The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS BOPP, )
Petitioner, ) Civil Action No. 2:21-cv-767
)
v. )
) Magistrate Judge Patricia L. Dodge
MICHAEL CLARK, et al., )
)
Respondents. )
MEMORANDUM
Pending before the Court1 is the Petition for a Writ of Habeas Corpus (ECF 1) filed by
state prisoner Thomas Bopp (“Petitioner”) challenging the decision by the Pennsylvania Board of
Probation and Parole (“Board”) to deny him parole. For the reasons set forth below, the Court will
deny the Petition and deny a certificate of appealability.
I. Background
In 2003, Petitioner appeared before the Court of Common Pleas of Westmoreland County
(the “trial court”) and entered pleas of guilty to one count each of Rape, Involuntary Deviate Sexual
Intercourse, Aggravated Indecent Assault, and Indecent Assault. The trial court sentenced him to
an aggregate period of incarceration of not less than 12 ½ years to no more than 25 years of
incarceration,2 to be followed by a period of probation. It also classified Petitioner as a Sexually
1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to
have a United States Magistrate Judge conduct proceedings in this case, including entry of a final
judgment.
2 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.
Violent Predator. According to Respondents, Petitioner’s minimum sentence date expired on
January 2, 2017 and his maximum sentence will expire on July 2, 2024. (ECF 8 at p. 8.)
The Board denied Petitioner’s applications for parole in 2016, 2017 and 2018. (Resp’s Ex.
A, ECF 8-1 at pp. 30-35.) It is the Board’s September 2018 decision that Petitioner challenges in
this federal habeas case. (Pet.’s Ex., ECF 1-1 at pp. 2-3.) In that decision, which is dated September
7, 2018, the Board explained:
The reasons for the Board’s decision include the following:
Your risk and needs assessment indicating your level of risk to the community.
The negative recommendation made by the Department of Corrections.
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.
Your refusal to accept responsibility for the offense(s) committed.
Your lack of remorse for the offense(s) committed.
Your failure to develop a parole release plan.
- - -
Lack of insight into your deviancy, and lack of benefit from programing.
(Id.)3
In his Petition for a Writ of Habeas Corpus, Petitioner claims that the Board’s decision to
deny him parole violated unspecified “civil rights.” (ECF 1 at p. 6.) Petitioner, who admits that he
has “mental health issues,” contends that the Board should have granted him parole because “there
is mental health housing in society” where he could reside if the Board and the Pennsylvania
3 The Board advised Petitioner that he could file another application for parole after
September 7, 2019. (Pet’s Ex., ECF 1-1 at p. 3.) Petitioner does not assert that he applied for parole
after that date, and there is nothing in the record indicating that he did so.
Department of Corrections (“DOC”) would assist him in arranging for such housing. (Id.)
Petitioner also contends that the Board should have granted him parole because he had no
misconducts within a year of its September 7, 2018 decision, he had expressed his remorse for his
crimes and had “completed the issued sex offender class.” (Id.)
In their Answer (ECF 8, 9), Respondents contend that the Court should deny the Petition
because, among other things, any cognizable federal habeas claim asserted in it is time-barred
under the applicable one-year statute of limitations, which is set forth in the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) and codified at 28 U.S.C. § 2244(d)(1). Petitioner
did not file a Reply. LCvR 2241(D)(2) (“Although not required, the petitioner may file a Reply
(also known as ‘a Traverse’) within 30 days of the date the respondent files its Response.”).
II. Discussion
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 the 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). Errors of state law are
not cognizable. Id.; see, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). It is Petitioner’s
burden to prove 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).
Petitioner does not assert a claim that is cognizable under § 2254(a) in the Petition. He 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), and 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, 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. Here, Petitioner does not
explain how the Board’s decision to deny him parole amounted to a violation of any right under
the Constitution.
In any event, to the extent that Petitioner has asserted a cognizable claim in the Petition it
is time-barred. In 1996, Congress enacted AEDPA and substantially revised the law governing
federal habeas corpus. Among other things, AEDPA set a one-year limitations period for filing a
federal habeas petition. 28 U.S.C. § 2244(d)(1). Thus, Petitioner had one year from the date the
Board issued the decision he is challenging (that is, until on or around September 7, 2019) to file
a federal habeas petition. Petitioner did not file his Petition until, at the earliest, June 2, 2021,
which is the date he avers he placed it in the prison mail system. (ECF 1 at p. 18.) Therefore, to
the extent the Petition contains a cognizable claim for federal habeas relief it is untimely by
approximately 634 days.
The Supreme Court has held that AEDPA’s statute-of-limitations period “is subject to
equitable tolling in appropriate cases.” Holland v. Florida, 560 U.S. 631, 645 (2010) (emphasis
added). A petitioner is entitled to equitable tolling only if he shows both that: (1) he has been
pursuing his rights diligently, and (2) some extraordinary circumstance stood in his way and
prevented timely filing. Id. at 649. see, e.g., Wallace v. Mahanoy, 2 F.4th 133, 143-44 (3d Cir.
2021); Ross v. Varano, 712 F.3d 784, 798-804 (3d Cir. 2013); United States v. Thomas, 713 F.3d
165, 174-75 (3d Cir. 2013); Munchinski v. Wilson, 694 F.3d 308, 329-32 (3d Cir. 2012). “This
conjunctive standard requires showing both elements before we will permit tolling.” Sistrunk v.
Rozum, 674 F.3d 181, 190 (3d Cir. 2012) (emphasis in original)). There is nothing in the record to
suggest that this case is the rare one in which equitable tolling would apply.
Based upon the foregoing, the Court will deny the Petition because it does not state a
cognizable claim for habeas relief under § 2254(a). In the alternative, to the extent the Petition
does state a cognizable claim, that claim is time-barred. Because jurists of reason would not find
the Court’s conclusion debatable or wrong, it will deny a certificate of appealability.4
An appropriate Order follows.
Date: May 31, 2022 /s/ Patricia L. Dodge
PATRICIA L. DODGE
United States Magistrate Judge
4 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). “When the district court denies a habeas petition on
procedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate
of appealability] 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). 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.” Id. Applying
those standards here, jurists of reason would not find it debatable whether each of Petitioner’s
claims should be denied for the reasons given herein.