GIBSON v. OVERMYER et al

Filing 20

OPINION & ORDER that the petition for a writ of habeas corpus 3 is DENIED and a certificate of appealability is DENIED on all claims. It is further ORDERED that the Petitioner's motion for an evidentiary hearing 15 is DENIED.The Clerk of Court shall mark this case CLOSED. Signed by Magistrate Judge Susan Paradise Baxter on 2/14/18. (lrw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DERRICK GIBSON,
Petitioner,
v.

MICHAEL OVERMYER, et al.,
Respondents.

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Civil Action No. 17-188 Erie

Magistrate Judge Susan Paradise Baxter

OPINION1
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner
Derrick Gibson (the "Petitioner") pursuant to 28 U.S.C. § 2254. (ECF No. 3). He challenges the
June 26, 2017, 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
In April 2010, the Petitioner appeared before the Court of Common Pleas of Philadelphia County

and pleaded guilty to attempted murder in the first degree and possession of an instrument of a crime.
The state trial court sentenced him to an aggregate term of 10 to 20 years of imprisonment. His
minimum sentence date was August 1, 2017, and his maximum sentence date is August 1, 2027.
By a decision dated June 26, 2017, the Board denied the Petitioner parole. It explained:
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
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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.

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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 need to participate in and complete additional institutional programs.
Your risk and needs assessment indicating your level of risk to the community.
The negative recommendation made by the Department of Corrections.
Reports, evaluations and assessments/level of risk indicates your risk to the community.
Your failure to demonstrate motivation for success.
Your minimization/denial 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 negative recommendation made by the prosecuting attorney.
(ECF No. 11-2 at 2-3). The Board also advised the Petitioner that at his next review for parole it would
consider:
Whether you have successfully participated in/successfully completed a treatment
program for substance abuse and violence prevention.
Whether you have received a favorable recommendation for parole from the Department
of Corrections.
Whether you have received a clear conduct record.
Whether you have completed the Department of Corrections prescriptive program(s).
(Id.)
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). Petitioner claims that the Board violated the
Due Process Clause and his rights under the First, Fifth, and Eighth Amendment.
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The Respondents have filed their answer (ECF No. 11), in which they contend that the
Petitioner's claims have no merit. The Petitioner filed a reply (ECF No. 14) and a motion for an
evidentiary hearing (ECF No. 15).

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. 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,

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notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.")).2

(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 & 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. & 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.

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The Respondents note that the Board routinely defends challenges to parole refusals filed by Pennsylvania inmates
in the Commonwealth Court of Pennsylvania for claims other than ex post facto claims. Because Defoy is controlling Third
Circuit precedent, the Respondents explain, they will not challenge that holding in this Court. However, they preserve the
issue of exhaustion in the event that there is appellate review and state that the Petitioner's claims should be dismissed
because he did not present them to the Pennsylvania state courts before filing his federal habeas petition.

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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.
Secretary, Pa. Dept. of Corrections, 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." Id. (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 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) (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 June 26, 2017, decision, the Board denied the Petitioner parole after an interview and a review of his
file. The Board listed numerous reasons for why it denied parole and although the Petitioner disagrees
with the Board's 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 alleges that the Board violated his First Amendment rights by retaliating against
him by denying him parole because he filed complaints against Department of Corrections officials. To
prevail on a retaliation claim, the Petitioner must show that he engaged in constitutionally-protected
activity and that he suffered, at the hands of the Board, adverse action. See, e.g., Rauser v. Horn, 241
F.3d 330, 333 (3d Cir. 2001) (citing, inter alia, Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
Once these two threshold criteria are met, the Petitioner must then show that the protected activity was
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"a substantial or motivating factor" in the Board's decision to deny him parole.3 Id. (quoting Mount
Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)). As the Respondents point out, the Petitioner
makes only bald assertions in support of his retaliation claim and he did not address, let alone establish,
how any constitutionally-protected activity that he engaged in was a "substantial or motivating factor" in
the Board's decision to denying him parole. It is the Petitioner's burden to demonstrate that his
constitutional rights have been violated, see, e.g., Cullen v. Pinholster, 563 U.S. 170, 181 (2011);
Vickers v. Superintendent Graterford SCI, 858 F.3d 841, 848-49 (3d Cir. 2017), and he did not meet his
burden here.
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 August 1, 2027, 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).
In the Petitioner's final claim, it appears that he is alleging that the Board violated his Fifth
Amendment right against self-incrimination because one of the reasons that it denied him parole was
that he refused "to accept responsibility for the offense(s) committed[.]" (ECF No. 11-2 at 2). There is
no merit to this claim. "Though a prisoner already may have been convicted and imprisoned for an
offense, the Fifth Amendment still applies to ensure that the individual not be compelled to bear witness
against himself or divulge information that might incriminate him in future criminal proceedings."
Roman, 675 F.3d at 210 (citing Minnesota v. Murphy, 465 U.S. 420, 426 (1984)). "An individual trying
to make out a Fifth Amendment claim must demonstrate two key elements: compulsion and use." Id.

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If the Petitioner had established a prima facie case, which he did not, the burden would then have shifted to the
Respondents to prove by a preponderance of the evidence that Board would have taken the same action even in the absence
of the protected activity. Rauser, 241 F.3d at 233 (citing Mount Healthy, 429 U.S. at 287).

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Here, the Petitioner has not demonstrated how his Fifth Amendment rights are implicated by the Board's
consideration, in addition to numerous other factors, of whether he has accepted sufficient responsibility
for the offenses that he admitted under oath he committed when he pleaded guilty.
Finally, the Petitioner's motion for an evidentiary hearing is denied. In cases where the petitioner
is not barred from obtaining an evidentiary hearing by 28 U.S.C. § 2254(e)(2) or Cullen v. Pinholster,
563 U.S. 170 (2011), the decision to grant a hearing rests in the discretion of the court. Palmer v.
Hendricks, 592 F.3d 386, 393 (3d Cir. 2010). See also Lee v. Glunt, 667 F.3d 397, 406 (3d Cir. 2012).
Importantly, "bald assertions and conclusory allegations do not afford a sufficient ground for an
evidentiary hearing." Campbell v. Burris, 515 F.3d 172, 184 (3d Cir. 2008) (quoting Mayberry v.
Petsock, 821 F.2d 179, 185 (3d Cir. 1987)). There is no basis for the court to grant the Petitioner's
request for an evidentiary hearing and his motion for one is denied.

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,
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.

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II.
For the reasons set forth above, the petition for a writ of habeas corpus is denied, his motion for
an evidentiary hearing is denied, and a certificate of appealability is denied on all claims.
An appropriate Order is attached.

Dated: February 14, 2018

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

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DERRICK GIBSON,
Petitioner,
v.

MICHAEL OVERMYER, et al.,
Respondents.

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Civil Action No. 17-188 Erie

Magistrate Judge Susan Paradise Baxter

ORDER
AND NOW, this 14th day of February, 2018, 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 motion for an evidentiary hearing (ECF No. 15) is DENIED.
The Clerk of Court shall mark this case CLOSED.

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

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