Wolfe v. Wetzel

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES A. WOLFE, Civil No. 3:20-cv-1153

Petitioner . (Judge Mariani)

v. .

JOHN E. WETZEL, et al, .

Respondents .

MEMORANDUM

Petitioner James Wolfe (“Wolfe”), an inmate currently confined at the State

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

habeas corpus pursuant to 28 U.S.C. § 2254 challenging a decision of the Pennsylvania

Board of Probation and Parole (the “Parole Board” or the “Board”). (Doc. 1). For the

reasons discussed below, the Court will deny the habeas petition.

l. Background

Wolfe is currently serving a sentence of 13 years, 4 months, and 27 days to 45

years, 5 months for homicide by vehicle while driving under the influerice (“D.U.I.”). (Doc. 1,

p. 1; Doc. 11, pp. 15-18). His maximum sentence date is April 3, 2046. (Doc. 11, pp. 15-

18). The Parole Board has denied Wolfe parole several times. (Doc. 2, p. 12; Doc. 11, pp.

20-29).

On December 6, 2013, the Parole Board denied Wolfe parole and advised him that

he was denied parole for the following reasons: (1) his need to participate in and complete

additional institutional programs; (2) his institutional behavior, including reported

misconducts; (3) his risk and needs assessment indicating his level of risk to the

community; (4) reports, evaluations and assessments/level of risk indicates his risk to the

community; (5) his failure to demonstrate motivation for success; (6) his minimization of the

nature and circumstances of the offense(s) committed; (7) his lack of remorse for the

offense(s) committed; and (8) the negative recommendation made by the prosecuting

attorney. (Doc. 11, pp. 20-21, Notice of Board Decision dated December 6, 2013).

On May 17, 2016, the Board again denied Wolfe parole. The following factors were

invoked by the Board to deny Wolfe parole: (1) his unsatisfactory supervision history; (2)

reports, evaluations and assessments/level of risk indicates his risk to the community; (3)

his minimization/denial of the nature and circumstances of the offense(s) committed; and (4)

the negative recommendation made by the prosecuting attorney. (Doc. 11, pp. 22-23,

Notice of Board Decision dated May 17, 2016).

On September 14, 2017, the Board denied Wolfe parole based on the following

factors: (1) reports, evaluations and assessments/level of risk indicates his risk to the

community; (2) his minimization/denial of the nature and circumstances of the offense(s)

committed; and (3) his lack of remorse for the offense(s) committed. (Doc. 11, pp. 24-25,

Notice of Board Decision dated September 14, 2017).

On May 8, 2018, the Board again denied Wolfe parole. The Board provided the

following reasons to deny Wolfe parole: (1) his risk and needs assessment indicating his

level of risk to the community; (2) reports, evaluations and assessments/level of risk

indicates his risk to the community; (3) his minimization/denial of the nature and

circumstances of the offense(s) committed; and (4) his lack of remorse for the offense(s)

committed. (Doc. 11, pp. 26-27, Notice of Board Decision dated May 8, 2018).

On May 21, 2019, the Board denied Wolfe parole based on the following reasons:

(1) his risk and needs assessment indicating his level of risk to the community; (2) reports,

evaluations and assessments/level of risk indicates his risk to the community; (3) his

minimization/denial of the nature and circumstances of the offense(s) committed; (4) his

lack of remorse for the offense(s) committed; and (5) the nature of the case and the

balancing of interests presented here. (Doc. 11, pp. 28-29, Notice of Board Decision dated

May 21, 2019).

On November 13, 2019, Wolfe filed a petition for writ of mandamus with the

Commonwealth Court of Pennsylvania challenging the May 21, 2019 parole decision. (Doc.

1, p. 3; see Wolfe v. Commonwealth of Pa., No. 624 M.D. 2019, 2020 WL 3256846 (Pa.

Commw. Ct. June 16, 2020)). Wolfe alleged that a change in the Board’s internal

procedures to require five votes instead of two votes to grant parole to inmates convicted of

D.U.I.-related homicide by vehicle violated the Ex Post Facto Clause of the United States

Constitution, and he requested that the Commonwealth Court review the Board’s denial of

parole. (/d.). On June 16, 2020, the Commonwealth Court dismissed Wolfe's petition for

writ of mandamus. Wolfe, 2020 WL 3256846.

On June 23, 2020, Wolfe filed the instant federal habeas petition. (Doc. 1). Wolfe

argues that the Board’s denial of parole was arbitrary and capricious and violates his

constitutional rights. (/d.). Specifically, he alleges that: (1) a change in the Parole Board's

internal procedures to require five votes instead of two votes to grant parole to inmates

convicted of homicide by vehicle while driving under the influence violates the Ex Post Facto

Clause of the United States Constitution; (2) he challenges the May 17, 2016 Board

decision wherein the Board listed a reason not to grant parole based on his unsatisfactory

supervision history; (3) the Board incorrectly classified him as a violent offender and a risk

to the community; and (4) the Board did not rely on its presentence investigation report. (/d.

at p. 5-10). For relief, Wolfe requests that the Court order a new parole hearing and instruct

the Board to apply the correct law. (/d. at p. 14). The petition is ripe for disposition.

ll. 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. Alex v. Gavin, No. 1:14-cv-261,

2015 WL 8012825, at *1 (M.D. Pa. Dec. 7, 2015). Instead, “[t]he 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. (quoting Billiteri v. U.S.

Bd. of Parole, 541 F.2d 938, 944 (2d Cir. 1976); see also Bridge v. U.S. Parole Comm'n,

981 F.2d 97 (3d Cir. 1992).

lll. Discussion

A. — Ex Post Facto Claim

The Ex Post Facto Clause of the Constitution states that “[nJo State shall. . . pass

any... ex post facto Law.” U.S. Const. art. |, § 10, cl. 1. The Ex Post Facto Clause

“applies to a statutory or policy change that ‘alters the definition of criminal conduct or

increases the penalty by which a crime is punishable.” Mickens-Thomas v. Vaughn, 321

F.3d 374, 383 (3d Cir. 2003) (quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 506 n. 3

(1995)).

“The ex post facto inquiry has two prongs: (1) whether there was a change in the law

or policy which has been given retrospective effect, and (2) whether the offender was

disadvantaged by the change.” Richardson v. Pa. Bd. of Prob. & Parole, 423 F.3d 282,

287-88 (3d Cir. 2005). The Supreme Court has noted that “[rletroactive changes in laws

governing parole of prisoners, in some instances, may be violative of [the Ex Post Facto

Clause].” Garner v. Jones, 529 U.S. 244, 250 (2000). This is because “[a]n adverse

change in one’s prospects for release [through parole] disadvantages a prisoner just as

surely as an upward change in the minimum duration of sentence.” Mickens-Thomas, 321

F.3d at 392.

Wolfe argues that the change in the Board's internal procedures to require five votes

instead of two votes to grant parole to inmates convicted of D.U.|.-related homicide by

vehicle violates the Ex Post Facto Clause. The Parole Board may have changed its policy

regarding the requisite number of votes, but the record does not reflect that such a change

disadvantaged Wolfe. Here, the Board’s decisions are clear that it considered numerous

factors as reasons for the parole denials. (See Doc. 11, pp. 20-29). Wolfe’s challenge to

the number of votes required by the Board does not alter the criteria the Board uses to

determine parole eligibility and does not alter his original sentence. Consequently, Wolfe

failed to satisfy his burden of showing that he was individually disadvantaged as a result of

the parole denials. Moreover, the Pennsylvania Commonwealth Court determined that a

change of internal Board policy increasing the number of affirmative votes required to grant

a prisoner parole does not violate the Ex Post Facto Clause because such an increase is

merely a procedural change that does not alter the criteria on which the Board determines

parole eligibility or a prisoner's original sentence. Myers v. Ridge, 712 A.2d 791, 798 (Pa.

Cmwilth. Ct. 1998). Therefore, Wolfe’s ex post facto claim fails.

B. Equal Protection Claim

The Equal Protection Clause guarantees all citizens “equal protection of the laws,”

meaning that similarly situated people must be treated the same. U.S. Const. amend. XIV.

To state an equal protection claim a person must allege that: (1) he was a member of a

protected class; (2) he was treated differently from similarly situated persons outside of his

protected class; and (3) the discrimination was purposeful or intentional rather than

incidental. See Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423-24 (3d Cir.

2000).

in order to successfully raise an equal protection claim, a plaintiff “must present

evidence that s/he has been treated differently from persons who are similarly situated.”

Williams v. Morton, 343 F.3d 212, 221 (3d Cir. 2003). In addition, in Rowe v. Cuyler, 534

F.Supp. 297, 301 (E.D. Pa. 1982), aff'd, 696 F.2d 985 (3d Cir.1982), the Court stated:

[N]o two prisoners, being different human beings, will possess identical

backgrounds and characters. Indeed, it is difficult to believe that any two

prisoners could ever be considered ‘similarly situated’ for the purpose of

judicial review on equal protection grounds of broadly discretionary decisions

because such decisions may legitimately be informed by a broad variety of an

individual's characteristics.

Id.

Wolfe alleges that his equal protection rights have been violated because other

inmates convicted of more serious offenses have been granted parole. (Doc. 1, p. 8; Doc.

2, p. 12). This contention is insufficient to support an equal protection violation. Wolfe, as a

convicted felon, is not a member of a suspect or quasi-suspect class with respect to an

equal protection claim. See Sanders v. Cty. of Bradford, No. 3:11-cv-1723, 2013 WL

2435354, at *36 (M.D. Pa. June 4, 2013) (citing Owens v. Ventura Cty. Superior Court, 42

F.Supp.2d 993, 998 (C.D. Cal. 1999) (“Over the years, the federal courts haye determined

that suspect classes for equal protection purposes include classifications based on race,

religion, alienage, national origin and ancestry.”)). Further, as discussed below, the Parole

Board's decision denying parole listed reasons grounded in the Parole Board's legitimate

discretion and it applied the appropriate factors established by the Pennsylvania

Legislature. Thus, Wolfe has not demonstrated that he is entitled to habeas relief under the

Equal Protection Clause.

C. Due Process Claim

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.”).

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; or (2) the Parole Board failed to apply appropriate,

rational criteria in reaching its determination. /d. at 236. “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 challeriged 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, Wolfe challenges the Parole Board’s May 17, 2016 denial of parole. (Doc. 1,

pp. 6-7). On May 17, 2016, the Parole Board filed a Notice of Board Decision, in which they

advised Wolfe that he was denied parole for the following reasons:

Your prior unsatisfactory supervision history.

* Reports, evaluations and assessments/level of risk indicates your risk to the

community.

* Your minimization/denial of the nature and circumstances of the offense(s)

committed.

* The negative recommendation made by the prosecuting attorney.

(Doc. 11, pp. 22-23, Notice of Board Decision dated May 17, 2016).

The Board further noted that at Wolfe’s next interview, the Board would review

Wolfe's file and consider:

* Whether you have maintained a favorable recommendation for parole from the

Department of Corrections.

« Whether you have maintained a clear conduct record.

(Id.).

Wolfe has not established that the May 17, 2016 denial of parole amounted to an

unreasonable exercise of the Parole Board's discretion. Rather, it is apparent from the

arguments raised in Wolfe's filings that he merely disagrees with the criteria the Parole

Board relied upon to deny him parole. (See Doc. 1). However, this challenge to the Parole

Board’s administrative decisions to deny Wolfe 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

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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.

Wolfe has not directed the Court to any factor relied upon by the Parole Board that

could be described as conscience shocking or deliberately indifferent. The Parole Board

appropriately relied on a combination of factors to deny Wolfe parole. Wolfe chooses to

challenge specific nuances of the Board’s rationale; hence, he merely disagrees with the

Board's conclusions, not the Board's criteria for evaluation. For example, he acknowledges

that he was denied parole, but disagrees with the Board’s description of Wolfe’s

“unsatisfactory supervision history” and his classification as a “risk to the community.” (See

Doc. 1, p. 6). His challenges to the Board's rationale relate to factual disagreements, which

do not equate to conscience shocking or deliberate indifference giving rise to a substantive

due process claim. Therefore, because Wolfe 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.

IV. Certificate of Appealability

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

certificate of appealability, an appeal may not be taken from a final order in a proceeding

under 28 U.S.C. § 2254. A certificate of appealability 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

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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-E/

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 Wolfe 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).

V. Conclusion

In accordance with the foregoing, the Court will deny Wolfe's petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. (Doc. 1). A separate Order shall issue.

LT — OY

Robert D: Mariani

United States District Judge

Dated: December B 2021

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