HAILSTOCK v. BICKLE et al
Filing
16
MEMORANDUM AND OPINION re 2 Petition for Writ of Habeas Corpus filed by RANDY E. HAILSTOCK dismissing petition and denying a certificate of appealability. Signed by Magistrate Judge Robert C. Mitchell on 12/28/2011. (Mitchell, Robert)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
RANDY E. HAILSTOCK, HW-1688,
Petitioner,
v,
MR. BICKLE, et al.,
Respondents.
)
)
)
) 2:11-cv-1071
)
)
)
MEMORANDUM and ORDER
Mitchell, M.J.:
Randy E. Hailstock has presented a petition for a writ of habeas corpus which he has
been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition
will be dismissed, and because reasonable jurists could not conclude that a basis for appeal
exists, a certificate of appealability will be denied.
Hailstock was convicted of criminal trespass in the Court of Common Pleas of Mercer
County, Pennsylvania on November 25, 2008 and sentenced to a one to five year period of
incarceration. It is not his conviction which he challenges here but rather the actions of the
Pennsylvania Board of Probation and Parole (“the Board”) in denying him release on parole.1
In response to the petition, the respondents have submitted the declaration of John Janis,
an employee of the Board in which a detailed summary of the petitioner’s criminal record is
outlined. The petitioner was originally serving a one to two year sentence for theft by receiving
stolen property and paroled in April 1979 to a detainer for a one to eight year sentence for
robbery. He was paroled from the latter sentence on April 9, 1980 whereupon he was
recommitted as a technical and convicted parole violator. On March 27, 1987, Hailstock was
reparoled to a new three and a half to seven year sentence he received for offenses committed
while on parole. He was again released on parole on October 13, 1988. While on parole he was
again committed as a technical parole violator and for a new criminal offense. On May 28, 1992
1
See: Petition at ¶¶ 1-5, 11(e).
1
he was reparoled to serve his new one to three year sentence on the underlying conviction which
served as the basis for the parole revocation. He completed these sentences on May 28, 1995.2
On November 15, 2008, Hailstock was sentenced to the one to five year sentence for
criminal trespass with a minimum sentence expiration date of November 1, 2009 and a
maximum expiration of November 1, 2013. Petitioner was considered for parole on three
occasions and his release was denied.
His first denial occurred on August 6, 2009 when release was denied on the basis of need
to participate in and complete additional institutional programs; his risk to the community; his
prior unsatisfactory parole history and his denial of the nature and circumstances of the offense.3
On August 5, 2010, he was again considered for parole and release was denied based on
his prior unsatisfactory parole history; his risk to the community; his failure to demonstrate
motivation for success and his denial of the offense.4
Petitioner was again denied parole on June 22, 2011 due to his need to participate in
additional institutional programs; his danger to the community; his lack of remorse and other
factors.5 These actions constitute the basis for the instant petition.
Hailstock now comes before this Court and contends he is entitled to relief on the
following grounds:
1. Double jeopardy in that the Board arbitrarily and capriciously denied parole in
reliance of the rationale of the sentencing judge.
2. Due process violation in arbitrarily denying his release on parole.
3. Equal protection violation by the Board in acting in other than a fair and impartial
manner regarding his release.6
Where, as here, a petitioner seeks to challenge the denial of parole on constitutional
grounds, there is no exhaustion requirement except in very limited circumstances not
relevant here. Defoy v. McCullough, 393 F.3d 439,444 (3d Cir.) cert. denied 125 S.Ct.
2970 (2005).
The petitioner first alleges that his repeated denials of parole violated the double
jeopardy provisions of the Fifth Amendment which prohibits “any person … be[ing]
subject for the same offence to be twice put in jeopardy of life or limb…” This provision
2
3
4
5
6
See: Declaration of John Janis appended to the answer.
See: Exhibit 2 to the answer.
See: Exhibit 3 to the answer.
See: Exhibit 8 to the answer.
See; Petition at ¶12.
2
applies in criminal prosecutions and bars multiple punishments for the same crime,
Hudson v. United States, 522 U.S. 93, 98-99 (1997). It is not applicable to parole
proceedings since petitioner is not being required to serve a multiple or enhanced
sentence but merely the unexpired portion of his sentence. North Carolina v. Pearce, 395
U.S. 711,717 (1960) overruled on other grounds Alabama v. Smith, 490 U.S. 794 (1989).
See also: United States ex rel. Lawson v. Cavell, 425 F.2d 1350 1352 (3d Cir.1970). Thus
he has failed to state a double jeopardy violation.
Hailstock also contends that he suffered a due process violation in that he was
arbitrarily denied release on parole.
The present matter can be resolved on the grounds that the petitioner was not denied due
process when his parole was denied. The relevant Pennsylvania statute, 61 Pa.C.S.A.§6137 does
not create a mandatory expectation of release but rather has been determined to be a matter of
grace. Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285 (1999). In the
absence of a state mandated right of parole, parole is a matter of mere possibility and does not
invoke a federally protected liberty interest. Kentucky Department of Corrections v. Thompson,
490 U.S. 455 (1989). In Connecticut v. Dumschat, 452 U.S. 458 (1981), the Court recognized
that where there is no liberty interest created, there is no constitutional basis for relief. Since
federal habeas corpus relief is premised on violations of constitutional proportion, no such
factors exist here since the reasons for denying parole were based on the plaintiff=s past conduct
both inside and outside the institution and not on some arbitrary basis such Arace, religion,
political beliefs, or ... frivolous criteria with no rational relationship to the purpose of parole such
as the color of one’s eyes, the school one attended, or the style of one’s clothing.@ Block v.
Potter, 631 F.2d 233, 235 (3d Cir.1980).
In Coady v. Vaughn, 251 F.3d 480,487 (3d Cir.2001), the Court observed 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.” As discussed above, the petitioner has failed to demonstration any arbitrariness or
capriciousness in the Board’s determination but rather the record reflects that in fulfilling its
charge the Board concluded that the petitioner was not a suitable candidate for parole for the
reasons set forth. Indeed, the mandate of the Board is that parole may be granted where the best
3
interests of the inmate justify release and it does not appear that the Commonwealth’s interests
would be injured by such release. 61 Pa.C.S.A. §6137(a).
Because the Board’s actions were not arbitrary or capricious but rather soundly grounded
in its mandate, this claim does not provide a basis for relief here.
The petitioner’s final argument is that his equal protection rights were violated by the
Board. As set forth in the Fourteenth Amendment, no state may deny “any person within its
jurisdiction the equal protection of the laws.” That is “all persons similarly situated should be
treated alike.” Cleburne v. Cleburne Living Center, Inc., 478 U.S. 432, 439 (1985). The Third
Circuit has concluded that no “two prisoners could ever be considered” to fall in this category.
Taliferro v. New Jersey Parole Bd., 460 F.2d 289, 290 (3d Cir.1972).
In the instant case the petitioner does not demonstrate how he was treated differently
from other similarly situated individuals other than alleging that the Board “in its capacity as
pseudo judiciary circumventing the authority of the sentencing court” since it lacks all
sentencing authority.7 The determination of whether to grant or deny parole is the exclusive
function of the Board. See: 61 Pa.C.S.A. 6132. Accordingly, as a matter of state law, it is not
subject to review here. Taylor v. Horn, 504 F.3d 416 (3d Cir.2007), cert. denied 129 S.Ct. 92
(2008).
Thus, because there is no merit to the issues raised by the petitioner in that his continued
incarceration is not in any manner contrary to federal law as determined by the Supreme Court,
he is not entitled to relief here. 28 U.S.C. §2254(d)(1) and (2). For this reason, the petition of
Randy Hailstock for a writ of habeas corpus will be dismissed and because reasonable jurists
could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
An appropriate Order will be entered.
7
See: Petitioner’s Memorandum at p.9.
4
ORDER
AND NOW, this 28th day of December 2011, for the reasons set forth in the foregoing
Memorandum the petition of Randy E. Hailstock for a writ of habeas corpus is DISMISSED, and
because reasonable jurists could not conclude that a basis for appeal exists, a certificate of
appealability is DENIED.
s/ Robert C. Mitchell
United States Magistrate Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?