BEGANDY v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JUSTIN BEGANDY, )

)

Petitioner, ) Civil Action No. 2:19-cv-639

)

v. )

) Magistrate Judge Patricia L. Dodge

PENNSYLVANIA BOARD OF )

PROBATION AND PAROLE, )

)

Respondent. )

MEMORANDUM

Pending before the Court1 is the Petition for a Writ of Habeas Corpus (ECF No. 4) filed by

state prisoner Justin Begandy (“Petitioner”). He challenges the decision of the Pennsylvania Board

of Probation and Parole (“Board”) about whether to release him on parole. For the reasons set forth

below, the Court will deny the Petition and deny a certificate of appealability.

I. Background

In March 2007, Petitioner was charged by Information filed in the Court of Common Pleas

of Allegheny County (the “trial court”) with one count each of robbery (Count 1), criminal attempt

to commit the crime of kidnapping (Count 2),2 aggravated assault with a deadly weapon (Count 3),

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to

have a U.S. Magistrate Judge conduct proceedings in this case, including entry of a final judgment.

2 The crime of kidnapping is defined at 18 Pa. Cons. Stat. § 2901 and it provides, in relevant part,

that “a person is guilty of kidnapping…if he unlawfully confines another for a substantial period

in a place of isolation, with any of the following intentions: (1) To hold for ransom or reward, or

as a shield or hostage.” 18 Pa. Cons. Stat. § 2901(a)(1). Count 2 of the Information charged

Petitioner with “attempting to confine the victim to a place of isolation which constituted a

substantial step toward the commission of the [crime of kidnapping] in violation” of 18 Pa. Cons.

Stat. § 901(a), which is Pennsylvania’s criminal attempt statute. (Pet’s Ex. F, ECF No. 4-1 at p.

50.)

terroristic threats (Count 4), possessing instruments of crime (Count 5), simple assault (Count 6),

and recklessly endangering another person (Count 7). (Pet’s Ex. F, ECF No. 4-1 at pp. 49-51.)

These charges stemmed from an incident that occurred on December 17, 2006. (Id.); see also

Commonwealth v. Begandy, 1306 WDA 2013, 2014 WL 10795084, *1 (Pa. Super. Ct.

Oct. 1, 2014) (“Begandy I”). On that date, Petitioner approached the victim as she was exiting her

car parked at a Pittsburgh area mall. Petitioner “forced his way into her car and attacked her with

a steak knife.” Id. The victim eventually “managed to free herself and fled into the mall. She had

suffered a laceration to her finger as [Petitioner] swung the knife at her.” Begandy I, 2014 WL

10795084 at *1 n.2.

On May 21, 2009, Petitioner “entered an open plea of nolo contendere to all charges, except

the robbery charge.” Id. at *1. (See also Pet’s Ex. G, Plea Hr’g Tr., 5/21/09, ECF No. 4-1 at pp.

53-55.) Petitioner’s sentencing hearing was held on August 12, 2009. Begandy I, 2014 WL

10795084 at *1. The trial court sentenced him to an aggregate term of twelve years and four months

to forty years of incarceration.3 Petitioner’s minimum sentence date expired on April 18, 2019.

His maximum sentence date is December 18, 2046.

The trial court’s original printed sentencing order erroneously indicated that Count 2 of the

Information was the crime of kidnapping instead of the crime of attempted kidnapping. Begandy I,

2014 WL 10795084 at *3 n.6. It appears that, as a result, the Pennsylvania Department of

Corrections’ (“DOC’s”) DC16E Sentence Status Summary sheet contained the same error. (Pet’s

Ex. A, ECF No. 4-1 at p. 4; Resp’s Ex. B, ECF No. 14-1 at p. 2.) Importantly, there is no allegation

3 Pennsylvania’s statutory sentencing scheme is indeterminate, meaning that a court will impose a

sentence with two numbers, which represent the minimum and maximum period of incarceration.

The minimum term is the earliest date that the defendant will be eligible for discretionary parole

release and the maximum term is the date upon which the defendant may be released from

confinement or parole supervision.

that the error in the trial court’s original printed order affected the length of the term the trial court

imposed at Count 2.

The trial court subsequently issued a corrected sentencing order which accurately reflected

that Petitioner was sentenced at Count 2 for the crime of attempted kidnapping. Begandy I, 2014

WL 10795084 at *3 n.6; see also Commonwealth v. Begandy, 1210 WDA 2015, 2016 WL

5528684, *1 (Pa. Super. Ct. Aug. 13, 2016) (“Begandy II”). However, it appears that no correction

was made to Petitioner’s DOC’s DC16E Sentence Status Summary sheet. (See Pet’s Ex. A, ECF

No. 4-1 at p. 4; Resp’s Ex. B, ECF No. 14-1 at p. 2.)

In June 2013, Petitioner filed a motion for collateral relief under Pennsylvania’s Post

Conviction Relief Act (“PCRA”). Begandy I, 2014 WL 10795084 at *1. He asserted that his

sentence was illegal because the trial court did not have the authority to issue the corrected

sentencing order. The trial court denied Petitioner’s PCRA motion and the Superior Court affirmed

in Begandy I, which it issued on October 1, 2014. Id. at *1-4.

In July 2015, the trial court granted Petitioner’s motion for nunc pro tunc relief and

permitted him to file a direct appeal of his judgment of sentence. See Begandy II, 2016 WL

5528684 at *1. Petitioner once again argued that his sentence was illegal because of the trial court’s

erroneous original printed sentencing order. Id. On August 31, 2016, the Superior Court issued

Begandy II and quashed Petitioner’s appeal for lack of jurisdiction because it concluded that

Petitioner’s motion for nunc pro tunc relief was in actuality an untimely second PCRA petition.

Id. at *1-2.

Although the trial court had corrected its original printed sentencing and the Superior

Court’s decisions in Begandy I and Begandy II accurately reflected the crimes for which Petitioner

was charged and sentenced, as late as December 2017 the trial court’s electronic docket sheet still

erroneously indicated that at Count 2 Petitioner had been sentenced for the crime of kidnapping

instead of the crime of attempted kidnapping. (See Pet’s Ex. K.1, ECF No. 4-1 at p. 66.) Therefore,

Petitioner sent a request to Carole Eddins, the Court Administrator for the criminal division of the

Court of Common Pleas of Allegheny County. He asked that the error on the trial court’s electronic

docket sheet be corrected. (See Pet’s Ex. D, Begandy v. Clerk of Courts of Allegheny County, et

al., 443 MD 2018, slip op. (Pa. Commw. Ct. Mar. 29, 2019) (“Begandy III”), ECF No. 4-1 at pp.

9-10.)

Eddins responded to Petitioner in correspondence dated March 6, 2018. She informed him

that the electronic docket sheet had been revised to correct the error. (Id. at p.10.) A printout of

Petitioner’s electronic docket sheet dated May 14, 2018 confirms that by that date the trial court’s

electronic docket sheet accurately reflected that at Count 2 Petitioner had been charged with, and

sentenced for, committing the crime of attempted kidnapping. (Pet’s Ex. K.2, ECF No. 4-1 at p.

67.)

In June 2018, Petitioner filed a mandamus petition in the Commonwealth Court of

Pennsylvania against Eddins and the Clerk of Courts of Allegheny County. In this mandamus

action, Petitioner sought an order of court directing the Clerk of Courts of Allegheny County to

make further corrections to the trial court’s electronic docket sheet. (Pet’s Ex. D, Begandy III, ECF

No. 4-1 at pp. 10-11.) On March 29, 2019, the Commonwealth Court issued Begandy III. Therein,

it explained that it was transferring the case to the Supreme Court of Pennsylvania, which has

general supervisory authority over the state courts. (Id. at pp. 16-18.) The Supreme Court of

Pennsylvania denied Petitioner’s mandamus petition on August 1, 2019. See Order in Begandy v.

Clerk of Courts Allegheny et al., 27 WM 2019 (Pa. Aug. 1, 2019).

Petitioner’s parole interview was held on December 17, 2018, when his mandamus action

was pending before the Commonwealth Court. His interview was conducted by Board Member

Leslie Grey and Hearing Examiner Carrie Everett. (ECF No. 4 at p. 16.) According to Petitioner,

Grey and Everett asked him about the offense of kidnapping since his DC16E Sentence Status

Summary sheet still indicated that at Count 2 he was sentenced for that offense. Petitioner

explained to Grey and Everett that he was not charged with, or sentenced for, the offense of

kidnapping and that he could produce proof if they required it. (ECF No. 4 at p. 17.) There is

nothing in the record to indicate that Grey and Everett did not accept Petitioner’s accurate

explanation regarding Count 2.

According to Petitioner, Grey and Everett also asked him about a detainer that federal

officials had lodged with the DOC.4 Petitioner advised Grey and Everett that his federal sentence

would have expired on October 27, 2017 and, therefore, the federal detainer should be removed.

(See Pet’s Ex. C, ECF No. 4-1 at pp. 7-8.)

The Board issued a decision in Petitioner’s case on December 24, 2018. (Pet’s Ex. A, ECF

No. 4-1 a p. 2). It explained that “following an interview with you and a review of your file, and

having considered all matters required[,]” it had determined, in the exercise of its discretion, that

he was denied parole. (Id.) The Board explained:

The reasons for [its] decision include the following:

4 When Petitioner committed the crimes in his state case, he violated the term of supervised

released he was serving on prior federal convictions. Petitioner explained to Grey and Everett that,

by order dated October 27, 2015, the federal district court had revoked his term of supervised

released and ordered that he serve a term of 24 months’ imprisonment concurrently with his state

sentence. (See Pet’s Ex. C, ECF No. 4-1 at pp. 7-8.) That is why Petitioner explained that his

federal sentence would have expired 24 months later, on October 27, 2017.

Your prior unsatisfactory parole supervision history.5

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

committed.

Your lack of remorse for the offense(s) committed.

(Id.) The Board also advised Petitioner that he would be considered for parole again “in or after

December, 2020[,]” and that at his next interview it would review his file and consider whether he

“maintained a favorable recommendation for parole from the Department of Corrections,”

“maintained a clear conduct record,” and an “update of federal detainer/time owed, if any to be

available at time of review.” (Id.)

In the Petition for a Writ of Habeas Corpus (ECF No. 4) Petitioner filed with this Court, he

claims that the Board’s decision to deny him parole violated his right to due process, was in

retaliation for the mandamus action he filed in 2018 to correct the errors on the trial court’s

electronic docket, and violated his right against self-incrimination. Respondents have filed their

Answer (ECF No. 14) and Petitioner has filed his Reply (ECF No. 27). Neither party has notified

the Court that the Board has issued any parole decision regarding Petitioner since it issued the

December 2018 decision at issue in this case.

II. Discussion

A. Jurisdiction

The Court has jurisdiction under 28 U.S.C. § 2254, which is the federal habeas statute

applicable to prisoners in custody pursuant to a state-court judgment. It permits a federal court to

grant a state prisoner a writ of habeas corpus “on the ground that he or she is in custody in violation

of the Constitution…of the United States.” 28 U.S.C. § 2254(a). It is Petitioner’s burden to prove

5 Petitioner previously committed the crime of bank robbery when he was on parole on a state

sentence. As a result, on November 13, 1998 the Board recommitted him as a convicted parole

violator. (Resp’s Ex. B, ECF No. 14-1 at p. 6.)

that he is entitled to the writ. Id.; see, e.g., Vickers v. Superintendent Graterford SCI, 858 F.3d

841, 848-49 (3d Cir. 2017).

B. The Exhaustion Requirement

State prisoners typically must “exhaust their claims in state court before seeking relief in

federal courts.” Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004) (citing 28 U.S.C.

§ 2254(b)(1)(A)). In 2005, in Defoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), the United States

Court of Appeals for the Third Circuit held that, aside from litigating an ex post facto claim,

Pennsylvania law does not provide a mechanism by which a prisoner can challenge a parole denial.

Id. at 445. Therefore, it held, a Pennsylvania prisoner who is challenging the denial of parole is

exempt from the exhaustion requirement with respect to all other types of constitutional claims.

Id.

The continuing validity of Defoy has been called into question, see, e.g., Bradley v.

Wingard, et al., No. 3:15-cv-235, 2017 WL 11476608, *2 (W.D. Pa. Oct. 12, 2017), report and

recommendation adopted, 2018 WL 10150909 (W.D. Pa. Sept. 5, 2018). In their Answer,

Respondents point out that the Board routinely defends challenges to parole refusals filed by

Pennsylvania inmates in the Commonwealth Court. Respondents assert that Petitioner’s claims

should be denied because he failed to exhaust them. (ECF No. 14 at p. 5 n.1.) However,

Respondents also asserted that they “will not challenge the holding [of Defoy] in this forum, but

are preserving the issue for appellate review.” (Id.)

Because Petitioner’s claims have no merit and it is more efficient for the Court to deny

them for that reason, the Court will not address the issue of exhaustion further. Roman v.

DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012) (a federal court “may bypass the exhaustion issue

altogether should [it] decide that the petitioner’s habeas claim fails on the merits”).

C. Discussion

1. Petitioner’s substantive due process claims

Petitioner has no right to parole under state law. See, e.g., Hudson v. Pennsylvania Bd. of

Prob. and Parole, 204 A.3d 392, 395 (Pa. 2019). Whether to grant him parole is a decision left to

the sole discretion of the Board. 61 Pa. Cons. Stat. Ann. §§ 6135, 6137; see, e.g., Homa v.

Pennsylvania Bd. of Prob. and Parole, 192 A.3d 329, 334 (Pa. Commw. Ct. 2018). Therefore, as

explained below, so long as denial of parole is not for reasons that are forbidden by the

Constitution, the grant or denial of parole is a discretionary matter that cannot be disturbed by a

federal court in a habeas proceeding.

Petitioner argues that the Board’s decision to deny him parole violated his substantive due

process rights.6 (ECF No. 4 at pp. 20-23.) The Fourteenth Amendment’s Due Process Clause

“contains a substantive component that bars certain arbitrary, wrongful government actions

regardless of the fairness of the procedures used to implement them.” Newman v. Beard, 617 F.3d

775, 782 (3d Cir. 2010) (internal quotation and citations omitted); see also Block v. Potter, 631

F.2d 233, 236 (3d Cir. 1980) (“Even if a state statute does not give rise to a liberty interest in parole

release…, 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.”). “Conduct can violate substantive due process if it shocks the conscience,

which encompasses only the most egregious official conduct.” Id. (emphasis added) (internal

quotations and citations omitted); see also Hunterson v. DiSabato, 308 F.3d 236, 248 (3d Cir.

2002) (“when an executive action is at issue, only the most egregious conduct will be considered

6Petitioner has no liberty interest in parole, Greenholtz v. Inmates of Nebraska Penal & Corr.

Complex, 442 U.S 1, 7 (1979), and he does not claim that the Board violated his procedural due

process rights when it denied him parole.

arbitrary in the constitutional sense.”). “As a general matter, it is governmental conduct intended

to injure that is most likely to rise to the conscience-shocking level.” Evans v. Sec’y Pennsylvania

Dept. of Corr., 645 F.3d 650, 660 (3d Cir. 2011) (internal citations and quotations omitted).

The Court of Appeals has explained that it would be arbitrary and capricious for the Board

to base its parole decision on a reason that has no “rational relationship to the purpose of parole[,]”

such as the “color of one’s eyes, the school one attended, or the style of one’s clothing.” Block,

631 F.2d at 236 n.2. It has further held that it “would violate due process if [a parole board] bases

a decision on constitutionally impermissible criteria such as race, religion, or the exercise of free

speech rights.” Id. at 237; see also Newman, 617 F.3d at 784.

Petitioner claims that the Board’s decision was “arbitrary” and was “not based on any

legitimate state/penological interest.” (See ECF No. 4 at pp. 20-23.) In support, he points out that

Grey and Everett asked him during his parole interview about the offense of kidnapping. He also

argues that they failed to take into his account his explanation that the federal detainer lodged

against him was moot since he would have completed the service of his federal sentence in 2017.

(ECF No. 4 at pp. 20-22.) Petitioner also claims that the Board reached the wrong decision when

it denied him parole because he contends that he is rehabilitated and is not a threat to the public

safety. (Id. at pp. 22-23.)

There is no merit to Petitioner’s claims that the Board violated his substantive due process

rights. In exercising its discretion in making a decision regarding parole, state law requires the

Board to consider factors such as “the nature and circumstances of the offense[s] committed,” “the

general character and background of the inmate,” “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 [the] sentence was imposed as may be available,” “the written or

personal statement of the testimony of the victim or the victim’s family,” and “the conduct of the

person while in prison and his physical, mental and behavioral condition and history, his history

of family violence and his complete criminal record.” 61 Pa. Cons. Stat. Ann. § 6135(a). The

Board’s decision reflected that it considered those required factors.

There is no basis for this Court to conclude that the Board’s decision was “arbitrary and

capricious” or based upon any factor prohibited by the Constitution. It was not inappropriate for

Grey and Everett to inquire about Count 2 during the parole interview given the earlier clerical

errors that had occurred in his case pertaining to that count. In any event, Petitioner has not

demonstrated that Grey and Everett did not believe him when he explained that he was charged

with, and sentenced for, the crime of attempted kidnapping and not the crime of kidnapping. That

is because by the time of his December 2018 parole interview the trial court’s electronic docket

sheet had been corrected to reflect that Count 2 was a charge for attempted kidnapping.

Additionally, documents contained in Petitioner’s criminal file, including the Information, the

transcript of his plea hearing, and the trial court’s corrected written sentencing order, as well as

the Superior Court’s decisions in Begandy I and Begandy II, provided an accurate account of the

charges filed against Petitioner and what occurred at his plea and sentencing hearings and in his

subsequent PCRA proceedings.

Furthermore, it was not inappropriate for the Board to advise Petitioner that it would

consider in his next parole evaluation an update regarding the federal detainer that had been lodged

with the DOC. If, as Petitioner informed Grey and Everett, his federal sentence had expired, then

Petitioner would be able to have the federal detainer removed prior to his next parole hearing.

In conclusion, in actuality Petitioner disagrees with the Board’s decision and wants this

Court to find that the Board erred in denying him parole. However, this Court is not evaluating

whether the Board made the correct decision and it is “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. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001).

Accordingly, based upon the foregoing, Petitioner has not demonstrated that the Board’s

decision violated his substantive due process rights. Thus, his substantive due process claims are

denied.

2. Petitioner’s retaliation claim

Petitioner claims that the Board violated his First Amendment rights by retaliating against

him because he filed the 2018 mandamus action in the Commonwealth Court. (ECF No. 4 at

pp. 16-19.) To prevail on a retaliation claim, the Petitioner must show that he engaged in

constitutionally-protected activity and that he suffered, at the hands of the Board, adverse action.

See, e.g., Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citing, inter alia, Allah v. Seiverling,

229 F.3d 220, 225 (3d Cir. 2000)); Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Once these

two threshold criteria are met, the Petitioner must then show that the protected activity was “a

substantial or motivating factor” in the Board’s decision to deny him parole.7 Id. (quoting Mount

Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)).

Petitioner has not demonstrated that the Board’s decision was in retaliation for filing his

mandamus action. That action was filed against Eddins and the Clerk of Court of Allegheny

County, not against Grey, Everett, the Board or any of its members. Petitioner has not explained

why anyone involved in his parole evaluation would have cared that he filed the mandamus action.

7 If the Petitioner had established a prima facie case, which he did not, the burden would then have

shifted to the Board to prove by a preponderance of the evidence that it would have taken the same

action even in the absence of the protected activity. Rauser, 241 F.3d at 333 (citing Mount Healthy,

429 U.S. at 287).

His conclusory allegation that the Board retaliated against him is not sufficient to establish it did

so. See, e.g., Gibson v. Overmyer, 1:17-cv-188, 2018 WL 889026, *3 (W.D. Pa. Feb. 14, 2018)

(inmate’s bald assertion that the Board retaliated against him was not sufficient to prevail on a

First Amendment retaliation claim).

Moreover, Petitioner has not demonstrated how the filing of the mandamus action against

Eddins and the Clerk of Court was a “substantial or motivating factor” in the Board’s decision to

deny him parole. It is the Petitioner’s burden to demonstrate that his constitutional rights have been

violated, see, e.g., Cullen, 563 U.S. at 181; Vickers, 858 F.3d at 848-49, and he did not meet his

burden here.

Accordingly, Petitioner’s claim that the Board’s decision to deny him parole violated his

First Amendment rights because it was retaliatory is denied.

3. Petitioner’s Fifth Amendment claim

Petitioner claims that the Board’s decision to deny him parole violated his Fifth

Amendment right against self-incrimination. (ECF No. 4 at p. 20.) His sole support for this claim

is his assertion that the Board must have determined that he minimized the nature and

circumstances of the offenses he committed, and also that he lacked remorse, because he accurately

explained to Everett and Grey that at Count 2 he was convicted of the offense of attempted

kidnapping and not the crime of kidnapping. (Id.)

The Fifth Amendment, as incorporated and made applicable to the states through the

Fourteenth Amendment, provides that no person “shall be compelled in any criminal case to be a

witness against himself.” U.S. CONST. amend. V. “Though a prisoner already may have been

convicted and imprisoned for an offense, the Fifth Amendment still applies to ensure that the

individual not be compelled to bear witness against himself or to divulge information that might

incriminate him in future criminal proceedings.” Roman, 675 F.3d at 210 (citing Minnesota v.

Murphy, 465 U.S. 420, 426 (1984)). “An individual trying to make out a Fifth Amendment claim

must demonstrate two key elements: compulsion and use.” Id.

Here, Petitioner has not demonstrated how his Fifth Amendment rights were implicated in

any way by the Board’s decision. He does not contend that Grey and Everett compelled him to

admit that he committed the crime of kidnapping. Moreover, as previously explained, there is no

basis for this Court to conclude that Grey and Everett did not accept Petitioner’s accurate

explanation that at Count 2 he was charged with and sentenced for the crime of attempted

kidnapping, given that his explanation was supported by records in his criminal file, including the

Information, the transcripts of his plea hearing, the trial court’s corrected written sentencing order,

the corrected electronic docket sheet, and the Superior Court’s decisions in Begandy I and

Begandy II.

Accordingly, Petitioner’s claim that his Fifth Amendment rights were violated by the

Board’s decision is denied.

D. Certificate of Appealability

A state prisoner may not appeal a district court’s order denying habeas relief “unless a

circuit justice or judge issues a certificate of appealability[.]” 28 U.S.C. § 2253(c)(1). “A certificate

of appealability may issue...only if the applicant has made a substantial showing of the denial of a

constitutional right.” Id. § 2253(c)(2). Where the district court has rejected a constitutional claim

on its merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000). Here, jurists of reason would not find the Court’s decision that Petitioner’s claims

have no merit to be debatable or wrong. Therefore, the Court will deny a certificate of

appealability.

III. Conclusion

Based upon all of the forgoing, the Court concludes that Petitioner has not satisfied his

burden of demonstrating that he is in custody in violation of his constitutional rights. The Court

will deny his Petition and it will deny a certificate of appealability.

An appropriate Order follows.

/s/ Patricia L. Dodge

Date: May 18, 2021 PATRICIA L. DODGE

United States Magistrate Judge