Agnew v. Pennsylvania Board of Probation and Parole

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

HENRY AGNEW :

Petitioner : CIVIL ACTION NO. 3:19-1998

v. : (JUDGE MANNION)

:

PA BD OF PROB AND PAROLE,

:

Respondents

MEMORANDUM

Petitioner, Henry Agnew, an inmate confined in the State Correctional

Institution, Huntingdon, Pennsylvania, filed the instant petition for writ

of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. 1). Agnew challenges

an October 17, 2019, decision by the Pennsylvania Board of Probation and

Parole, denying him parole. Petitioner claims the decision violated the Due

Process Clause of the Fourteenth Amendment. Id. A response (Doc. 11) and

traverse (Doc. 17) having been filed, the petition is ripe for disposition. For

the reasons outlined below, the petition for writ of habeas corpus will be

denied.

I. Background

Petitioner is currently serving a total term of imprisonment of 4 years,

3 months to 8 years, 10 months, stemming from seven 2016 and 2017

convictions for Possession with Intent to Deliver a Controlled Substance (4

counts) and Criminal Use of a Communications Facility (3 counts). (Doc. 11-

1 at 2, Sentence Status Summary). The Department of Corrections

determined his minimum date to be January 23, 2020 and his maximum date

to be August 23, 2024. Id.

Prior to serving his current sentence, Petitioner, by Notice of Board

Decision dated December 12, 2007, was recommitted as a convicted parole

violator to serve his unexpired term of 3 months, 5 days for the unexpired

term for the offenses of simple assault, recklessly endangering another

person, firearms carried without a license and criminal mischief. (Doc. 11-1

at B, Notice of Board Decision).

By Notice of Board Decision dated October 17, 2019, the Board denied

Petitioner parole, based on the following:

As recorded on October 17, 2019, the Board of Probation and Parole

rendered the following decision in you case:

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, 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 need to participate in and complete additional institutional

programs.

Your institutional behavior, including reported misconducts.

Your risk and needs assessment indicating your level of risk to the

community.

Your prior unsatisfactory parole supervision history.

Reports, evaluations and assessments/level of risk indicates your risk

to the community.

You are to be reviewed in or after September 2020.

At your next interview, the Board will review your file and consider:

Whether you have successfully participated in/successfully completed

a treatment program for violence prevention.

Whether you have maintained 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).

You may file an application for parole/reparole no sooner than 1 year

after the date of the last decision denying parole/reparole was

recorded.

(Doc. 11-1 at 9, Notice of Board Decision).

On November 21, 2019, Petitioner filed the instant petitioner for writ of

habeas corpus in which he raises the following two issues:

1. Petitioner was denied due process of law as guaranteed by

the 14th Amendment to the United States Constitution where,

in deeming his release on parole, the Board relied upon

erroneous or otherwise inaccurate information, namely

Petitioner’s parole Supervision history.

2. Petitioner was denied due process of law as guaranteed by

the 14th Amendment to the United States Constitution where

the Board failed to provide him notice of the facts relied upon

in determining Petitioner poses a risk to the community.

(Doc. 1, petition). For relief, Petitioner seeks an evidentiary hearing and his

immediate release from custody. Id.

II. Standard of Review

A challenge to the denial of parole is cognizable under 28 U.S.C.

§2254. See Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) (jurisdiction

to entertain state prisoner’s habeas petition challenging denial of parole lies

under §2254). However, a federal district court may not grant parole or

determine parole eligibility. Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 944

(2d Cir. 1976). “The only remedy which the court can give is to order the

Board to correct the abuses or wrongful conduct within a fixed period of time,

after which, in the case of non-compliance, the court can grant the writ of

habeas corpus and order the prisoner discharged from custody.” Id.; see also

Bridge v. U.S. Parole Comm’n, 981 F.2d 97 (3d Cir. 1992).

III. Discussion

Petitioner advances the argument that the Parole Board’s denial

amounted to a violation of his right to due process. (Doc 1). Respondent

argues that the petition should be denied because there is no indication that

the Parole Board abused its discretion by acting arbitrarily or capriciously in

denying Petitioner parole. (Doc. 12).

The Fourteenth Amendment provides that no state shall “deprive any

person of life, liberty, or property, without due process of law.” U.S. Const.

amend. XIV §1. It is well settled that “there is no constitutional or inherent

right of a convicted person to be conditionally released before the expiration

of a valid sentence,” nor has the Commonwealth of Pennsylvania created

such a right. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.

1, 7 (1979); see also Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996)

(recognizing the general principle that the Pennsylvania parole statute does

not create a liberty interest in the right to be paroled); Coady v. Vaughn, 770

A.2d 287, 289 (Pa. 2001) (“It is undisputed that [an inmate] does not have a

clear legal right to the grant of parole, nor does the board have a

corresponding duty to grant the same.”).

“Since a discretionary decision of the Parole Board denying an inmate

early parole does not implicate any constitutionally [or state] protected liberty

interest, the scope of federal judicial review of these decisions is necessarily

quite limited.” Diehl-Armstrong v. Pa. Bd. of Prob. & Parole, No. 13-2302,

2014 WL 1871509, at *5 (M.D. Pa. May 7, 2014). The role of a federal court

is confined to reviewing the substance of the state parole decision to

determine whether the Parole Board exercised its authority in an arbitrary

and capricious, or constitutionally impermissible manner. Block v. Potter, 631

F.2d 233, 236 (3d Cir. 1980). Stated simply, the Court must evaluate whether

the Parole Board abused its discretion. In order to show a violation of

substantive due process, the petitioner must demonstrate that: (1) he was

arbitrarily denied parole on the basis of impermissible reasons such as race,

religion, or political beliefs, and/or (2) the Parole Board failed to apply

appropriate, rational criteria in reaching its determination. Id. at 236; Bonsall

v. Gillis, 372 F. Supp. 2d 805, 807 (M.D. Pa. 2005). “However, 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.” Coady, 251 F.3d at 487. The “relevant

level of arbitrariness required to find a substantive due process violation

involves not merely action that is unreasonable, but, rather, something more

egregious, which we have termed at times ‘conscience shocking’ or

‘deliberately indifferent’.” Hunterson v. DiSabato, 308 F.3d 236, 247 (3d Cir.

2002) (citation omitted).

Here, Petitioner has not established that the October 17, 2019 denial

of parole amounted to an unreasonable exercise of the Parole Board’s

discretion. No argument is made by Petitioner that the Parole Board based

its decisions to deny him parole on arbitrary or impermissible criteria in

violation of his substantive due process rights. Rather, it is apparent from the

arguments raised in Petitioner’s petition that he merely disagrees with the

criteria the Parole Board relied upon to deny him parole. However, this

challenge to the Parole Board’s administrative decisions to deny Petitioner

parole release is unavailing. See 61 Pa. C.S. §6137 (granting the Parole

Board vast discretion to refuse or deny parole). The record clearly reflects

that the Parole Board based its parole determinations on factors that it is

statutorily required to consider in accordance with 61 Pa. C.S. §6135; see

McGinnis v. Royster, 410 U.S. 263, 277 (1973) (holding that there is a

“legitimate desire of the state legislature to afford state prison officials an

adequate opportunity to evaluate both an inmate’s conduct and his

rehabilitative progress before he is eligible for parole”). Under 61 Pa. C.S.

§6135, the Parole Board must evaluate, among other factors: (1) the nature

and circumstances of the offense, (2) any recommendations made by the

trial judge and prosecuting attorney, (3) the general character and

background of the inmate, (4) 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, and (5) the conduct of the person while in prison and his physical,

mental and behavioral condition and history and his complete criminal

record.

Petitioner has not directed the Court to any factor relied upon by the

Parole Board that could be described as conscience shocking or

deliberatively indifferent. The fact that the Parole Board consistently relied

on a combination of factors to deny Petitioner parole, alone, does not rise to

the level of conscience shocking behavior that could give rise to a

substantive due process claim. Ralston v. Dep’t of Parole Prob., Civ. No.

12-1844, 2015 WL 1542480, at *5 (W.D. Pa. Apr. 7, 2015) (citing Gordon v.

Wenerowicz, Civ. No. 10-1257, 2011 WL 5509538, at *4 (M.D. Pa. Nov. 10,

2011)). Therefore, because Petitioner has failed to meet his burden of

demonstrating that the Parole Board abused its discretion, the Court will

deny the instant petition for a writ of habeas corpus pursuant to 28 U.S.C.

§2254.

IV. Petition for Early Parole Hearing

On May 18, 2020, Petitioner filed a “petition for early parole release

hearing,” in which he asks this Court to direct the Pennsylvania Department

of Probation and Parole (“Parole Board”) to conduct an early parole hearing

due to the COVID-19 pandemic. (Doc. 18).

It is clear from Petitioner’s petition that he is not entitled to habeas

relief, as this Court does not have jurisdiction to grant his requested relief.

Federal district courts are courts of limited jurisdiction, and “[t]he sole inquiry

for habeas jurisdiction is whether granting the petition as to the claim would

necessarily imply a change to the fact, duration, or execution of the

petitioner’s sentence.” Velazquez v. Superintendent Fayette SCI, 937 F.3d

151, 157 (3d Cir. 2019). Here, Petitioner does not seek an order directing

that he be paroled or otherwise released from custody—he seeks an order

directing that he be provided with a parole hearing at an earlier date than the

date offered by the Parole Board. (Doc. 18 at 2-3). However, the decision to

grant or deny parole is entirely discretionary. DeFoy v. McCullough, 393 F.3d

439, 444 (3d Cir. 2005). Thus, not only is any decision regarding when to

hold a parole hearing beyond the purview of the United States Constitution,

see Greenholtz, 442 U.S. at 7 (noting that “there is no constitutional or

inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence”), but, were the Court to grant the requested

relief, such an order would not “necessarily imply a change to the fact,

duration, or execution of the petitioner’s sentence,” Velazquez, 937 F.3d at

157, as the Parole Board could simply deny Petitioner parole. Consequently,

Agnew’s §2254 petition does not implicate this Court’s habeas corpus

jurisdiction, as his remedy lies with the Parole Board itself and his request

should be directed to that entity.

V. Certificate of Appealability

Pursuant to 28 U.S.C. §2253(c)(1)(A), unless a circuit justice or judge

issues a certificate of appealability (“COA”), an appeal may not be taken from

a final order in a proceeding under 28 U.S.C. §2254. A COA may issue only

if the applicant has made a substantial showing of the denial of a

constitutional right. 28 U.S.C. §2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the

district court’s resolution of his constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to

proceed further.” Miller-El v. Cockrell, 537 U.S. 322 (2003). Because

reasonable jurists could not disagree with the resolution of this petition, there

is no basis for the issuance of a COA. Thus, the Court will decline to issue a

certificate of appealability, as Petitioner has failed to demonstrate “a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§2253(c)(2); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000).

VI. Conclusion

In accordance with the foregoing, Petitioner, Henry Agnew’s petition for a

writ of habeas corpus filed pursuant to 28 U.S.C. §2254 (Doc. 1), will be

denied.

A separate Order will be issued.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: June 8, 2020

19-1998-01