McCabe v. Mason

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES IRWIN MCCABE, :

Petitioner :

: No. 1:20-cv-2278

v. :

: (Judge Rambo)

BRENDA MASON, et al., :

Respondents :

MEMORANDUM

On December 7, 2020, pro se Petitioner James Irwin McCabe (“Petitioner”),

who is presently incarcerated at the State Correctional Institution Mahanoy in

Frackville, Pennsylvania (“SCI Mahanoy”), initiated the above-captioned action by

filing a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking to

challenge a decision by the Pennsylvania Board of Probation and Parole (“PBPP”)

to deny him parole. (Doc. No. 1.) Following an Order to show cause (Doc. No. 6),

Respondents filed their response on January 13, 2021 (Doc. No. 9). After receiving

an extension of time (Doc. Nos. 10, 11), Petitioner filed his traverse on March 3,

2021 (Doc. No. 18). Accordingly, Petitioner’s § 2254 petition is ripe for disposition.

I. BACKGROUND

In 1985, in Warren County, Pennsylvania, Petitioner was charged with rape,

corruption of minors, indecent assault, statutory rape, and involuntary deviate sexual

intercourse. (Doc. No. 9-1 at 4.) In 1986, Petitioner pled nolo contendere to

statutory rape, corruption of minors, and indecent assault, and the Court of Common

Pleas for Warren County sentenced him to two (2) to six (6) years’ incarceration.

(Id. at 2-3.) The basis for Petitioner’s convictions was his repeated rape of a nine

(9) year old girl and twelve (12) year old girl. (Id. at 6.) The twelve (12) year old

girl became pregnant from the rapes. (Id.) Petitioner was subsequently released on

parole and was discharged from parole on January 30, 1992. (Id. at 8.)

On March 6, 2010, in Fayette County, Pennsylvania, Petitioner was charged

with fifteen (15) counts of rape, involuntary deviate sexual intercourse, aggravated

indecent assault, indecent assault, sexual assault, and statutory sexual assault. (Id.

at 10-19.) These charges stemmed from Petitioner’s rape of a ten (10) year old girl

since she was two (2) years old. (Id.) The victim was the daughter of Petitioner’s

previous rape victim. (Id. at 21.) Pursuant to a plea agreement, the Court of

Common Pleas for Fayette County sentenced Petitioner to ten (10) to twenty (20)

years’ incarceration for rape by forcible compulsion and rape of a child. (Id. at 23-

55.) Petitioner’s controlling minimum sentence expired on March 15, 2020, and his

controlling maximum sentence expires on March 15, 2013. (Id. at 51.)

On December 5, 2019, the PBPP denied Petitioner’s application for parole.

(Id. at 57.) The PBPP denied Petitioner’s application for the following reasons: (1)

a negative recommendation by the Department of Corrections (“DOC”); (2)

Petitioner’s prior unsatisfactory parole supervision history; (3) reports, evaluations,

and assessments indicating that he posed a risk to the community; (4) Petitioner’s

failure to demonstrate motivation for success; (5) Petitioner’s minimization of the

nature and circumstances of his offenses; (6) his refusal to accept responsibility for

his offenses; and (7) Petitioner’s lack of remorse. (Id.) The PBPP also noted that

“repeated behaviors necessitate [a] longer period of stability.” (Id.) The PBPP noted

that Petitioner would be reviewed for parole again in or after November 2024. (Id.

at 58.) The PBPP noted further that at Petitioner’s next interview, it would consider

whether Petitioner: (1) received a favorable recommendation from the DOC; (2)

maintained a clear conduct record; and (2) completed the DOC’s prescriptive

programs. (Id.)

In his § 2254 petition, Petitioner avers that the PBPP’s decision to deny him

parole violates his rights under the Fourteenth Amendment’s Due Process Clause.

(Doc. No. 1 at 5.) Petitioner suggests that the PBPP used “reports, evaluations, and

assessments critical of [his] conduct, [without his] knowledge, and [without] the

opportunity to defend” against them. (Id.) He argues that the PBPP’s use of such

information caused reputational harm, in violation of Article I, Sections I and II of

the Pennsylvania Constitution. (Doc. No. 1-1 at 16-29.) Petitioner further suggests

that the PBPP violated his due process rights by not providing copies of the

documents it reviewed to Petitioner. Finally, he challenges the inability to appeal

the PBPP’s decision to the Court and asserts that 2 Pa. C. S. § 101, which prohibits

such an appeal, is unconstitutional. (Id. at 21-26.) As relief, Petitioner requests that

the Court find that his due process rights were violated and order his immediate

release. (Id. at 29-32.)

II. DISCUSSION

The United States Supreme Court has held that the granting of parole prior to

the expiration of a prisoner’s maximum term of imprisonment is not a liberty interest

protected by the Fourteenth Amendment’s Due Process Clause. See Greenholtz v.

Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Moreover, the

existence of a state parole system alone does not create a constitutionally protected

liberty interest. See Bd. of Pardons v. Allen, 482 U.S. 369, 373 (1987).

Pennsylvania’s Probation and Parole Act does not grant state prisoners any

constitutionally protected liberty interest in being released on parole prior to the

expiration of their controlling maximum sentences. See McFadden v. Lehman, 968

F. Supp. 1001, 1004 (M.D. Pa. 1997).

However, while Petitioner has no procedural due process right to parole, the

United States Court of Appeals for the Third Circuit has held that “even if a state

statute does not give rise to a liberty interest in parole release under Greenholtz, once

a state institutes a parole system all prisoners have a liberty interest flowing directly

from the due process clause in not being denied parole for arbitrary or

constitutionally impermissible reasons.” See Block v. Potter, 631 F.2d 233, 236 (3d

Cir. 1980). Consequently, a federal court may review a decision by the PBPP only

for abuse of discretion. See id. Upon such review, relief is available only if the

petitioner can show that parole was arbitrarily denied based on some impermissible

reason such as “race, religion, or political beliefs,” or that the PBPP made its

determination based on “frivolous criteria with no rational relationship to the

purpose of parole.” See id. at 236 n.2. Relief is also available if the PBPP’s

determination was rendered in the absence of the following due process protections:

(a) written notice of the claimed violations of parole; (b) disclosure to

the parolee of the evidence against him; (c) opportunity to be heard in

person and to present witnesses and documentary evidence; (d) the right

to confront and cross-examine adverse witnesses (unless the hearing

officer specifically finds good cause for not allowing confrontation);

(e) a “neutral and detached” hearing body such as a traditional parole

board, members of which need not be judicial officers or lawyers; and

(f) a written statement by the factfinder as to the evidence relied on and

reasons for revoking parole.

Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). It is clear, therefore, that “federal

courts . . . are not to second-guess parole boards, and the requirements of substantive

due process are met if there is some basis for the challenged decision.” See

Hunterson v. DiSabato, 308 F.3d 236, 246 (3d Cir. 2002); see also Coady, 251 F.3d

at 487. Moreover, 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.’” See Hunterson, 308 F.3d at 247.

In the instant case, Petitioner does not allege that he was denied parole based

on race, religion, ethnicity, political beliefs, or another impermissible reason. The

record before the Court indicates that the PBPP’s decision to deny Petitioner parole

was based upon the following reasons: (1) a negative recommendation by the

Department of Corrections (“DOC”); (2) Petitioner’s prior unsatisfactory parole

supervision history; (3) reports, evaluations, and assessments indicating that he

posed a risk to the community; (4) Petitioner’s failure to demonstrate motivation for

success; (5) Petitioner’s minimization of the nature and circumstances of his

offenses; (6) his refusal to accept responsibility for his offenses; and (7) Petitioner’s

lack of remorse. (Doc. No. 9-1 at 57.) The PBPP also noted that “repeated behaviors

necessitate [a] longer period of stability.” (Id.) Consequently, the PBPP’s decision

“was based on its discretion in applying the legitimate factors established by the

Pennsylvania Legislature.” See Rodriguez v. Mooney, No. 3:14-cv-139, 2017 WL

4320323, at *4 (M.D. Pa. Sept. 28, 2017); see also 61 Pa. Cons. Stat. § 6135 (setting

forth the criteria the PBPP is to consider when deciding whether to grant or deny

parole). Petitioner has not demonstrated that any of the factors considered by the

PBPP shock the conscience or that such factors constitute behavior that is intended

to injure him a way not justified by any legitimate government interest. See

McGinnis v. Royster, 410 U.S. 263, 277 (1973) (noting that it 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”); Gordon v. Wenerowicz, No. 1:10-cv-1257, 2011 WL 5509538, at *4

(M.D. Pa. Nov. 10, 2011) (concluding that a denial of parole because the petitioner

poses a risk to the community is not “conscience shocking”).

As noted supra, Petitioner maintains that the PBPP violated his due process

rights by not providing him copies of the documents considered to deny him parole

and by using information that damaged his reputation. Petitioner provides no

authority, and the Court has not located any authority, suggesting that Petitioner had

a right to such copies. Moreover, contrary to Petitioner’s assertion, an individual

does not have a protected interest in reputation alone. See Thomas v. Independence

Twp., 463 F.3d 285, 297 (3d Cir. 2006) (citing Paul v. Davis, 424 U.S. 693, 701

(1976)). Damage to reputation is only actionable if it occurs in the course of or is

accompanied by a change or extinguishment of a right or status guaranteed by state

law or the Constitution. See Paul, 424 U.S. at 701-12. Denial of parole, however,

does not satisfy this requirement because Plaintiff has no right to release on parole

under the United States Constitution or Pennsylvania law. Greenholtz, 442 U.S. at

7; Weaver v. Pa. Bd. of Probation and Parole, 688 A.2d 766, 770 (Pa. Commw. Ct.

1997).

Petitioner also challenges the inability to appeal the PBPP’s decision, arguing

that 2 Pa. C. S. § 101, which disallows such an appeal, is unconstitutional. The

Court, however, agrees with the Commonwealth Court of Pennsylvania that a

prisoner has no right to appeal a decision of the PBPP denying parole because of the

lack of a liberty interest in parole. See, e.g., Reider v. Bd. of Probation and Parole,

514 A.2d 967 (Pa. Commw. Ct. 1986). Rather, “[p]arole is a matter of grace and

mercy shown to a prisoner who has demonstrated to the [PBPP’s] satisfaction his

ability to function as a law abiding member of society.” Id. at 971. While a released

prisoner has a constitutionally guaranteed right to seek review of an adverse parole

revocation decision, Petitioner, as a result of his confinement, has no such right. See

Rogers v. Pa. Bd. of Probation and Parole, 724 A.2d 319, 322-23 (Pa. 1999). Thus,

Petitioner has failed to demonstrate that he is entitled to federal habeas corpus relief

under the Fourteenth Amendment’s Due Process Clause.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), 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).

“When the district court denies a habeas petition on procedural grounds without

reaching the prisoner’s underlying constitutional claim, a COA 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). In the instant matter, jurists

of reason would not find the disposition of Petitioner’s petition debatable. As such,

no COA will issue.

IV. CONCLUSION

For the foregoing reasons, Petitioner’s petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 (Doc. No. 1) will be denied and a COA will not issue.

An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Dated: March 8, 2021