CRUMBY v. BARKLEY et al

Filing 13

MEMORANDUM OPINION denying the petition and a certificate of appealability. Signed by Magistrate Judge Susan Paradise Baxter on 3/31/16. (jpe)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
EXCEL RUFUS CRUMBY,
Petitioner,
v.
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE, et al.,
Respondents.

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Civil Action No. 2:14-CV-950

Magistrate Judge Susan Paradise Baxter

OPINION AND ORDER1
Presently before the Court is a petition for a writ of habeas corpus filed by state prisoner Excel
Rufus Crumby pursuant to 28 U.S.C. § 2254. [ECF No. 1]. In the petition, he challenges the decision 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
Crumby is currently serving an aggregate state sentence of 24 years, 6 months to 54 years for

committing the crimes of Rape (3 counts), Involuntary Deviate Sexual Intercourse, Simple Assault,
Unlawful Restraint (2 counts), and Terroristic Threats. The minimum expiration date for his sentence
was March 20, 2012, and the maximum expiration date is September 20, 2041.
The Board has interviewed and denied Crumby parole four times since he reached his minimum
sentence date. The last time it denied him parole was by a decision it issued on March 28, 2015. On that
date, the Board informed him that:

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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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[f]ollowing an interview with you and a review of your file, and having considered all
matters required pursuant to the Board of Probation and Parole, [it] 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:
Reports, evaluations and assessments/level of risk indicates your risk to the community.
The negative recommendation made by the prosecuting attorney.
You are to be reviewed in or after March 2017[.]
[ECF No. 12-1 at 1, 3/28/15 Notice of Board Decision].
This case is governed by the federal habeas statute applicable to state prisoners, 28 U.S.C.
§ 2254. Under this statute, habeas relief is only available on the grounds that Crumby is in custody in
violation of his federal constitutional rights. 28 U.S.C. § 2254(a). Crumby contends that the Board is
violating the Ex Post Facto Clause by applying the 1996 amendments to the Parole Act to him by
refusing him parole. He also claims that the Board has violated the Due Process Clause and the Equal
Protection Clause in denying him parole.
Respondents have filed their answer [ECF No. 8], to which Crumby filed a reply [ECF No. 9].
He also supplemented the petition with additional relevant documents. [ECF Nos. 11 & 12].

B.

Discussion
(1)

Crumby Failed to Exhaust His Ex Post Facto Claim

The federal habeas statute "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)). The exhaustion requirement is "grounded in principles of comity; in a federal system,
the States should have the first opportunity to address and correct alleged violations of state prisoner's
federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). See also O'Sullivan v. Boerckel, 526
U.S. 838, 842-49 (1999). The requirement is:
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principally designed to protect the state courts' role in the enforcement of federal law and
prevent disruption of state judicial proceedings. See Braden v. 30th Judicial Circuit Court
of Kentucky, 410 U.S. 484, 490-491, 93 S.Ct. 1123, 1127, 35 L.Ed.2d 443 (1973). Under
our federal system, the federal and state "courts [are] equally bound to guard and protect
rights secured by the Constitution." Ex parte Royall, 117 U.S. [241, 251, 6 S.Ct. 734, 740
(1886)]. Because "it would be unseemly in our dual system of government for a federal
district court to upset a state court conviction without an opportunity to the state courts to
correct a constitutional violation," federal courts apply the doctrine of comity, which
"teaches that one court should defer action on causes properly within its jurisdiction until
the courts of another sovereignty with concurrent powers, and already cognizant of the
litigation, have had an opportunity to pass upon the matter." Darr v. Burford, 339 U.S.
200, 204, 70 S.Ct. 587, 590, 94 L.Ed. 761 (1950). See Duckworth v. Serrano, 454 U.S. 1,
3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981) (per curiam) (noting that the exhaustion
requirement "serves to minimize friction between our federal and state systems of justice
by allowing the State an initial opportunity to pass upon and correct alleged violations of
prisoners' federal rights").
Rose v. Lundy, 455 U.S. 509, 517 (1982) (footnote omitted).
Importantly, in order to exhaust a claim "state prisoners must give the state courts one full
opportunity to resolve any constitutional issues by invoking one complete round of the State's
established appellate review process." O'Sullivan, 526 U.S. at 844-45. The petitioner carries the burden
of proving exhaustion of all available state remedies. See, e.g., Lambert v. Blackwell, 134 F.3d 506, 513
(3d Cir. 1997).
The exhaustion requirement became all the more important after the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which put into place highly
deferential standards of review that a federal court must apply to a state court's findings of facts and its
adjudication of a petitioner's federal constitutional claim. 28 U.S.C. § 2254(d) & (e)(1). If the petitioner
failed to provide the state court with the opportunity to review his claim on the merits, he is not entitled
to de novo review in his federal habeas proceeding. Rather, for the reasons set forth below, the claim is
unreviewable in federal court and, when there is no longer any available mechanism for the petitioner to
exhaust the claim in state court, it must be denied as procedurally defaulted.
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In Pennsylvania a prisoner's claim that the Board violated his ex post facto rights when it denied
him parole is cognizable in Pennsylvania state courts, beginning with a petition for writ of mandamus in
the original jurisdiction of the Commonwealth Court and followed by an appeal to the Pennsylvania
Supreme Court. Parker v. Kelchner, 429 F.3d 58, 61-64 (3d Cir. 2005); Long v. Pennsylvania Bd. of
Prob. and Parole, 227 F.App'x 190 (3d Cir. 2007); Cimaszewski v. Pa. Bd. of Prob. and Parole, 868
A.2d 416 (Pa. 2005).
As Respondents contend, Crumby has not demonstrated that he pursued or completed these
required steps. Accordingly, this Court must conclude that he did not exhaust his ex post facto claim in
state court. Because he did not, that claim is procedurally defaulted for the purposes of federal habeas
review. See, e.g., Lines v. Larkins, 208 F.3d 153, 16069 (3d Cir. 2000); Werts v. Vaughn, 228 F.3d 178,
192 (3d Cir. 2000). Like the exhaustion doctrine, the doctrine of procedural default is "grounded in
concerns of comity and federalism," Coleman, 501 U.S. at 730, and it bars federal habeas review of a
claim whenever the petitioner failed to raise it in compliance with a state's procedural rules. Edwards v.
Carpenter, 529 U.S. 446, 451 (2000); Wainwright v. Sykes, 433 U.S. 72 (1977); Lines, 208 F.3d at 16269.2

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A petitioner whose habeas claim is procedurally defaulted can overcome the default, thereby allowing federal court
review, if he can demonstrate "cause" for the default, i.e., that some objective factor "external to the defense" impeded efforts
to comply with the state's procedural rule, and "actual prejudice." See, e.g., Coleman, 501 U.S. at 750; Murray v. Carrier, 477
U.S. 478, 488, 494 (1986). Crumby points to no evidence that establishes cause for his default or prejudice stemming
therefrom. Another exception to the procedural default doctrine is the "miscarriage of justice" exception. It provides that a
procedural default may be excused if the petitioner presents evidence of "actual innocence" that is "so strong that a court
cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless
constitutional error[.]" Schlup v. Delo, 513 U.S. 298, 316 (1995). The "miscarriage of justice" exception only applies in
extraordinary cases where the petitioner demonstrates that a constitutional violation has probably resulted in the conviction of
one who is actually innocent. Schulp, 513 U.S. at 316. This is not one of the rare cases in which the fundamental miscarriage
of justice rule is implicated.

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(2)

Petitioner's Due Process and Equal Protection Claims Have No Merit3

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)). Crumby 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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Unlike Crumby's ex post facto claim, it appears that Pennsylvania law may not provide a mechanism by which a
prisoner can challenge a parole denial based upon due process or equal protection grounds. Therefore, Crumby may be
exempt from the exhaustion requirement with respect to those claims. Defoy v. McCullough, 393 F.3d 439, 445 (3d Cir.
2005); 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."). A federal court "may
bypass the exhaustion issue altogether should [it] decide that the petitioner's habeas claim fails on the merits." 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.")). Because Crumby's
due process and equal protection claims plainly have no merit, this Court "need not address the issue of exhaustion" with
respect to them. Id.

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To prevail on a substantive due process challenge to the Board's decision, Crumby 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."
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).
Crumby has not demonstrated that the Board's decision lacked "some basis." As reflected in its
March 28, 2015, decision, he was denied parole because based on an interview, a review of his file, and
consideration of the matters set forth in the relevant state statute, the Board determined that releasing
him on parole presented an unacceptable level of risk to the community. It also considered the negative
recommendation made by the prosecuting attorney. Although Crumby 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.
Finally, Crumby contends that the Board violated his equal protection rights because "[m]any of
the reasons for denial of parole will never change." He also contends that he is "being denied the
opportunity to make parole because of classification[,]" but he does not explain what that classification
is. [ECF No. 1 at 7].
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The Fourteenth Amendment's Equal Protection Clause provides that no State shall "deny to any
person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. "To prevail
on an equal protection claim, a plaintiff must present evidence that s/he has been treated differently from
persons who are similarly situated." Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010) (quoting
Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003)). "If state action does not burden a fundamental
Constitutional right or target a suspect class, the challenged classification must be upheld if there is any
reasonably conceivable state of facts that could provide a rational basis for the classification. If the
challenged state action involves a suspect classification based on race, alienage or national origin, or
infringes on a fundamental constitutional right, we must apply the strict scrutiny standard." Id. (quoting
Doe v. Pennsylvania Bd. of Prob. and Parole, 513 F.3d 95, 107 (3d Cir. 2008) (internal quotation marks
& citations omitted)).
Crumby's vaguely-stated equal protection claim also has no merit. As Respondents point out, the
Board is required by statute to consider the following factors:
(1) The nature and circumstances of the offense committed.
(2) Any recommendations made by the trial judge and prosecuting attorney.
(3) The general character and background of the inmate.
(4) Participation by an inmate sentenced after February 19, 1999, and who is serving a
sentence for a crime of violence as defined in 42 Pa.C.S. § 9714(g) (relating to sentences
for second and subsequent offenses) in a victim impact education program offered by the
Department of Corrections.
(5) The written or personal statement of the testimony of the victim or the victim's family
submitted under section 6140 (relating to victim statements, testimony and participation
in hearing).
(6) The notes of testimony of the sentencing hearing, if any, together with such additional
information regarding the nature and circumstances of the offense committed for which
sentence was imposed as may be available.

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(7) The conduct of the person while in prison and his physical, mental and
behavioral condition and history, his history of family violence and his complete
criminal record.
61 Pa.C.S. § 6135 (emphasis added). The factors considered by the Board to deny Crumby parole do not
require that he be treated differently than other inmates seeking parole and he has failed to provide any
evidence of his alleged disparate treatment from those similarly situated to him.

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." "When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of
appealability] should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists
of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). 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." Id. Applying those standards here, jurists of
reason would not find it debatable whether each of Crumby'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. Also, a
certificate of appealability is denied. An appropriate Order follows.

Dated: March 31, 2016

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

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