Lance v. Lawler et al

Filing 12

MEMORANDUM AND ORDER (1) The Federal Public Defender for the Middle District of Pennsylvania is appointed to represent the petitioner; and (2) A brief addressing the issues set forth above shall be filed by petitioners counsel, on or before May 7, 20 12.(3) Counsel for the respondents shall file a responsive brief, on or before May 21, 2012.(4) A reply brief may be filed, on or before June 4, 2012.Signed by Magistrate Judge Malachy E. Mannion on 4/9/12. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s), # 4 Unpublished Opinion(s), # 5 Unpublished Opinion(s))(bs, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
LANCE THOMAS

:
:

CIVIL ACTION NO. 3:10-2481

Petitioner
:
v.

(CAPUTO, D.J.)
(MANNION, M.J.)

:
SUPERINTENDENT RAYMOND
LAWLER and PENNSYLVANIA
ATTORNEY GENERAL

:
:

Respondents.
MEMORANDUM AND ORDER1
On December 3, 2010, Petitioner Lance Thomas (“Thomas”) filed a
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 . (Doc. No.
1). For the reasons set forth below, the court will appoint the Federal Public
Defender for the Middle District of Pennsylvania as counsel for the petitioner,
and direct further briefing by the parties on the issues that follow.

I.

BACKGROUND

On December 3, 2010, Thomas filed the instant habeas petition

1

For the convenience of the reader of this document in electronic
format, hyperlinks to the Court's record and to authority cited herein have
been inserted. No endorsement of any provider of electronic resources is
intended by the Court's practice of using hyperlinks.

(along with supporting exhibits) arguing that his substantive due process
rights were violated because he has a protected liberty interest in being
released on parole; and also that his equal protection rights were violated
because he was classified as a sex offender. (Doc. No. 1 at 5, 11 and 17).
On March 14, 2011, respondents filed a reply to the petition, along with
supporting exhibits. (Doc. No. 11). No traverse was filed.

II.

DISCUSSION

1. Facts
In 1992, Thomas plead guilty to rape, burglary and corruption of minors.
He was released on parole, but in 1999, he plead guilty to a probation
violation and had his parole revoked. He was sentenced to 2 ½ to 5 years
imprisonment - this results in a current maximum date of September 25, 2014.
On May 18, 2010, the Pennsylvania Board of Probation and Parole
(hereinafter “the parole board”) granted petitioner parole, based on a
condition including, among many other conditions, that he be placed in a
Specialized Community Corrections Center (“CCC”).
On October 25, 2010, Thomas received a letter from Jack Sommers,
the Director of the Bureau of Community Corrections for the Pennsylvania

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Department of Corrections. The letter reads, in salient part:
As you know a BCC referral was received and rejected as
problematic by the Regional Office on 6/21/10. You need to speak
with your Unit Management Team and Parole staff regarding your
situation. You have a serious offense in your history which doesn’t
make you an above average candidate for a Community
Corrections Center.
Region 1 has very few “regular” sex offender group room beds for
placement of cases such as yours. However, currently there are
no State “Specialized” Centers in Region 1 at this time that
house[] individuals with your type of previous offense. A cross
regional referral is possible, but the waiting list is very long and
only a percentage of cases such as yours are placed in a
specialized CCC at one time.
You should be working with parole on attempting to get released
directly to the community with an approved home plan.
(Doc. No. 1 at 23).
According to respondents,
The [parole board] has the power under Pennsylvania law to enter
into contracts to purchase community services to assist state
parolees, including contract to lease residential facilities in
communities within which to house inmates who are being
conditionally paroled. Over the years[,] the [parole board] has
relied on Community Correction Resident or group home
residences (referred to as “CCRs”) either operated[,] or
supervised by[,] the DOC when conditioning the release of certain
offenders granted parole. Under such conditional circumstances,
inmates may be released on parole only if they obtain occupancy
in a CCR. CCCs are principally operated by private contractors
who respond to requests for proposals from the DOC. They are
geographically distributed throughout Pennsylvania.

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The DOC, through its Bureau of Community Corrections (“BCC”),
also directly operates CCRs with B[C]C staff in certain locations.
Sex offenders are not housed in privately owned CCCs under
contract with the DOC. When CCRs are willing to accept sex
offenders, they have limited the number of placements or beds
assigned to sex offenders. Opposition by the community,
including restrictions placed on sex offender occupancy, is a
factor in the very limited number of CCC beds available to sex
offenders.
BCCs are administered regionally in the three geographic regions
in Pennsylvania. Region 1 covers Philadelphia, Delaware and
Chester counties. Region II covers the rest of eastern
Pennsyvlania[,] as well as all of central Pennsylvania. Region III
covers western Pennsylvania. Typically inmates are only released
on parole in the region they lived in prior to incarceration.
(Doc. No. 11-1 at 3-4).
To summarize petitioner could not be released on parole because one
of the conditions set forth by the parole board was that Thomas be released
to a CCC, and at the time, there were no available placements in a CCC or
CCR that accepts sex offenders.
2. Analysis
Thomas argues that he has a protected liberty interest in being released
on parole, and the DOC has violated his due process rights by not releasing
him. He also argues that his equal protection rights have been violated
because he is being discriminated against for having a prior sex offense.
Respondents argue that there has been no constitutional violation.
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Respondents rely, in great part, on a recent opinion issued in the Middle
District by Judge Blewitt, and adopted by Judge Conner.2
While the issue before by Judge Blewitt was almost identical to the one
at hand (a state prisoner who was granted parole, but due to a lack of bed
space at a CCC or CCR, remained imprisoned after the grant of parole); there
is one distinguishing factor between that case and the instant action3 - the
prisoner there was released on parole during the pendency of the action, thus
rendering his injunctive request moot. Here, Thomas is still imprisoned (to the
best of our knowledge), thus a request for relief that demands release from
imprisonment is not moot in the instant action.
As an initial matter, it seems clear that there is no equal protection
violation for classifying petitioner as a sex offender and basing the conditions
of his release on that classification. Sex offender status is not a protected
class, thus classification as such is subject only to a rational basis test, and
not to strict scrutiny. See City of Cleburne v. Cleburne Living Ctr, 473 U.S.
2

The report and recommendation issued by Judge Blewitt is attached.
(Garrett Williams v Jeffrey Beard, et. al. 1-09-CV-1587 (Doc. No. 24). Also
attached is Judge Conner’s adoption of the report and recommendation. (Doc.
No. 30). Also attached is the Third Circuit’s opinion and judgment on the
mootness issue. (Doc. No. 36).
3

Other than the fact that that case was brought as a 28 U.S.C. §1983
case, which affords different relief than does a habeas petition.
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432; 105 S. Ct. 3249; 87 L. Ed. 2d 313 (stating that classifications based on
race, alienage or national origin are subject to strict scrutiny analysis, those
based on gender and illegitimacy call for heightened scrutiny); see also
Chapman v. United States, 500 U.S. 453; 11 S. Ct. 1919; 114 L. Ed. 2d 524
(applying a rational basis test to classifications based on the nature of the
crime). The Equal Protection clause only requires the state to provide some
plausible reason for treating convicted sex-offenders differently than others
convicted of crimes. Because we are giving an opportunity for the parties to
brief other issues, we are not foreclosing the issue, should counsel choose
to argue it further, however, it seems doubtful that there was an equal
protection violation here.
Thomas is not the first inmate to bring a claim like this one. See Jago
v. Van Curen, 454 U.S. 14; 102 S. Ct. 31; 70 L. Ed. 2d 13 (1981) (per curiam)
(holding that an inmate who was granted parole, then, prior to his physical
release on parole, had his parole revoked by the parole board for lying to the
parole board, had no protected interest in that revocation) (however, Stevens,
dissenting, stating that an inmate has greater legal rights as a parolee then
before, and the question the court should have addressed is which event
triggers the change in legal rights - the act of walking through the exit gates

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or the State’s formal decision). Similar claims also have been rejected by
district courts in this state before. See Harper v. Thomas, 2007 WL 2713246
(E.D. Pa. 2007) (Dalzell, J.); White v. Grace, 2005 WL 1653436 (M.D. Pa.
2005) (Nealon, J.).
It is clear that there is no protected interest in being granted parole by
the parole board. “There is no constitutional or inherent right of a convicted
person to be conditionally release before the expiration of a valid sentence.”
Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442
U.S. 1, 7; 99 S. Ct. 2100; 60 L. Ed. 2d 668 (1979); see also Jago, supra.
What is not clear however, is if a protected interest exists after a grant
of parole has been given by the Parole Board yet before the DOC has
physically released the inmate from incarceration. In other words, it is clear
that Thomas did not have a liberty interest in being paroled. Had the parole
board denied a grant of parole to Thomas, Thomas would have no legal
recourse.4 However, at some point in time after parole is granted, a liberty
interest does attach. See Greenholtz, 442 U.S. at 9 (stating that once paroled,
there is a liberty interest that requires due process protections upon

4

Other than not being denied parole for arbitrary or conditionally
impermissible reasons, i.e. a decision based solely on race. See e.g., Block
v. Potter, 631 F.2d 233 (3d Cir. 1980).
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revocation of parole); Morrissey v. Brewer, 408 U.S. 471; 92 S. Ct. 2593; 33
L. Ed. 2d 484 (1972) (holding that parole revocation does implicate the
parolee’s liberty interests thus termination of that liberty requires some due
process mandated protections).
Thus, several questions flow from this implication. Is the court bound by
Jago, supra, or is that case factually distinguishable? When does this liberty
interest attach? Does it attach upon grant of parole? Does it only attach after
the DOC physically releases the inmate from incarceration (assuming parole
is not revoked by some fault of the inmate)? What happens if the DOC or
inmate is unable to meet the conditions of parole set by the parole board? Is
it permissible for the DOC to unilaterally decide to keep the inmate
incarcerated, or is some further intervention by the parole board required?
As a result, it will be ordered that the parties be given an opportunity to
brief the issues raised in this Memorandum and Order. Because the
petitioner’s claim may have some merit in fact and law and because of the
complexity of the legal issues, the court will appoint counsel for Thomas to
brief the issue on his behalf.5
5

Appointment of counsel is discretionary with the court. 18 U.S.C.
§3006A(a)(2)(B). Counsel must be appointed for an indigent federal habeas
petitioner only when required by the interests of justice or due process.
Schultz v. Wainwright, 701 F.2d 900 (11th Circuit 1983). In Tabron v. Grace,
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At a minimum, the issue to be briefed is: at what point does a liberty
interest attach to an inmate who has been granted parole?

III.

CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED THAT:
(1) The Federal Public Defender for the Middle District of
Pennsylvania is appointed to represent the petitioner; and
(2) A brief addressing the issues set forth above shall be filed by

the Third Circuit announced the factors that are to be considered by a district
court in deciding whether to exercise its discretion and seek counsel for an
indigent litigant in a civil case. 6 F.3d 147, 153 (3d Cir. 1993), cert. denied,
510 U.S. 1196 (1994). Although the Tabron court was applying 28 U.S.C.
§1915(e)(1), district courts have held that the factors set forth under Tabron
are equally applicable to 18 U.S.C. § 3006A(a)(2)(B). See Kotey v. Gonzalez,
2007 U.S. Dist. LEXIS 21654, 2007 WL 951436 (D.N.J. 2007) (Linares, J);
Santos v. Diguglielmo, 2007 U.S. Dist. LEXIS 14813, 2007 WL 675351 (M.D.
Pa. 2007) (Mannion, M.J.); George v. Pa. A.G., 2007 U.S. Dist. LEXIS 90895,
2007 WL 4369924 (M.D. Pa. 2007) (Caputo, J.). Under Tabron, the first
consideration by a district court should be whether the [petitioner's] claim has
"some merit in fact and law." Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.
1997) (citing Tabron, 6 F.3d at 157).
Only after determining that the claim has some merit should the court
consider these six additional factors: 1) the [petitioner's] ability to present his
or her own case; 2) the complexity of the legal issues; 3) the degree to which
factual investigation will be necessary and the [petitioner's] ability to pursue
such an investigation; 4) the amount the case is likely to turn on credibility
determinations; 5) whether the case will require the testimony of expert
witnesses; and 6) whether the [petitioner] can attain and afford counsel on his
own behalf. Id. at 457-58 (citing Tabron, 6 F.3d at 155-56, 157 n. 5).
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petitioner’s counsel, on or before May 7, 2012.
(3) Counsel for the respondents shall file a responsive brief, on or
before May 21, 2012.
(4) A reply brief may be filed, on or before June 4, 2012.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States Magistrate Judge
Date: April 9, 2012.
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