Coady v. Vaughn

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

5-31-2001

Coady v. Vaughn

Precedential or Non-Precedential:

Docket 98-1311

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Filed May 31, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 98-1311

JOSEPH COADY

Appellant

v.

DONALD T. VAUGHN; THE DISTRICT A TTORNEY OF THE

COUNTY OF MONTGOMERY; THE ATTORNEY GENERAL

OF THE STATE OF PENNSYLVANIA

On Appeal From the United States District Court

For the Eastern District of Pennsylvania

(D.C. Civil Action No. 97-cv-07498)

District Judge: Honorable John R. Padova

Argued December 10, 1998

Before: BECKER, Chief Judge, ST APLETON and WEIS,*

Circuit Judges

(Filed: May 31, 2001)

_________________________________________________________________

* Honorable Stanley S. Harris, United States District Judge for the

District of Columbia, who sat by designation on the original panel,

retired from the bench. The panel was reconstituted to substitute Hon.

Joseph F. Weis, Jr., in his stead.

Nancy Winkelman (Argued)

Gillian Thomas

Schnader, Harrison, Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

Attorneys for Appellant

Kiersten M. Murray (Argued)

John O.J. Shellenberger

Office of the Attorney General of

Pennsylvania

21 South 12th Street

Philadelphia, PA 19107

Attorney for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner Joseph Coady, a state prisoner incar cerated at

the State Correctional Institution at Grater ford,

Pennsylvania, appeals from the dismissal of his petition for

a writ of habeas corpus. Coady was convicted of rape and

indecent assault in the Montgomery County Court of

Common Pleas and sentenced to six to twelve years of

imprisonment, effective June 14, 1990. He became eligible

for parole on June 14, 1996, the date of expiration of his

minimum sentence. On August 19, 1996, the Pennsylvania

Board of Probation and Parole ("PBPP") reviewed his file and

denied his application for parole, specifying the following

grounds: substance abuse, habitual offender, assaultive

instant offense, very high assaultive behavior potential,

victim injury, petitioner's need for treatment, failure to

benefit from treatment program for sex offenders and

substance abuse, and an unfavorable recommendation

from the Department of Corrections. On September 16,

1997, the PBPP again reviewed Coady's file and denied his

application for many of the same reasons cited in their

1996 decision in addition to his need for continued

counseling and treatment and his multiple rape

convictions.

2

Shortly thereafter, Coady filed a petition for a writ of

habeas corpus challenging the PBPP's denial of his parole

as a violation of his rights under the United States

Constitution. He invoked the jurisdiction of the District

Court under 28 U.S.C. S 2254 and sought immediate

release from prison. A month later , Coady filed an amended

petition in which he predicated jurisdiction on 28 U.S.C.

S 2241(c)(3).

The Magistrate Judge to whom Coady's petition was

referred treated it as a Section 2241 petition and

recommended that it be dismissed for failur e to state a

claim. The District Court adopted the Magistrate Judge's

Report and Recommendation and dismissed the petition

without issuing a certificate of appealability. This timely

appeal followed. We appointed counsel to r epresent Coady,

who had previously been proceeding pr o se.

I.

Section 2253(c) of Title 28 provides in r elevant part:

(1) Unless a circuit justice or judge issues a certificate

of appealability, an appeal may not be taken to the

court of appeals from --

(A) the final order in a habeas corpus pr oceeding in

which the detention complained of arises out of pr ocess

issued by a State court, or

(B) the final order in a proceeding under section 2255.

Coady maintains that a certificate of appealability is not

a prerequisite to our entertaining his appeal. He advances

two alternative arguments in support of this proposition: (1)

that his petition, which challenges his denial of parole as

opposed to his conviction, is properly br ought under 28

U.S.C. S 2241, and Section 2253(c) does not r equire a

certificate in an appeal from the dismissal or denial of a

Section 2241 petition; and (2) that even if his petition is

properly brought under Section 2254, rather than Section

2241, Section 2253(c)(1) does not requir e a certificate

because "the detention complained of [in these

circumstances does not arise] out of pr ocess issued by a

state court." 28 U.S.C. S 2253(c)(1)(A). Additionally, Coady

3

insists that, even if a certificate were r equired, he is entitled

to have one issued because he has made "a substantial

showing of the denial of a constitutional right." 28 U.S.C.

S 2253(c)(2).

Respondent maintains that a certificate of appealability is

required, that there is no substantial showing of a

constitutional violation, and that Coady has, in any event,

failed to exhaust his state remedies.

II.

Section 2241 confers jurisdiction on district courts to

issue writs of habeas corpus in response to a petition from

a state or federal prisoner who "is in custody in violation of

the Constitution or laws or treaties of the United States."

28 U.S.C. SS 2241(a) and (c)(3).

Section 2254 confers jurisdiction on district courts to

issue "writs of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court . . . on

the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States." 28

U.S.C. S 2254(a).

It is a well-established canon of statutory construction

that when two statutes cover the same situation, the more

specific statute takes precedence over the more general one.

See Edmond v. United States, 520 U.S. 651, 657 (1997)

("Ordinarily, where a specific pr ovision conflicts with a

general one, the specific governs."); Preiser v. Rodriquez,

411 U.S. 475, 488-89 (1973) (holding that prisoner

challenging validity of his confinement on federal

constitutional grounds must rely on federal habeas corpus

statute, which Congress specifically designed for that

purpose, rather than broad language of Section 1983); West

v. Keve, 721 F.2d 91, 96 (3d Cir. 1983). The rationale for

this canon is that a general provision should not be applied

"when doing so would undermine limitations created by a

more specific provision." V arity v. Howe, 516 U.S. 489, 511

(1996). In the instant action, both Sections 2241 and 2254

authorize Coady's challenge to the legality of his continued

state custody. However, with respect to habeas petitions

filed by state prisoners pursuant to Section 2254, Congress

4

has restricted the availability of second and successive

petitions through Section 2244(b).1 Allowing Coady to file

_________________________________________________________________

1. Section 2244(b) provides:

(1) A claim presented in a second or successive habeas corpus

application under Section 2254 that was presented in a prior

application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus

application under Section 2254 that was not pr esented in a prior

application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of

constitutional law, made retroactive to cases on collateral review

by

the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been

discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light

of

the evidence as a whole, would be sufficient to establish by clear

and convincing evidence that, but for constitutional error, no

reasonable factfinder would have found the applicant guilty of the

underlying offense.

(3)(A) Before a second or successive application permitted by this

section is filed in the district court, the applicant shall move in

the

appropriate court of appeals for an order authorizing the district

court to consider the application.

(B) A motion in the court of appeals for an or der authorizing the

district court to consider a second or successive application shall

be

determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or

successive application only if it determines that the application

makes a prima facie showing that the application satisfies the

requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to

file

a second or successive application not later than 30 days after the

filing of the motion.

(E) The grant or denial of an authorization by a court of appeals

to

file a second or successive application shall not be appealable and

shall not be the subject of a petition for r ehearing or for a writ

of

certiorari.

(4) A district court shall dismiss any claim pr esented in a second

or

successive application that the court of appeals has authorized to

be

filed unless the applicant shows that the claim satisfies the

requirements of this section.

5

the instant petition in federal court pursuant to Section

2241 without reliance on Section 2254 would cir cumvent

this particular restriction in the event that Coady seeks to

repetition for habeas relief and would thereby thwart

Congressional intent. Thus, applying the "specific governs

the general" canon of statutory construction to this action,

we hold that Coady must rely on Section 2254 in

challenging the execution of his sentence.

Having so concluded, we find it unnecessary to address

the validity of the proposition that no certificate of

appealability is required in a proceeding initiated under

Section 2241. We note only that if Coady is correct in

arguing that a certificate is not required in such a

proceeding, this would provide an additional reason for

holding that Congress has attached restrictions to Section

2254 proceedings that should not be cir cumvented by

permitting a petitioner to go forward under the more

general authority conferred by Section 2241.

In reaching our conclusion that Section 2254 is the

controlling statute in the circumstances before us, we are

not unmindful of the cases which hold that federal

prisoners challenging some aspect of the execution of their

sentence, such as denial of parole, may pr oceed under

Section 2241. This difference arises fr om the fact that

Section 2255, which like Section 2241 confers habeas

corpus jurisdiction over petitions from federal prisoners, is

expressly limited to challenges to the validity of the

petitioner's sentence.2 Thus, Section 2241 is the only

statute that confers habeas jurisdiction to hear the petition

of a federal prisoner who is challenging not the validity but

the execution of his sentence. See U.S. v. Addonizio, 442

_________________________________________________________________

2.Section 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws

of

the United States, or that the court was without jurisdiction to

impose such sentence, or that the sentence was in excess of the

maximum authorized by law, or otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

6

U.S. 178, 185-88 (1979) (holding that Section 2255

authorizes challenges to the lawfulness of a federal

sentence, not to the lawfulness of the perfor mance of

judgment and sentence); Bennett v. Soto, 850 F.2d 161,

162-63 (3d Cir. 1988) (holding that Section 2255 does not

encompass the power to entertain federal prisoner's claim

of wrongful revocation of parole); U.S. v. Kennedy, 851 F.2d

689, 691 & n.4 (3d Cir. 1988) (challenge to parole

commission's execution of federal sentence pr operly

challenged under Section 2241); U.S. v. Jalili , 925 F.2d 889,

893 (6th Cir. 1991) (challenge to place of imprisonment, not

fact of federal conviction, properly br ought under Section

2241); U.S. v. Mares, 868 F.2d 151, 151 (5th Cir. 1989)

(claim for credit for time served prior to date of federal

sentence must proceed under Section 2241). As we have

pointed out, Section 2254, in contrast to Section 2255,

confers broad jurisdiction to hear the petition of any state

prisoner "in custody in violation of federal law." Thus it is

unnecessary to proceed under the more general Section

2241 in order to consider a state prisoner's challenge to the

execution of his sentence.

III.

Having concluded that Coady must rely on Section 2254,

we turn to Coady's argument that Section 2253(c)(1) does

not require a certificate of appealability in a Section 2254

proceeding that challenges the constitutionality of a denial

of parole. Noting that Section 2253(c)(1) r equires a

certificate in a habeas proceeding br ought by a state

prisoner only where "the detention complained of arises out

of process issued by a State court," Coady asserts that the

decision of the parole board he challenges is neither

"process" nor "issued by a State court." While this assertion

may in fact be true, Coady misunderstands the application

of Section 2253(c)(1)(A). Under Section 2253(c)(1)(A), only

the "detention complained of" must arise out of process

issued by the state court. The state action alleged in the

petition to deprive the petitioner of his federal rights need

not itself be process issued by a state court. Because Coady

challenges his continued detention, which resulted initially

from a state court judgment, we hold that a certificate of

appealability is required before we can accept jurisdiction.

7

Our holding is consistent with the decisions of other

Courts of Appeals that have required certificates of

appealability where the petitioner is in custody pursuant to

a state court judgment even though the decision under

attack is not that judgment but its execution. See

Wildermuth v. Furlong, 140 F.3d 856, 857 n.2 (10th Cir.

1998) (noting Court's ability to review District Court's

denial of habeas petition filed by state prisoner challenging

denial of parole since District Court issued necessary

certificate); Else v. Johnson, 104 F .3d 82, 82-83 (5th Cir.

1997) (holding that petitioner's challenge to par ole board's

consideration of dismissed criminal charges satisfied

requirements for issuing a certificate of appealability);

Hallmark v. Johnson, 118 F.3d 1073, 1076-77 (1st Cir.

1997) (requiring certificate in challenge to ex post facto

application of state directive eliminating discretion of official

to restore previously forfeited good time credits), cert.

denied 522 U.S. 1003 (1997).

IV.

Our conclusion that a certificate of appealability is

required for this appeal to go forwar d does not compel

dismissal. Because Coady filed a timely notice of appeal, we

construe this notice as a request for a certificate of

appealability pursuant to Section 2253(c)(1) and Fed. R.

App. Proc. 22(b).3 Se e Miller v. N.J. State Dept. of

_________________________________________________________________

3. When Coady filed his notice of appeal, Federal Rule of Appellate

Procedure 22(b) provided:

In a habeas corpus proceeding in which the detention complained of

arises out of process issued by a State court, an appeal by the

applicant for the writ may not proceed unless a district or a

circuit

judge issues a certificate of appealability pursuant to section

2253(c)

of title 28, United States Code. If an appeal is taken by the

applicant, the district judge who render ed the judgment shall

either

issue a certificate of appealability or state the reasons why such

a

certificate should not issue. The certificate or the statement

shall be

forwarded to the court of appeals with the notice of appeal and the

file of the proceedings in the district court. If the district

judge has

denied the certificate, the applicant for the writ may then request

issuance of the certificate by a circuit judge. If such a request

is

8

Corrections, 145 F.3d 616, 617 (3d Cir. 1998) (construing

timely appeal as request for certificate of appealability).

Before this Court may issue a certificate of appealability,

petitioner Coady must make "a substantial showing of the

denial of a constitutional right," see 28 U.S.C. S 2253(c)(2),

and any such certificate must "indicate which specific issue

or issues" satisfy this requirement. See 28 U.S.C.

S 2253(c)(3). Accordingly, we now tur n to Coady's claims

that the denials of his parole violated substantive due

process and the ex post facto clause.

A.

Citing Block v. Potter, 631 F.2d 233 (3d Cir. 1980), Coady

insists that the decisions of PBPP violated substantive due

process because they were arbitrary and capricious. It is

not altogether clear to us why Coady regar ds these

decisions as arbitrary and capricious. It is clear to us that

the allegations of his petition do not make the r equired

showing.

The petition first alleges that the PBPP used

constitutionally impermissible criteria. W e find all of the

considerations mentioned in the decisions of the Board to

be rationally related to the issues befor e it, however, and

none to be foreclosed by the Constitution.

The petition also alleges that the challenged decisions

resulted from the Board's "applying erroneous descriptions

of the conduct underlying the offense." App. at 56.

However, federal courts are not authorized by the due

process clause to second-guess parole boar ds and the

_________________________________________________________________

addressed to the court of appeals, it shall be deemed addressed to

the judges thereof and shall be consider ed by a circuit judge or

judges as the court deems appropriate. If no express request for a

certificate is filed, the notice of appeal shall be deemed to

constitute

a request addressed to the judges of the court of appeals. If an

appeal is taken by a State or its representative, a certificate of

appealability is not required.

Fed. R. App. P. 22(b) (1998) (amended Apr . 24, 1998, effective Dec. 1,

1998).

9

requirements of substantive due pr ocess are met if there is

some basis for the challenged decision. Here, the petition

affirmatively alleges that the Board r elied upon the

presentence report in evaluating the underlying offense.

App. at 58 (the Board "considers the underlying nature of

the offense based on the official version which the Court of

Common Pleas had already considered when imposing the

definite sentence.").

Finally, while the petition alleges that the Boar d

considered false information, it does not specify the basis

for this allegation, and it is apparent fr om the petition that

Coady simply has a different opinion with respect to the

factors cited by the Board and believes it gave inadequate

weight to information about his institutional experience

tending to support his opinion.

We decline to issue a certificate of appealability with

respect to Coady's substantive due process claims.

B.

Article I, S10, of the Constitution prohibits the States

from passing any "ex post facto law." This clause forbids

enactment of any law "which imposes a punishment for an

act which was not punishable at the time it was committed;

or imposes additional punishment to that then pr escribed."

Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting

Cummings v. Missouri, 4 Wall. 277, 325-26 (1867)). The

prohibition of ex post facto laws has two purposes: (1) it

prevents legislatures from inter fering with the executive

and judicial roles of prosecution and punishment; and (2)

it assures that legislative acts give fair war ning of what

actions will be punished and the degree to which they will

be punished. In accord with these purposes, two critical

elements must be present before a court may find that

criminal or penal law violates the ex post facto clause: (1)

the law must be retrospective, applying to events occurring

before its enactment; and (2) it must disadvantage the

offender affected by it. See id. at 29; U.S. ex rel. D'Agostino

v. Keohane, 877 F.2d 1167, 1173 (3d Cir . 1989).

Coady alleges that between the time he committed his

offense and the time he was considered for parole, the

10

criteria for granting and denying parole underwent a

fundamental change as the result of (a) an internal policy

decision to require the affirmative agreement of three

reviewers to grant parole to "violent offenders," (b) a new set

of parole guidelines promulgated in 1990, (c) an

amendment to Pennsylvania's Parole Act in 1996, and (d)

an agreement between Pennsylvania and the federal

government under the Federal Violent Of fender and Truth-

in-Sentencing Program. The new parole guidelines are said

to operate not as "mere guideposts" but rather as criteria

qualifying under our jurisprudence as "laws" for the

purposes of the ex post facto clause. See United States ex

rel. Forman v. McCall, 709 F .2d 852-53 (3d Cir. 1983).

Coady emphasizes that in 1991, eighty percent of state

prisoners were released at the completion of their minimum

sentence while by the first quarter of 1996, that number

had fallen to twenty-nine percent.

We conclude that Coady has made a substantial showing

of the denial of a constitutional right and will issue a

certificate of appealability with respect to his ex post facto

claims. The finding of a substantial showing of the denial of

a constitutional right is a prerequisite to our consideration

of the procedural issues in an appeal under Section 2254.

See Morris v. Horn, 187 F.3d 333, 341 n.4 (3d Cir. 1999);

cf. Nichols v. Bowersox, 172 F .3d 1068, 1070 n.2 (8th Cir.

1999) (en banc) (holding that a substantial showing of a

constitutional right is not required befor e a court may grant

a certificate and review a procedural issue).

We cannot reach the merits of this claim because we

conclude that Coady has failed to exhaust his state

remedies. Under Section 2254, a writ of habeas corpus may

not be granted unless the applicant has exhausted

remedies available in state court or "unless there is an

absence of available corrective state pr ocess or state

remedies are ineffective." Morris, 187 F.3d at 337; 28 U.S.C.

S 2254(b)(1).

While exhaustion is mandated by Section 2254, it"has

developed through decisional law in applying principles of

comity and federalism as to claims brought under 28

U.S.C. S 2241." See Schandelmeier v. Cunningham, 819

F.2d 52, 53 (3d Cir. 1986). Exhaustion is not a

11

jurisdictional requirement but rather addr esses federalism

and comity concerns by "affor d[ing] the state courts a

meaningful opportunity to consider allegations of legal error

without interference from the federal judiciary." Vasquez v.

Hillery, 474 U.S. 254, 257 (1986) (citing Rose v. Lundy, 455

U.S. 509, 515 (1982)). The habeas petitioner has the

burden of proving exhaustion of all available state

remedies. See Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.

1993).

Our initial review of Pennsylvania law left us uncertain

whether any state process was available to r emedy Coady's

alleged injury.4 In the inter ests of judicial comity and

efficiency, we certified to the Pennsylvania Supreme Court

(pursuant to Pennsylvania Supreme Court Or der No. 197,

Judicial Administration, Docket No. 1, dated October 18,

1998) the following two questions:

1. May a person who has been denied parole fr om a

Pennsylvania sentence obtain review from a Pennsylvania

state court of a claim that the denial of par ole violated the

ex post facto clause of the United States Constitution?

2. If so, may review be appropriately secured on direct

appeal, through a petition for a writ of mandamus, or in

some other manner?

The Pennsylvania Supreme Court granted our petition for

certification and issued an opinion addressing the two

certified issues. The Supreme Court ther e advised that

where

_________________________________________________________________

4. The Pennsylvania Supreme Court's opinion in Rogers v. Pennsylvania

Board of Probation and Parole , 724 A.2d 319 (1999), had appeared to

foreclose the availability of direct r eview of claims that parole board

decisions violated the ex post facto clause. Nevertheless, we saw a

tension between our reading of Rogers and two decisions of the

Pennsylvania Commonwealth Court, Stewart v. Pennsylvania Board of

Probation and Parole, 714 A.2d 502, 509 (Pa. Commw. Ct. 1998)

(deciding an ex post facto clause claim on the basis that parole policies

are not "laws"), and Myers v. Ridge , 712 A.2d 791 (Pa. Commw. Ct.

1998) (considering the merits of an ex post facto clause claim in a

manner suggesting that constitutional and statutory violations relating

to parole decisions are appealable).

12

discretionary actions and criteria are not being

contested but rather the actions of the boar d taken

pursuant to changed statutory requirements are being

challenged, an action for mandamus remains viable as

a means for examining whether statutory requir ements

have been altered in a manner that violates the ex post

facto clause. Such an action could be brought in the

original jurisdiction of the Commonwealth Court.

Absent a change in the statutes governing par ole,

however, denial of parole would generally constitute a

discretionary matter that is not subject to r eview.

Coady v. Vaughn, 2001 Pa. LEXIS 567, at *6-7.

Coady asserts that the PBPP's application of the 1996

amendment to Pennsylvania's Parole Act to his case

violated his rights under the ex post facto clause of the

United States Constitution. Thus, he has clearly raised a

challenge to "actions of the board taken pursuant to

changed statutory requirements" and he clearly has a state

court remedy with respect to that claim which he has not

exhausted. It necessarily follows that Coady's was at least

a "mixed petition" and that the District Court properly

dismissed that petition for failure to exhaust. Rose v.

Lundy, 455 U.S. at 510.

Moreover, we note that our case law for ecloses a District

Court from excusing exhaustion "unless state law clearly

forecloses state court review of claims which have not

previously been presented to a state court." Lines v. Larkin,

208 F.3d 153, 163 (3d Cir. 2000) (emphasis in original).

Thus, in cases where there is any doubt about the

availability of a state remedy, the claim must be dismissed.

Id. This is relevant here for two r easons.

First it is not clear to us that the Pennsylvania Supreme

Court utilized the term "statutes" as narrowly as Coady

suggests. The Court may well have employed the phrase

"statutes governing parole" as synonymous with "laws

governing parole," and it is conceivable to us that the

Commonwealth Court will find that it has jurisdiction to

entertain Coady's other ex post facto claims.5

_________________________________________________________________

5. To persuade us that his claims based on the parole board policy are

cognizable under the ex post facto clause, Coady cites to the recent

13

Second, Justice Castille, in a concurring opinion,

expressed his belief that "a constitutional claim arising in

connection with a prisoner's continued confinement may be

cognizable under Pennsylvania's habeas corpus statute."

Coady, 2001 Pa. LEXIS 567, at *7. The availability of

habeas relief in this situation had not been ar gued to the

Court, however, and Justice Castille declar ed that he would

"await an actual case or controversy, with adversarial

presentations, to definitively resolve the question." Id. at

*27. Apparently, for the same reason, the opinion of the

Court does not comment on the availability of such r elief.

As a result, we do not read the Court's opinion as ruling

out the possibility of such relief.

CONCLUSION

We will issue a certificate of appealability with respect to

Coady's ex post facto claims. We will affir m the order of the

District Court dismissing his complaint, however , because

he has failed to exhaust all state remedies.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

decision of the United States Supreme Court in Garner v. Jones, 529

U.S. 244 (2000). In Garner, the Supr eme Court found that courts must

consider the practical effect of parole board policies in the course of

determining whether a statute violates the"ex post facto law" clause of

the Constitution. To the extent that Gar ner is instructive here, we

observe that Coady's constitutional arguments based upon the

pronouncements of the United States Supr eme Court should be equally

persuasive in the courts of Pennsylvania.

14