Marshall v. Ransom

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DWIGHT MARSHALL, Civil No. 3:21-cv-1554

Petitioner (Judge Mariani)

V.

KEVIN RANSOM, ef al, .

Respondents .

MEMORANDUM

Petitioner Dwight Marshall (“Marshall”) 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.

I. Background

The Commonwealth Court of Pennsylvania summarized the background of

Marshall's case as follows:

In 1998, [Marshall] was sentenced to 11 to 22 years in prison for murder in

the third degree and robbery, with a maximum date of January 15, 2019. He

obtained release on parole on March 3, 2008. Almost nine years later, as a

result of a traffic stop in Delaware, [Marshall] was charged with multiple

crimes related to his possession of 200.49 grams of powder cocaine and

67.94 grams of crack cocaine. Specifically, a court in the State of Delaware,

Kent County convicted [Marshall] for “DDEAL Tier 4 (F) Cocaine” under 16

Del. C. § 4752, and it sentenced him to eight years, custody level 5. Certified

Record (C.R.) at 17 (Sentence Order, 5/10/17). Delaware then extradited

[Marshall] to serve his sentence in Pennsylvania.

The new conviction subjected [Marshall] to a parole revocation hearing.

[Marshall] acknowledged his conviction, and signed a waiver of his right to a

hearing. C.R. at 36. The parole revocation hearing report recommended

“taking [his] street time” because [Marshall] “was on parole for Murder and

was convicted of felony drug related crimes.” C.R. at 35.

As a result of his out-of-state conviction, the Board recommitted [Marshall] to

serve 24 months as a [CPV]. In determining the appropriate recommitment

range, the Board determined that [Marshall’s] Delaware conviction most

closely related to the Pennsylvania crime of possession with intent to

manufacture or deliver a controlled substance (cocaine) under Section

13(a)(30) of The Controlled Substance, Drug, Device and Cosmetic Act

(Controlled Substance Act), [Act of April 14, 1972, P.L. 233, as amended, 35

P.S. § 780-113(a)(30),] that carries a statutory maximum sentence of 10

years. 37 Pa. Code § 75.1. Pursuant to 37 Pa. Code § 75.2, the presumptive

recommitment range for that new offense is 18 to 24 months. The Board did

not award [Marshall] credit for his time spent at liberty on parole because of

his “felony drug related crimes.” C.R. at [59]. Based on his conviction, the

Board recalculated [Marshall's] maximum sentence date as April 29, 2028.

Through counsel, [Marshall] filed an administrative appeal of the Board’s

recommitment order. The Board issued a decision, affirming and explaining

the term of recommitment. Because it stated a reason for denying [Marshall]

credit for his time spent at liberty on parole, the Board deemed moot his

challenge to its exercise of discretion in its denial of credit. C.R. at 73.

Marshall v. Pa. Bd. of Prob. and Parole, 2020 WL 5951546, at *1-2, 241 A.3d 107 (Pa.

Cmwlth. 2020) (Table) (citing Marshall v. Pa. Bd. of Prob. and Parole, 200 A.3d 643, 646-47

(Pa. Cmwith. 2018).

After the Board denied his administrative appeal, Marshall filed a petition for review

with the Commonwealth Court of Pennsylvania. (Doc. 8-2, pp. 2-5, Marshall v. Pa. Bd. of

Prob. and Parole, No. 172 MD 2018). The Commonwealth Court rejected Marshall's claims

that the Board violated his due process rights with respect to his waiver of a revocation

hearing, that the Board was not authorized to alter his judicially imposed sentence, and that

the Board applied the incorrect recommitment range. Marshall, 200 A.3d at 647-649.

However, regarding Marshall’s claim that the Board erred in failing to grant credit for the

time that he spent at liberty on parole, the Commonwealth Court remanded the issue back

to the Parole Board “for the limited purpose of explaining its exercise of discretion in its

credit determination, and to correct any error in exercising that discretion based on the facts

and circumstances of Marshall’s parole revocation.” /d. at 650-52.

On January 16, 2019, on remand, the Parole Board issued a decision modifying the

reason for not awarding Marshall credit for time spent on parole, as follows:

The Board in its{] discretion did not award credit to you for the time spent at

liberty on parole for the following reason(s):

Parolee was being supervised in Virginia and left without permission and was

arrested in Delaware with a very large amount of drugs (200 grams of powder

cocaine and 67 grams of crack cocaine). He returned to Virginia and did not

report his arrest as required.

(Doc. 8-2, pp. 6-7, Notice of Board Decision). As such, the Board kept Marshall's parole

violation maximum date of April 29, 2028. (/d.).

On February 15, 2019, Marshall filed a petition for administrative review with the

Board. (Doc. 8-2, pp. 8-19). On March 18, 2019, the Board issued a decision granting

Marshall reparole. (Doc. 8-2, pp. 20-22, Notice of Board Decision). Marshall was released

on parole on July 7, 2019. (Doc. 8-2, pp. 23-26). On July 22, 2019, the Board denied

Marshall’s February 15, 2019 administrative appeal of the January 16, 2019 Board action.

(Doc. 8-3, pp. 2-3).

Marshall then filed a petition for review of the Parole Board decision denying his

administrative appeal of the Board’s action that denied credit for the time that he spent at

liberty on parole following his recommitment as a convicted parole violator. On October 8,

2020, the Commonwealth Court of Pennsylvania affirmed the Board’s July 22, 2019

decision. Marshall, 2020 WL 5951546, 241 A.3d 107. On April 21, 2021, the Pennsylvania

Supreme Court denied Marshall's petition for allowance of appeal. Marshall v. Pa. Bd. of

Prob. and Parole, No. 428 EAL 2020, 252 A.3d 1078 (Pa. 2021) (Table).

On September 10, 2021, Marshall filed the instant federal habeas petition. (Doc. 1).

Marshall argues that the Board’s denial of credit for time spent on parole was arbitrary and

Capricious and violates his constitutional rights. (Doc. 1, p. 2; Doc. 2, p. 6). For relief,

Marshall requests that the Court vacate the order of the Pennsylvania Commonwealth Court

and award him credit for 9’ years spent at liberty on parole. (Doc. 1, p. 2; Doc. 2, p. 13).

Respondents argue that the petition must be denied because there is no indication that the

Parole Board abused its discretion by acting arbitrarily or capriciously in denying Marshall

credit for time spent at liberty on parole. (Docs. 8, 9). 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.” /d. (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).

I. Discussion

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 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, Marshall challenges the Parole Board’s January 16, 2019 denial of credit for

the time that he spent at liberty on parole following his recommitment as a convicted parole

violator. On January 16, 2019, the Parole Board recorded a Notice of Board Decision, in

which they advised Marshall that he was denied credit for time spent on parole for the

following reasons:

The Board in its[] discretion did not award credit to you for the time spent at

liberty on parole for the following reason(s):

Parolee was being supervised in Virginia and left without permission and was

arrested in Delaware with a very large amount of drugs (200 grams of powder

cocaine and 67 grams of crack cocaine). He returned to Virginia and did not

report his arrest as required.

(Doc. 8-2, p. 6, Notice of Board Decision).

Thereafter, on July 22, 2019, the Board affirmed its January 16, 2019 recommitment

decision stating, in relevant part:

Pursuant to the Supreme Court’s ruling in Pittman v. Pa. Bd. of Prob. and

Parole, the Board must articulate the basis for its decision to grant or deny a

convicted parole violator credit for time spent at liberty on parole. In this case

on your [BJoard decision mailed January 18, 2019, the Board articulated that

you were denied credit because while under supervision in Virginia you left

the state without permission and were arrested in Delaware with a large

amount of cocaine and crack cocaine and [your] failure to report when you

returned to Virginia. The record accurately reflects that you were arrested in

Delaware on October 22, 2016[,] and found to be in possession of 200 grams

of cocaine and 67 grams of crack cocaine. Additionally, after you posted

bond and were released from custody in Delaware you failed to return to

Virginia for supervision and failed to report the arrest to parole supervision.

Therefore, the reason provided for not awarding you credit for the time you

were at liberty on parole is sufficient.

Finally, the Board recalculated your maximum sentence date to April 29,

2028[,] based on your recommitment as a convicted parole violator. The

decision to recommit you as a convicted parole violator gave the Board

statutory authority to recalculate your sentence to reflect that you received no

credit for the period you were at liberty on parole. 61 Pa. C.S. § 6138(a)(2).

The Board denied you credit for time at liberty on parole in this instance. The

Board advised you of this potential penalty on the parole conditions you

signed on February 28, 2008. You also had constructive notice of this

potential penalty via the statute. Additionally, the ability to challenge the

recalculation decision after it is imposed satisfies your due process rights.

Therefore, the Board’s recalculation of your maximum sentence date did not

violate any constitutional provisions, including double jeopardy. Young v.

Commonwealth, 409 A.2d 843 (Pa. 1979).

The Board's regulations provide that the scope of review of an administrative

appeal is limited to whether the decision is supported by substantial evidence,

an error of law has been committed or there has been a violation of

constitutional law. 37 Pa. Code § 73.1(a)(2). The record in this matter

establishes that the Board decision mailed January 18, 2019 (recorded

1/16/2019) is supported by substantial evidence, does not constitute an error

of law, and does not violate your constitutional rights.

(Doc. 8-3, pp. 2-3).

On petition for review from the Board’s decision, the Commonwealth Court of

Pennsylvania affirmed the July 22, 2019 Parole Board decision and found that the factors

relied upon by the Board in refusing to grant credit under 61 Pa. C.S. § 6138(a) were

supported by the record; namely, that Marshall was arrested in Delaware for possessing

large quantities of powder cocaine and crack cocaine with the intent to deliver the same, he

left Virginia without permission to travel to Delaware to commit these crimes, and he failed

to notify the Virginia parole authorities of his arrest in Delaware for these crimes. Marshall,

2020 WL 5951546, at *6. The Commonwealth Court therefore determined that “it is clear

that the Board. . . has furnished a sufficient contemporaneous statement of the reasons

why it denied [Marshall] credit for the time that he was at liberty on parole, which is amply

supported by the certified record and relates to a number of [Marshall's] actions

contravening the conditions of his parole.” /d. at *7.

Marshall has not established that the January 16, 2019 denial of credit amounted to

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

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

Board relied upon to deny him credit for time spent at liberty on parole. (See Docs. 4, 2).

However, this challenge to the Parole Board’s administrative decision to deny Marshall

credit for time spent on parole is unavailing. See 61 Pa. C.S. § 6138 (granting the Parole

Board vast discretion to refuse to award credit for time spent at liberty on parole). The

record clearly reflects that the factors relied upon by the Parole Board in refusing to grant

credit under 61 Pa. C.S. § 6138(a) were supported by the record and the Parole Board

issued its decision in accordance with the statutory requirements of 61 Pa. C.S. § 6138.

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”). 61 Pa. C.S. § 6138(a)(1) provides that any parolee who commits a crime

punishable by imprisonment while on parole, and is convicted or found guilty of that crime,

may be recommitted as a convicted parole violator. 61 Pa. C.S. § 6138(a)(1). Further, 61

Pa. C.S. § 6138(a)(2.1) grants the Board discretion to award credit for the time spent at

liberty on parole to a convicted parole violator recommitted to serve the remainder of his

sentence, except when the recommitment involves the reasons in subsections

6138(a)(2.1)(i) and (ii) (violent and sexual offender crimes). 61 Pa. C.S. § 6138(a)(2.1).

Moreover, when Marshall was released on parole in 2008, he signed a document on

February 28, 2008 which stated the following relevant conditions of parole:

lf you are arrested on new criminal charges, the Board has the authority to

lodge a detainer against you which will prevent your release from custody,

pending disposition of those charges, even though you may have posted bail

or been released on your own recognizance from those charges.

If you violate a condition of your parole/reparole and, after the appropriate

hearing(s), the Board decides that you are in violation of a condition of your

parole/reparole you may be recommitted to prison for such time as may be

specified by the Board.

If you are convicted of a crime committed while on parole/reparole, the Board

has the authority, after an appropriate hearing, to recommit you to serve the

balance of the sentence or sentences which you were serving when

paroled/reparoled, with no credit for time spent at liberty on parole.

(Doc. 8-1, p. 14, Conditions Governing Parole/Reparole). Thus, Marshall was well aware of

the conditions of his parole and the potential penalties of any violations.

Marshall 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 Marshall credit for the time

spent at liberty on parole. Marshall merely disagrees with the Board's conclusions. For

example, he acknowledges that he left the state of Virginia without permission but argues

this was only a technical violation and did not warrant the denial of time credit. (See Doc. 2,

pp. 4-6). Marshall’s 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 Marshall 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.

10

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

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 □ COA. Thus, the Court will

decline to issue a certificate of appealability, as Marshall 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. Genclusion

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

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

SN tty

; Robert D. Mariani

United. Stales Distnci Judge

Dated: December te 2021

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