RICKER v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DAVID RICKER, )

) Case No. 2:24-cv-01512

Petitioner, )

)

v. ) District Judge Christy Criswell Wiegand

) Magistrate Judge Kezia O. L. Taylor

PENNSYLVANIA BOARD OF )

PROBATION AND PAROLE, et al., )

)

Respondents. )

REPORT AND RECOMMENDATION

I. RECOMMENDATION

For the reasons set forth herein, it is respectfully recommended that the Petition for Writ

of Habeas Corpus, ECF No. 1, be denied and that a certificate of appealability also be denied.

II. REPORT

A. Relevant Procedural History

On October 26, 2017, Petitioner David Ricker (“Petitioner”) was sentenced to a term of

five to ten years of incarceration. ECF No. 5-1 at 5-7. The controlling dates of Petitioner’s

minimum and maximum sentences were recorded as December 26, 2022 and December 26,

2027, respectively. Id. at 6, 9.

Petitioner was denied parole in decisions rendered by the Pennsylvania Board of

Probation and Parole (“the Board”) on September 2, 2022; September 7, 2023; and September

30, 2024. Id. at 13-14, 16-17, 57-58. The current Petition for Writ of Habeas Corpus

(“Petition”) challenges Petitioner’s denial of parole on September 30, 2024. Petitioner appears

to argue that the Board’s decision violated his rights under Fourteenth Amendment to the United

States Constitution.

B. Discussion

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

applicable to prisoners like Petitioner who are 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 that he is entitled to the writ. See id.

a. Exhaustion

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 Defoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), the Third Circuit Court

of Appeals noted 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 that 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.

In their Answer, Respondents note that Petitioner had the ability to challenge his parole

denial by filing a petition for writ of mandamus in the Commonwealth Court of Pennsylvania

because since Defoy the Commonwealth Court now routinely considers constitutional challenges

to Board decisions denying parole. See ECF No. 5 at 5-6 (citing Commonwealth Court cases

after Defoy). Because Petitioner did not first seek review in the Commonwealth Court, and it is

now too late for him to do so, Respondents argue that Petitioner’s claims are procedurally

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defaulted and should be dismissed as such because he has provided no basis to excuse his

default.

It is noted that the continuing validity of Defoy has been called into question by this

Court. See, e.g., Bradley v. Wingard, No. 3:15-cv-235, 2017 WL 11476608, at *2 (W.D. Pa.

Oct. 12, 2017), report and recommendation adopted, 2018 WL 10150909 (W.D. Pa. Sept. 5,

2018). Nevertheless, it has not yet been overruled and this Court has no discretion to disregard

binding precedent. However, a court “may bypass the exhaustion issue altogether should [it]

decide that the petitioner’s habeas claim fails on the merits.” See Roman v. DiGuglielmo, 675

F.3d 204, 209 (3d Cir. 2012). Because it is plainly apparent that Petitioner’s claims lack merit,

the Court will decline to make a ruling on exhaustion and instead proceed to a review of

Petitioner’s claims.

b. Merits

Based on the Court’s review of the Petition, it appears that Petitioner is making a due

process challenge to the Board’s decision. In this regard, the Fourteenth Amendment provides

that the State may not “deprive any person of life, liberty, or property without due process of

law.” U.S. CONST. amend. XIV. An examination of a procedural due process claim under the

Fourteenth Amendment proceeds in two steps. See Board of Regents of State Colleges v. Roth,

408 U.S. 564, 571 (1972). First, the court must determine whether there exists a liberty or

property interest which has been interfered with by the state. Kentucky Dept. of Corr. v.

Thompson, 490 U.S. 454, 460 (1989) (citing Board of Regents, 408 U.S. at 571). Second, and if

and only if a petitioner establishes the existence of a protected interest, the court must examine

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whether the procedures attendant upon that deprivation were constitutionally sufficient. Id.

(citing Hewitt v. Helms, 459 U.S. 460, 472 (1983)).

The underlying liberty interest necessary for procedural due process can either be derived

from the Due Process Clause itself or from a state’s statutory scheme. See Asquith v. Dep’t of

Corr., 186 F.3d 407, 409 (3d Cir. 1999) (“A protected liberty interest may arise from only one of

two sources: the Due Process Clause or the laws of the state.”) However, the Supreme Court has

held that the Constitution does not establish a liberty interest in parole that invokes due process

protections. See Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7

(1979) (stating that there is “no constitutional or inherent right of a convicted person to be

conditionally released before the expiration of a valid sentence.”) And, both federal and

Pennsylvania state courts have held that there is no protected liberty interest in parole under

Pennsylvania law, either. 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); Rogers v. Pennsylvania Bd. of Prob. & Parole, 724 A.2d 319, 322-23 (Pa. 1999).

See also Newman v. Beard, 617 F.3d 775, 783 (3d Cir. 2010). Given this absence of a protected

liberty interest, there can be no procedural due process violation. As such, Petitioner’s

procedural due process claim should be denied.

As to any substantive due process challenge Petitioner may be making, the Third Circuit

Court of Appeals has stated that “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.” Block v. Potter, 631 F.2d 233, 236 (3d Cir. 1980). The

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Supreme Court has stated that “although a person may have no ‘right’ to a valuable government

benefit, and may be denied it for any number of reasons, ‘there are some reasons upon which the

government may not rely.’” Burkett, 89 F.3d at 139 (citing Perry v. Sindermann, 408 U.S. 593,

597 (1972)). A state may not deny parole on constitutionally impermissible grounds, such as

race or in retaliation for exercising constitutional rights. Id. at 140. In addition, a state may not

base a parole decision on factors bearing no rational relationship to the interests of the

Commonwealth. Block, 631 F.2d at 237.

However, a substantive due process claim is “not easily mounted.” Hunterson v.

DiSabato, 308 F.3d 236, 246 (3d Cir. 2002). Indeed, “[t]he relevant level of arbitrariness

required in order 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.’” Id. at 246-47; see also Newman, 617 F.3d at 782.

“[O]nly the most egregious conduct will be considered arbitrary in the constitutional sense.” Id.

at 247-48. Finally, “federal courts are 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).

Petitioner summarily claims that the Board denied him parole for “arbitrary, egregious

and capricious reasons[,]” ECF No. 1-2, and for reasons that “bear no rational relationship to

rehabilitation or deterrence[.]” ECF No. 1-3. However, he fails to demonstrate that he was

denied parole for any impermissible reason or allege any facts that can support the conclusion

that the Board’s decision lacked “some basis.” As reflected in the Board’s decision, Petitioner

was denied parole after an interview, a review of his file, and consideration of the matters set

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forth in the Prisons and Parole Code. See ECF No. 5-1 at 57. The Board determined that

Petitioner was not suitable for parole due to his risk and needs assessment indicating a level of

risk to the community, his failure to demonstrate motivation for success, his minimization/denial

of the nature and circumstances of the offenses committed, and his lack of remorse for the

offenses committed. Id. Petitioner’s arguments that he should have been granted parole because

of his character, clear conduct record, lack of previous criminal record, completion of all

required programming, positive comments from corrections staff and apology/expression of

remorse to the victim is essentially an invitation for this Court to substitute its judgment for that

of the Board, which it is not authorized to do. This Court is not to evaluate whether the Board

made the correct decision, only that its decision was not based on any factor prohibited by law,

which Petitioner has not demonstrated. As such, his substantive due process claim should be

denied, as well.

C. Certificate of Appealability

An appeal may not be taken to the court of appeals from a final order in a § 2254

proceeding unless a judge issues a certificate of appealability on the ground that “the applicant

has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 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). Petitioner has not

made the requisite showing in this case. Accordingly, a certificate of appealability should be

denied.

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III. CONCLUSION

For the aforementioned reasons, it is respectfully recommended that the Petition for Writ

of Habeas Corpus, ECF No. 1, be denied and that a certificate of appealability also be denied.

In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and rule

72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of

service of a copy of this Report and Recommendation to file objections. Any party opposing the

objections shall have fourteen (14) days from the date of service of objections to respond thereto.

Failure to file timely objections will constitute a waiver of any appellate rights.

Dated: January 28, 2025.

/s/ Kezia O. L. Taylor

Kezia O. L. Taylor

United States Magistrate Judge

Cc: David Ricker

NF4503

SCI Pine Grove

189 Fyock Road

Indiana, PA 15701

Counsel of record

(Via CM/ECF electronic mail)

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