MCKAHAN v. THOMPSON

Filing 33

MEMORANDUM OPINION & ORDER denying 1 Petition for Writ of Habeas Corpus filed by CHARLES O. MCKAHAN; denying a Certificate of Appealability; and denying as moot 32 Petitioner's MOTION for response from court re Petition for Writ of Habeas Corpus. The Clerk is directed to mark this case closed. Petitioner has thirty (30) days in which to file a notice of appeal. Signed by Magistrate Judge Lisa Pupo Lenihan on May 3, 2018. (kcc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES O. MCKAHAN,
Petitioner,
v.
WARDEN THOMPSON,
Respondent.

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Civil Action No. 17 – 463
Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION
Pending before the Court is a Petition for Writ of Habeas Corpus filed by Petitioner
Charles O. McKahan (“Petitioner”) pursuant to 28 U.S.C.§ 2254, wherein he challenges the
Pennsylvania Board of Probation and Parole’s decision to deny him parole on January 12, 2017,
and require that he serve his unexpired maximum sentence of September 1, 2020. (ECF Nos. 1,
1-1.) For the reasons set forth below, the Petition is denied and a Certificate of Appealability is
denied.
A. Relevant Background
On April 2, 2015, in the Court of Common Pleas of Fayette County, Petitioner pled guilty
to the charges of driving under the influence (DUI) – general impairment with refusal, 75 Pa.
C.S.A. § 3802(a)(1); driving while suspended, 75 Pa. C.S.A. § 1543(b)(1); driving an
unregistered vehicle, 75 Pa. C.S.A. § 1301(a); and driving the wrong way, 75 Pa. C.S.A. §
3308(b). (ECF No. 26-1; Commonwealth v. McKahan, CP-26-CR-0000147-2015 (Ct. Common
Pleas, Fayette County.)) Petitioner was sentenced on May 20, 2016; on count 1, DUI – general
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impairment with refusal, Petitioner was sentenced to inter alia 18 months to 5 years of
incarceration, on count 2 – driving while suspended, Petitioner was sentenced to a term of
imprisonment of 90 days to run consecutive to count 1. (ECF No. 26-2.) At count 1, the
sentencing court found that Petitioner was eligible for the Recidivism Risk Reduction Incentive
(“RRRI”) program, 1 and his RRRI minimum sentence expiration date was established at thirteen
and one-half (13½) months. Id.
Petitioner appealed the judgment of sentence to the Superior Court of Pennsylvania,
claiming that the trial court erred in considering at the time of sentence another DUI for which he
was sentenced after the subject DUI in case number 147 of 2015 occurred. (ECF No. 26-3; No.
871 WDA 2015.) The Superior Court determined that if the trial court had considered
Petitioner’s other DUI in sentencing him at case number 147 of 2015, then it would have erred.
However, not only was it unclear if the trial court did so, but the Superior Court determined that
Petitioner’s sentence still comported with the applicable sentencing guidelines. Accordingly, his
judgment of sentence was affirmed on June 13, 2016. Id. Petitioner filed no further appeal of
his judgment of sentence.
On April 3, 2017, Petitioner filed a petition pursuant to Pennsylvania’s Post Conviction
Relief Act (“PCRA”). (ECF No. 26-4.) Shortly thereafter, he filed the instant Petition for Writ
of Habeas Corpus in the above captioned case on April 12, 2017. (ECF No. 1.) Respondent
filed a Motion to Dismiss the Petition on the basis that Petitioner’s PCRA petition was still
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.
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pending in state court. (ECF No. 5.) In an Order dated May 31, 2017, this Court dismissed the
Petition for Writ of Habeas Corpus without prejudice, and the matter was stayed and
administratively closed while Petitioner pursued his remedies in state court. (ECF No. 13.)
Despite having court-appointed counsel for his PCRA petition, Petitioner filed a pro se
motion to withdraw his PCRA petition on June 8, 2017. (ECF No. 26-5.) As he was
represented, the motion was disregarded by the Fayette County Clerk of Courts. Id.
On June 14, 2017, Petitioner attempted to reopen the instant proceeding. (ECF No. 14.)
However, his request to reopen was denied because his PCRA petition remained pending. (ECF
No. 18.) Through counsel, Petitioner moved to withdraw his PCRA petition on July 27, 2017.
The trial court granted the motion on August 8, 2017, withdrew and dismissed the PCRA
petition, and authorized Petitioner’s court-appointed counsel to withdraw. (ECF No. 26-6.) As
the PCRA petition was withdrawn, this Court permitted Petitioner to reopen this case on August
30, 2017. (ECF No. 23.) Respondent filed an Answer to the Petition for Writ of Habeas Corpus
on October 11, 2017. (ECF No. 26.) It is now ripe for review.
B. Discussion
Petitioner claims that the Pennsylvania Board of Probation and Parole (“the Board”)
violated his right to due process when they denied him parole on January 12, 2017. (ECF No. 1,
p.5.) It is unclear from the Petition as to whether Petitioner is challenging a violation of his
procedural or substantive due process rights. Therefore, both will be addressed.
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
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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)). 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.
To prevail on a substantive due process challenge to the Board’s decision, 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 second-guess parole boards and the requirements
of substantive due process are met if there is some basis for the challenged decision.” Coady v.
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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).
Petitioner has not demonstrated that the Board’s decision lacked “some basis.” As
reflected in its most recent decision, the Board denied Petitioner parole after an interview and
review of his file. The Board’s decision was based on the following: Petitioner’s prior
unsatisfactory parole supervision history; his risk to the community; his failure to demonstrate
motivation for success; his minimization/denial of the nature and circumstances of the offense(s)
committed; his refusal to accept responsibility for the offense(s) committed; his lack of remorse
for the offense(s) committed; and the fact that Petitioner had 9 DUIs, which indicated that he was
an ongoing risk. (ECF No. 1-1.) Although Petitioner disagrees with the Board’s assessment of
him, (e.g., he states that he only had 2 DUIs in 10 years (9 overall), that he did prescribed
programming and even extra programming that was not required, he has his own business, he
maintained misconduct free in prison and that he submitted an adequate home plan and relapse
prevention and reentry plan) 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. His claims, therefore, are
without merit.
C. Certificate of Appealability
A court should issue a Certificate of Appealability where a petitioner makes a
“substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A
petitioner meets this burden by showing that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
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484 (2000). Applying that standard here, jurists of reason would not find it debatable whether
Petitioner’s claims should be denied. Accordingly, this Court will not issue a Certificate of
Appealability.
Dated: May 3, 2018.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHARLES O. MCKAHAN,
Petitioner,
v.
WARDEN THOMPSON,
Respondent.

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Civil Action No. 17 – 463
Magistrate Judge Lisa Pupo Lenihan

ORDER
AND NOW, this 3rd day of May, 2018, and for the reasons stated in this Court’s
Memorandum Opinion filed contemporaneously herewith,
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus (ECF No. 1) is
denied.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that the Motion for response from court re Petition for
Habeas Corpus (ECF No. 32) is denied as moot.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge
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Cc:

Charles O. McKahan
MM3371
SCI Mercer
801 Butler Pike
Mercer, PA 16137
Counsel for Respondent
(Via CM/ECF Electronic Mail)

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