Salsman v. Adams

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHAD MICHAEL SALSMAN, : CIVIL NO. 1:24-cv-00911

:

Petitioner, :

:

v. : (Magistrate Judge Schwab)

:

:

SUPERINTENDENT :

MELINDA ADAMS, et. al., :

:

Respondents. :

MEMORANDUM OPINION

I. Introduction.

Petitioner Chad Michael Salsman (“Salsman”), has filed this Petition for

Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, arguing that the rescission of

his unexecuted parole grant violated his procedural and substantive due process

rights under the Fourteen Amendment. Doc. 1. The parties have consented to

proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). Doc. 8. Because

Salsman had no liberty interest in his unexecuted parole and has not shown the

Parole Board’s actions were arbitrary or capricious, we deny his petition and

decline to issue a certificate of appealability.

II. Background and Procedural History.

Salsman is currently a state prisoner serving his sentence imposed by the

Court of Common Pleas of Bradford County, Pennsylvania in Case No. CP-08-CR-

80-2021. On May 7, 2021, Salsman pleaded guilty to (1) promoting prostitution,

in violation on 18 Pa. C.S.A. § 5902(B)(1), (2) intimidation of a witness, in

violation of 18 Pa. C.S.A. § 4952, and (3) obstruction of the law, in violation of 18

Pa. C.S.A. § 5101. Doc. 1 at 1; Doc. 7-2 at 26.1 On July 9, 2021, he was sentenced

to a minimum aggregate imprisonment sentence of 18 months and a maximum

aggregate imprisonment sentence of 60 months. Doc. 7-2 at 26. Because Salsman

was the former district attorney in Bradford County, the district attorney’s office

recused itself from the case and the case was prosecuted by the Attorney General.

Doc. 9 at 6.

Salsman was first denied parole on April 12, 2022. Doc. 7-2 at 34. The

Pennsylvania Parole Board (“Parole Board”) stated its reasons for their decision, in

part, included: “[Salsman’s] need to participate in and complete additional

institutional programs. The negative recommendation made by the department of

corrections . . . [his] lack of remorse for the offense[s] committed” and “[t]he

negative recommendation made by the prosecuting attorney.” Id. Salsman

1 When citing to page numbers of a document, we use the page numbers from the

CM/ECF header on the top of the docket.

challenged the parole denial in a petition for review in the original jurisdiction of

the Commonwealth Court of Pennsylvania on February 3, 2023. Id. at 38–44.

After preliminary objections were briefed, but before they were decided, Salsman

discontinued the case. Id. at 54.

On June 22, 2023, Salsman was again denied parole. Id. at 56. The Parole

Board stated the reason for the denial included his “failure to demonstrate

motivation for success[,] [his] minimization/denial of the nature and circumstances

of the offense(s) committed[,] [his] lack of remorse for the offense(s)

committed)[,] [and] “[t]he negative recommendation made by the prosecuting

attorney.” Id. On August 16, 2023, Salsman challenged this parole denial in a

petition for review in the original jurisdiction of the Commonwealth Court of

Pennsylvania. Id. at 59–69. Briefing of the preliminary objections to the petition

for review was completed by December 14, 2023. Id. at 77–78. After briefing was

completed in this case, the Commonwealth Court issued its decision denying his

petition on August 26, 2024. Doc. 10-1.

In the meantime, Salsman was again interviewed for parole on January 5,

2024, and was granted parole on January 25, 2024. Id. at 81–82. However, on

March 14, 2024, before his parole grant was executed and Salsman was released

from prison, the Parole Board rescinded the grant. Doc. 7-2 at 84. The Parole

Board stated that the decision to rescind was made “due to new information” and

specifically stated that the reasons included “[t]he negative recommendation made

by the prosecuting attorney,” and “[t]he nature of the crime.” Id. Respondent

further explains that it was discovered that the prosecuting attorney was not

notified that Salsman was under parole consideration and, consequently, the Parole

Board had not received a recommendation from the prosecuting attorney prior to

granting parole on January 25, 2024. Doc. 7 at 2–3.

This time, Salsman did not challenge the Parole Board’s decision in state

court. Instead, Salsman filed this federal Petition for Writ of Habeas Corpus

pursuant to 28 U.S.C. § 2254 on June 3, 2024. Doc. 1. He alleges that the

rescission of his unexecuted parole violated his procedural and substantive due

process rights under the Fourteen Amendment.

We ordered Respondent to file a response to the Petition. Doc. 2.

Respondent has now filed its response (doc. 7), along with the relevant state

records (docs. 7-1–7-2), and Salsman has filed a reply brief (doc. 9). The parties

subsequently consented to Magistrate Judge jurisdiction pursuant to 28 U.S.C.

§ 636(c). Doc. 8. Additionally, after the Pennsylvania Commonwealth Court

issued its decision in Salsman’s mandamus challenge to his June 2023 parole

denial on August 26, 2024, Salsman filed a copy of that opinion as well. Doc. 10.

The matter is now ripe for review.

III. Legal Standards.

Salsman brings this action pursuant to 28 U.S.C. § 2254, which is the federal

habeas statute applicable to prisoners in custody pursuant to a state-court

judgment. The writ of habeas corpus may be granted “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 the 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).

A challenge to the denial of parole is cognizable under § 2254. Coady v.

Vaughn, 251 F.3d 480, 486 (3d Cir. 2001). However, the available relief is limited

as a federal court may not grant parole or determine parole eligibility. See Bridge

v. U.S. Parole Comm'n, 981 F.2d 97, 105 (3d Cir. 1992) (“A federal court may

review decisions of the Parole Commission for abuse of discretion, but the relief a

court may grant is limited”); Billiteri v. U.S. Bd. of Parole, 541 F.2d 938, 944 (2d

Cir. 1976) (“The 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.”).

IV. Discussion.

Salsman argues that rescinding his parole grant based on the ex parte

negative recommendation from the prosecuting attorney violated both his

procedural and substantive due process rights. While we decline to dismiss his

petition for failure to exhaust his state court remedies, Salsman’s due process

arguments fail. Thus, Salsman is not entitled to habeas relief.

A. Exhaustion Requirement.

Respondent first argues that Salsman’s petition must be dismissed for failure

to exhaust. “Federal habeas courts reviewing the constitutionality of a state

prisoner’s conviction and sentence are guided by rules designed to ensure that

state-court judgments are accorded the finality and respect necessary to preserve

the integrity of legal proceedings within our system of federalism.” Martinez v.

Ryan, 566 U.S. 1, 9 (2012). One of these rules is that a state prisoner must exhaust

available state remedies before filing a petition for habeas corpus in federal court.

28 U.S.C. § 2254(b) and (c). However, the Third Circuit has held that

constitutional claims relating to the denial of parole are exempt from the

exhaustion requirement because Pennsylvania does not provide a mechanism to

challenge claims of constitutional violations in the denial of parole. DeFoy v.

McCullough, 393 F.3d 439, 445 (3d Cir. 2005). Specifically, DeFoy relies on the

Commonwealth Court’s decision in Weaver v. Pennsylvania Bd. of Prob. &

Parole, 688 A.2d 766, 776 (Pa. Commw. Ct. 1997), which “held that mandamus is

not available to a prisoner denied parole based upon a constitutional error by the

parole board.” DeFoy, 393 F.3d at 444.

Respondent argues that DeFoy is no longer good law, as Commonwealth

Court decisions since DeFoy have routinely considered constitutional claims in

their original jurisdiction relating to Parole Board decisions denying parole. See

Doc. 7 at 5–6 (citing Homa v. Pa. Bd. of Prob. & Parole, 192 A.3d 329 (Pa.

Commw. 2018); Jennings v. Pennsylvania Dep’t of Corr., No. 522 M.D. 2015,

2016 WL 6994974 (Pa. Commw. Ct. Nov. 30, 2016); Tillman v. Pa. Bd. of Prob.

& Parole, No. 575 M.D. 2011, 2013 WL 3946301 (Pa. Commw. Ct. Feb. 22,

2013); Stief v. Pa Bd. of Prob. & Parole, No. 301 M.D. 2013, 2014 WL 2939185

(Pa. Commw. Ct. June 27, 2014); Wilson v. Pa. Bd. of Prob. & Parole, 942 A.2d

270 (Pa. Commw. Ct. 2008); Toland v. Pa. Bd. of Prob. & Parole, 263 A.3d 320

(Pa. Commw. Ct. 2021)). Moreover, Salsman himself sought and obtained review

of his 2023 parole denial through a mandamus action in the Commonwealth Court.

See Doc. 10-1.

Accordingly, some district courts have questioned “[t]he continuing validity

of Defoy.” Begandy v. Pa. Bd. of Prob. & Parole, No. 2:19-CV-639, 2021 WL

1986415, at *4 (W.D. Pa. May 18, 2021) (citing 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)); see also

Purcell v. Pa. Parole Bd., No. 3:23-CV-311-KAP, 2024 WL 5340671 (W.D. Pa.

Jan. 10, 2024) (summarily dismissing § 2254 petition challenging parole denial as

unexhausted because DeFoy is no longer good law), report and recommendation

adopted, 2025 WL 240959 (W.D. Pa. Jan. 17, 2025). However, other district

courts have found that DeFoy remains binding precedent. See Mathis v. Rivello,

No. CV 3:23-225, 2025 WL 524301, at *8 (M.D. Pa. Feb. 18, 2025) (“[T]he fact

remains that DeFoy is a precedential Third Circuit decision that remains binding

on this Court under principles of vertical stare decisis.”); Begandy v. Pa. Bd. of

Prob. & Parole, No. 2:19-CV-639, 2021 WL 1986415, at *4 (W.D. Pa. May 18,

2021) (acknowledging the issue of the continuing validity of DeFoy without

deciding the issue and noting that the respondent raised the argument to preserve

the issue for appellate review); see also Roman v. DiGuglielmo, 675 F.3d 204, 209

(3d Cir. 2012) (declining to address the issue of exhaustion in favor of deciding the

case on the merits, but noting that despite the potential shift in Pennsylvania law as

of 2012 they could not “comfortably say that it is clear enough to alter our decision

in DeFoy”).

Regardless, even assuming the Third Circuit would now find Salsman was

required to exhaust his administrative remedies, a federal court “may bypass the

exhaustion issue altogether should [it] decide that the petitioner’s habeas claim

fails on the merits.” Roman v. DiGuglielmo, 675 F.3d 204, 209 (3d Cir. 2012). We

elect to do so here.

B. Merits.

Salsman argues that “without a hearing, notice, or reasons given, on March

14, 2024, the Parole Board illegally and untimely rescinded the parole order based

on an ex parte communication with the Attorney General.” Doc. 1 at 5. Salsman

argues this action violated both his procedural and substantive due process rights.

However, Salsman had no liberty interest in an unexecuted parole grant and has

not shown that the decision was arbitrary or capricious. Accordingly, we find he

has not shown his due process rights were violated by the recission.

1. Procedural Due Process.

To state a procedural due process claim, Salsman must first identify a

“cognizable liberty or property interest.” Mudric v. Attorney Gen. of U.S., 469

F.3d 94, 98 (3d Cir. 2006) (citing Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 569 (1972)). However, “[t]here is no constitutional or inherent right of a

convicted person to be conditionally released before the expiration of a valid

sentence.” Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1,

7 (1979). And, the fact that Salsman’s unexecuted parole grant was rescinded does

not change the analysis: “[b]ecause Pennsylvania law provides that the Parole

Board may rescind a determination granting parole at any point before it is

“executed”—i.e., an inmate is released” a petitioner does “not have a liberty

interest in the pre-execution grant of parole.” Fantone v. Latini, 780 F.3d 184, 186

(3d Cir. 2015), as amended (Mar. 24, 2015); Brown v. Clemens, No. 23-3213, 2024

WL 4601681, at *1 (3d Cir. Oct. 29, 2024) (noting that, under Pennsylvania law,

until an inmate is released “‘[t]he decision to grant, rescind, or revoke parole is one

purely of administrative, not judicial, discretion,’ allowing the parole board to ‘at

any time rescind an order granting parole until it is ‘executed’—i.e., the inmate is

released on parole.’” (internal citations omitted)); see also Jago v. Van Curen, 454

U.S. 14, 16–17 (1981) (finding no liberty interest in release can be created by an

unexecuted parole grant where parole decisions are wholly within the discretion of

the state parole agency). Accordingly, despite Salsman’s objections to the lack of

hearing2 or notice prior to the rescission and the ex parte nature of the prosecuting

attorney’s recommendation, he cannot state a procedural due process violation

because he had no liberty interest in his unexecuted parole grant.

2 We also note that parole applicants have no right to a hearing under Pennsylvania

statute. See 61 Pa.C.S.A. § 6139(a)(4) (“Hearings of applications may be held by

the board whenever in its judgment hearings are necessary.” (emphasis added)).

2. Substantive Due Process

Salsman has also not shown his due process rights were violated. The Third

Circuit has found that even where there is no 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) (citing Perry v. Sundermann, 408 U.S. 593, 597 (1972) (“[E]ven though

a person has no ‘right’ to a valuable governmental benefit and even though the

government may deny him the benefit for any number of reasons, there are some

reasons upon which the government may not rely.”)). For example, the Parole

Board may not “deny parole on the basis of race, religion, or political beliefs, or on

frivolous criteria with 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.” Id. at

236, n.2. However, “when an executive action is at issue, only the most egregious

conduct will be considered arbitrary in the constitutional sense.” Hunterson v.

DiSabato, 308 F.3d 236, 248 (3d Cir. 2002). “[F]ederal 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 v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001).

Here, the Parole Board’s reason for the rescission of their previous grant of

Salsman’s parole is clear from both the notice and Respondent’s response: “the

negative recommendation made by the prosecuting attorney.” Doc. 7-2 at 84. As

explained by Respondent, it was discovered that the prosecuting attorney was not

notified that Salsman was under parole consideration, and, consequently, the

Parole Board had not received a recommendation from the prosecuting attorney

prior to granting parole on January 25, 2024. Doc. 7 at 2–3. The Parole Board also

cited the nature of the crime. Id. Consideration of the recommendation of the

prosecuting attorney as well as the nature of the crime are both among the areas the

Parole Board is statutorily required to consider when deciding whether to parole an

inmate. See 61 Pa.C.S.A. § 6135(a)(1), (2).

Nor is there any basis to find that the decision was arbitrary and capricious

because the details of negative recommendation were “ex parte.” Specifically,

Salsman argues that by not disclosing the negative recommendation, the

prosecuting attorney has violated the Rule 3.5 of the Pennsylvania Rules of

Professional Conduct. Doc. 9 at 14; Pa. R. Prof. Conduct 3.5 (providing in part that

a lawyer shall not “communicate ex parte with a [judge juror, prospective juror or

other official] during the proceeding unless authorized to do so by law or court

order”). Even if Salsman is correct that the prosecuting attorney’s ex parte

communication violated the Pennsylvania Rules of Professional Conduct, because

Salsman has no procedural due process rights, there is no federal basis to claim that

he was entitled to review his parole file himself. Nor would a violation of state law

be grounds for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991)

(quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)).

Salsman speculates that the negative recommendation could only be for

arbitrary or capricious reasons, because, according to Salsman he clearly met the

criteria for parole: “It is hard to imagine other than a mean spirited, vindictive and

revengeful Attorney General, that there is any reason for a negative

recommendation.” Doc. 9 at 14. Salsman further argues that there is “no

government interest here for this illegal and unprofessional rescission. This

rescission should shock one’s conscience.” Id. at 18; see also Doc. 1 at 17; Doc. 9

at 6, 10–11, 14.

While we recognize that Salsman does not have access to the contents or

details regarding the negative recommendation, his claims do not rise above a

speculative level. The Parole Board granted parole without having received the

recommendation of the prosecuting attorney. The Parole Board reconsidered its

decision after receiving the statutorily required recommendation. The fact that the

recommendation was negative is neither shocking (especially as all previous

recommendations had been negative) nor evidence in itself of a mean spirit,

vindictiveness and revenge on the part of the prosecuting attorney. And, more to

the point, it is not evidence that the Parole Board’s decision was arbitrary or

capricious. Again, the Parole Board was statutorily required to consider the

recommendation of the prosecuting attorney, see 61 Pa.C.S.A. § 6135(a)(2), and

Salsman has not identified a right to review all the materials the Parole Board

considers.

Accordingly, we find that Salsman has not shown a violation of his due

process rights stemming from the rescission of his unexecuted parole grant. His

petition is, therefore, denied.

IV. Certificate of Appealability.

For the reasons stated above, we will deny Salsman’s petition for a writ of

habeas corpus. A state prisoner may not appeal the denial of a habeas petition

“[u]nless a circuit justice or judge issues a certificate of appealability[.]” 28 U.S.C.

§ 2253(c)(1)(A). “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). “Where a district court has rejected the constitutional claims on the

merits, the showing required to satisfy § 2253(c) is straightforward: The 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). Because reasonable jurists would not find our assessment of the claim

debatable or wrong, we will not issue a certificate of appealability.

V. Conclusion.

Based on the foregoing, we will deny Petitioner Salsman’s petition for a writ

of habeas corpus and we will deny a certificate of appealability. An appropriate

order will be issued.

S/Susan E. Schwab

Susan E. Schwab

United States Magistrate Judge