GARRISON v. CLARK et al

Filing 21

MEMORANDUM OPINION & ORDER: For the reasons set forth within this Opinion, the petition for a writ of habeas corpus 3 is denied and a certificate of appealability is denied. The Petitioner's motions for release 15 , 19 are also denied because he is not entitled to habeas relief. An appropriate Order is attached. Signed by Magistrate Judge Susan Paradise Baxter on 1/25/17. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN PATRICK GARRISON,
Petitioner,
v.

MICHAEL CLARK, et al.,
Respondents.

)
)
)
)
)
)
)
)

Civil Action No. 16-92 Erie

Magistrate Judge Susan Paradise Baxter

OPINION1
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner John
Patrick Garrison (the "Petitioner") pursuant to 28 U.S.C. § 2254. [ECF Nos. 3]. He challenges the
decision made by the Pennsylvania Board of Probation and Parole (the "Board") to deny him parole. For
the reasons set forth below, the petition is denied and a certificate of appealability is denied.
I.
A.

Relevant Background
On February 18, 2011, the Petitioner was sentenced in the Court of Common Pleas of Venango

County at criminal docket CP-61-CR-861-2010 to a term of 9 months to 1.5 years of incarceration on a
count of False Alarms. Later that same year, on October 31, 2011, he was sentenced at criminal docket
CP-61-CR-64-2011 to a term of incarceration of: (1) 1 year and 3 months to 5 years on a count of
Endangering Welfare of Children; and (2) 1 to 5 years on a count of Corruption of Minors. (Resp's
Ex. 1).
In addition to establishing an offender's minimum and maximum terms when imposing a
sentence of total confinement, the sentencing judge in a Pennsylvania court is also required to make a

1

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily consented to have a
U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

1

determination as to the offender's eligibility for the Recidivism Risk Reduction Incentive ("RRRI")
program.2 Commonwealth v. Hansley, 47 A.3d 1180, 1187 (Pa. 2012); Commonwealth v. Robinson, 7
A.3d 868 (Pa.Super.Ct. 2010). The intent of the RRRI program is to encourage "eligible offenders" in
the custody of the Department of Corrections ("DOC") "to participate in and successfully complete
evidence-based programs under this chapter that reduce the likelihood of recidivism and improve public
safety." 61 Pa.C.S. § 4504(b). If an offender is an "eligible offender," the sentencing court at the time of
sentencing will impose a minimum and maximum sentence as required by 42 Pa.C.S. § 9752 (relating to
sentencing proceeding generally) and also impose a RRRI minimum sentence.
In this case, the Petitioner's minimum sentence expiration date for his aggregated sentence was
July 3, 2014. The sentencing court found that he was RRRI eligible and his RRRI minimum sentence
expiration date was October 3, 2013. His maximum sentence date is April 3, 2022. (Resp's Ex. 1).
As his RRRI minimum sentence date approached, the Board considered whether the Petitioner
should be paroled. On October 1, 2013, it issued a decision in which it denied him parole. (Resp's Ex. 2).
In the event that an offender has been sentenced to a RRRI minimum sentence and is not paroled
pursuant to the RRRI program, the Board retains its traditional powers of parole and reparole as
provided in Chapter 61 of the Prisons and Parole Code. 61 Pa.C.S. § 4507 ("If an inmate has been
sentenced by a court to a recidivism risk reduction incentive minimum sentence and the inmate is not
paroled under this chapter, the board may grant parole. Except as otherwise provided under this chapter,
the board shall retain its power and authority to parole, commit and reparole inmates committed to the
department.")

2

This requirement was added to § 9756(b.1) of the Sentencing Code (42 Pa.C.S. § 9756(b.1)), by the General
Assembly effective as of November 24, 2008. In 2009, the RRRI statutes were transferred to Chapter 45 in Title 61 of the
Pennsylvania Consolidated Statutes (61 Pa.C.S. §§ 4501 to 4512) as part of the 2009 codification of the Commonwealth's
prison, probation, and parole statutes.

2

The Board considered the Petitioner for parole on three subsequent occasions and on each
occasion it denied him parole. (Resp's Exs. 3, 4 and 5). It issued its most recent decision on
June 17, 2016, and informed the Petitioner that:
Following an interview with you and a review of your file, and having considered all
matters required pursuant to the Board of Probation and Parole, [the Board] in the
exercise of its discretion, has determined at this time that: you are denied parole/reparole.
The reasons for the Board's decision include the following:
Your risk and needs assessment indicating your level of risk to the community.
The negative recommendation made by the Department of Corrections.
Your minimization/denial of the nature and circumstances of the offense(s) committed.
Your refusal to accept responsibility for the offenses(s) committed.
Your lack of remorse for the offense(s) committed.
(Resp's Ex. 5).
In this federal habeas case, the Petitioner challenges the Board's decision to deny him parole.
This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C. § 2254, which
provides that habeas relief is only available on the grounds that the Petitioner is in custody in violation
of his federal constitutional rights. 28 U.S.C. § 2254(a). The Petitioner claims that in denying him
parole, the Board violated the Due Process Clause, the Ex Post Facto Clause and his rights under the
Eighth Amendment.
Respondents have filed their answer (ECF No. 12), in which they contend, inter alia, that the
Petitioner's claims have no merit. The Petitioner filed a reply (ECF No. 16) and this matter is now ripe
for review.

3

B.

Discussion
(1)

The Exhaustion Requirement

The federal habeas statute typically "requires that prisoners exhaust their claims in state court
before seeking relief in federal courts." Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004) (citing
28 U.S.C. § 2254(b)(1)(A)). In Defoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005), the United
States Court of Appeals for the Third Circuit held in 2005 that aside from litigating an ex post facto
claim, Pennsylvania law does not provide a mechanism by which a prisoner can challenge a parole
denial. See also Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) ("[T]he State argues that
DeFoy no longer controls because Commonwealth Courts since that decision have adjudicated
mandamus actions involving parole denials by the Board and have considered constitutional claims
other than ex post facto claims…. [T]o the extent there has been any shift in Pennsylvania law, we
cannot comfortable say that it is clear enough to alter our decision in DeFoy.") Therefore, the Petitioner
may be exempt from the exhaustion requirement with respect to all of his claims except for his ex post
facto claim, but as Respondents note, it is not entirely clear that review of the Petitioner's claims in
Pennsylvania state court is foreclosed at this time. However, because a federal court "may bypass the
exhaustion issue altogether should [it] decide that the petitioner's habeas claim fails on the merits[,]" and
since the Petitioner's claims plainly have no merit, this Court "need not address the issue of exhaustion"
with respect to his claims. Roman, 675 F.3d at 209 (citing, inter alia, 28 U.S.C. 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.")).

4

(2)

The Petitioner's Claims Have No Merit

The Fourteenth Amendment provides that the State may not "deprive any person of life, liberty,
or property without due process of law." U.S. Const. amend. XIV. An examination of a procedural due
process claim under the Fourteenth Amendment proceeds in two steps. See Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 571 (1972). First, the court must determine whether there exists a liberty
or property interest which has been interfered with by the state. Kentucky Dept. of Corr. v. Thompson,
490 U.S. 454, 460 (1989) (citing Board of Regents, 408 U.S. at 571). Second, and if and only if a
petitioner establishes the existence of a protected interest, the court must examine whether the
procedures attendant upon that deprivation were constitutionally sufficient. Id. (citing Hewitt v. Helms,
459 U.S. 460, 472 (1983)). The Petitioner cannot meet either criteria because 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 and Corr. Complex, 442 U.S. 1, 7 (1979), and
both the federal and Pennsylvania state courts have held that parole is not a constitutionally protected
liberty interest under Pennsylvania law. Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996); Rogers v.
Pennsylvania Bd. of Prob. and Parole, 724 A.2d 319, 322-23 (Pa. 1999). See also Newman v. Beard, 617
F.3d 775, 783 (3d Cir. 2010). Thus, absent the creation of a liberty interest in parole, the Board's
decision to deny parole does not create any procedural due process protections.
The Petitioner contends that he was entitled to parole at the expiration of his RRRI minimum
sentence, but that contention has no merit. As the Respondents explain in their answer, the Petitioner is
eligible for parole at the expiration of his RRRI minimum sentence, but the Board is still tasked with
deciding whether he is entitled to it. 61 Pa.C.S. § 4506(d) ("Nothing in this section shall be interpreted
as granting a right to be paroled to any person[.]"); id. § 4511 ("Notwithstanding any other provision of
law, this chapter shall not be construed to do any of the following:….(2) Confer any legal right to any
5

individual to be released on parole under this chapter.") As the Supreme Court of Pennsylvania
explained:
[a]lthough the court imposes an RRRI Act minimum sentence, the offender is not
guaranteed a right to be granted parole upon the expiration of that term. See [61 Pa.C.S.]
§ 4506(d) ("Nothing in this section shall be interpreted as granting a right to be paroled to
any person...."). Instead, the Parole Board is tasked with issuing a decision to parole an
offender upon completion of the RRRI Act minimum sentence only if the Parole Board
independently determines that the offender has successfully completed the required
recidivism risk reduction incentive or other similar program, as well as several other
requirements (e.g., it does not reasonably appear that defendant presents risk to public
safety). Id. § 4506(a)(1)-(10).
Hansley, 47 A.3d at 1188.
To prevail on a substantive due process challenge to the Board's decision, the Petitioner must
establish that the decision shocks the conscience. See, e.g., Newman, 617 F.3d at 782. Evans v. Sec'y,
Pa. Dept. of Corr., 645 F.3d 650, 659 (3d Cir. 2011). A substantive due process claim is not easily
mounted. The Court of Appeals for the Third Circuit has stressed that "[c]onduct can violate substantive
due process if it shocks the conscience, which encompasses only the most egregious official conduct."
Newman, 617 F.3d at 782 (internal quotations and citations omitted). See also Hunterson v. DiSabato,
308 F.3d 236, 246-47 (3d Cir. 2002). It also has stated: "[F]ederal courts are not authorized to secondguess 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) (emphasis added).
Newman, 617 F.3d at 782 ("The conduct must be intended to injure in some way unjustifiable by any
government interest[.]") (internal quotations and citations omitted).
The Petitioner has not demonstrated that the Board's decision lacked "some basis." As reflected
in its most recent decision, the Board denied the Petitioner parole after an interview and a review of his
file. The Board determined, inter alia, that the Petitioner's "risk and needs assessment" indicated that he
did pose an "level of risk to the community[.]" Although the Petitioner disagrees with the Board's
6

assessment of him, he has failed to direct the Court to any factor relied upon by the Board that could be
described as "conscience shocking." Accordingly, there can be no finding that he is in custody in
violation of his substantive due process rights.
The Petitioner's Eighth Amendment claim also has no merit. He has no right to be released
before the expiration of his valid prison sentence on April 3, 2022, Greenholtz, 442 U.S. at 7, and the
Board's decision to deny him release to parole does not constitute cruel and unusual punishment. See
Sample v. Diecks, 885 F.2d 1099, 1108 (3d Cir. 1989) (imprisonment beyond one's term constitutes
punishment within the meaning of the Eighth Amendment).
Finally, the Petitioner has not established an ex post facto violation. "To be eligible for habeas
corpus based on a violation of the Ex Post Facto Clause, a petitioner must show both a retroactive
change in law or policy and that this change caused individual disadvantage by creating 'a significant
risk of increasing his punishment.'" Richardson v. Pennsylvania Bd. of Prob. and Parole, 423 F.3d 282,
283 (3d Cir. 2005) (emphasis in original) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000) and citing
Mickens-Thomas v. Vaughn, 321 F.3d 374, 393 (3d Cir. 2003)). The Petitioner has not satisfied these
factors and, therefore, his ex post facto claim has no merit.

C.

Certificate of Appealability
Section 102 of AEDPA, which is codified at 28 U.S.C. § 2253, governs the issuance of a

certificate of appealability for appellate review of a district court's disposition of a habeas petition. It
provides that "[a] certificate of appealability may issue...only if the applicant has made a substantial
showing of the denial of a constitutional right." Where the district court has rejected a constitutional
claim on its merits, "[t]he petitioner must demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473,
7

484 (2000). Applying that standard here, jurists of reason would not find it debatable whether each of
the Petitioner's claims should be denied. Accordingly, a certificate of appealability is denied.

II.
For the reasons set forth above, the petition for a writ of habeas corpus is denied and a certificate
of appealability is denied. The Petitioner's motions for release [ECF Nos. 15, 19] are also denied
because he is not entitled to habeas relief.
An appropriate Order is attached.

Dated: January 25, 2017

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

8

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN PATRICK GARRISON,
Petitioner,
v.

MICHAEL CLARK, et al.,
Respondents.

)
)
)
)
)
)
)
)

Civil Action No. 16-92 Erie

Magistrate Judge Susan Paradise Baxter

ORDER
AND NOW, this 25th day of January, 2017, IT IS HEREBY ORDERED that the petition for a
writ of habeas corpus is DENIED and a certificate of appealability is DENIED on all claims. It is
FURTHER ORDERED that the Petitioner's motions for release [ECF No. 15, 19] are DENIED.
The Clerk of Court shall mark this case CLOSED.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge

cc:

Notice by ECF to counsel of record and by U.S. mail to Petitioner at his address of record

9