to-eighteen-year sentence that has not yet expired.
Parole prior to the expiration of his maximum term, eighteen years, is not mandated by the
Constitution or state law.
To the extent King argues that the Board’s decision to deny him parole was
arbitrary and capricious, such a claim is equally meritless. While King may disagree with
the Board’s rationale for denying him parole, especially in light of his misconduct-free
incarceration and institutional programming, he does not identify what arbitrary or
constitutionally impermissible reasons he believes the Board considered in denying him
parole. Instead, his argument is strictly based on his belief that he has satisfactorily
fulfilled all of the Board’s prerequisites/demands for parole (i.e., acceptance of
responsibility for offenses committed; genuine remorse; completion of specific
programming such as High Intensity Violence Prevention and Batterer’s Intervention), and
yet was denied parole. The fact that King argues that he personally believes he has/had
fulfilled the Board’s requirements for parole does not make its denial of parole improper.
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Moreover, it cannot be disputed, based on King’s presentation of the facts,
that there was “some basis” for the Board’s decision to refuse him parole. King lists the
reasons given by the Board for denying him parole. The court cannot find that the Board’s
stated reasons for denying King parole were not rationally related to the legitimate
interests of the Commonwealth or inconsistent with the legitimate factors established by
the Pennsylvania legislature. (ECF No. 2, p. 4).
Based on the above, the court will deny King’s Petition alleging that the
Board violated his due process rights by denial of parole at the expiration of his minimum
sentence.
IV.
Conclusion
We will issue an order denying the section 2254 petition. The order will also
deny a certificate of appealability, based on the analysis in this memorandum. However,
King is advised that he has the right for thirty (30) days to appeal our order denying his
2254 petition, see 28 U.S.C. § 2253(a); Fed. R. App. P. 4(a)(1)(A), and that our denial of a
certificate of appealability does not prevent him from doing so, as long as he also seeks a
certificate of appealability from the court of appeals. See Fed. R. App. 22; Local Rule of
Appellate Procedure 22.1.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: April 20, 2017
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