Roman v. DiGuglielmo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 06-4644

_____________

MARTIN A. ROMAN,

Appellant

v.

DAVID DIGUGLIELMO, Superintendent;

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE; THE DISTRICT

ATTORNEY OF THE COUNTY

OF PHILADELPHIA; THE ATTORNEY GENERAL OF

THE STATE OF PENNSYLVANIA

_____________

On Appeal from the District Court

for the Eastern District of Pennsylvania

(No. 2:05-cv-05771)

District Judge: Honorable Anita B. Brody

___________

Argued on October 5, 2011

Before: McKEE, Chief Judge, FUENTES and GREENBERG,

Circuit Judges

(Opinion Filed: April 4, 2012)

Mary Gibbons, Esq. (ARGUED)

600 Mule Road, #16

Toms River, NJ 08757

Attorney for Appellant

William H. Ryan, Jr.

Claudia M. Tesoro (ARGUED)

Calvin R. Koons

John G. Knorr, III

Office of the Attorney General

21 South 12th Street, 3d Floor

Philadelphia, PA 19107

Attorneys for Appellees

OPINION OF THE COURT

2

Fuentes, Circuit Judge:

Martin Roman was convicted of indecent assault and

corruption of a minor, both crimes involving his daughter,

and is currently a prisoner of the Pennsylvania Department of

Corrections. As part of his sentence, the State of

Pennsylvania recommended that Roman participate in a sex

offender treatment program. In order to do so, he is required

to admit that he committed the sex crime for which he was

convicted. Roman has refused to participate in the program

because, he contends, any such admission would constitute

compelled self-incrimination in violation of the Fifth

Amendment and would have compromised his then-pending

appeal of his sex offense conviction. Based on his refusal to

participate, Roman repeatedly has been denied parole. The

primary issue before us is whether the State‟s decision to

deny Roman parole, unless he admits his guilt and

participates in the sex offender treatment program, violates

his Fifth Amendment right against self incrimination. We

hold that it does not.

I.

In 1977 a jury found Roman guilty of two counts of

third-degree murder. He received an aggregate sentence of

15-30 years. Roman was released on parole in 1992, shortly

after his minimum release date. Eight years later, while still

on parole for the homicide conviction, Roman was accused of

inappropriately touching his six-year-old daughter. He was

charged with endangering the welfare of a child, corruption of

a minor, unlawful restraint, simple assault, recklessly

endangering another person, false imprisonment, and indecent

assault.

3

Ultimately, Roman was convicted of indecent assault

and corruption of a minor in 2001, and was sentenced to serve

16-32 months in a state correctional facility, to be followed

by two years‟ probation. The sentencing report recommended

that he serve his sentence at a facility offering treatment for

“Sexual Offenders and Abusers.”

Following Roman‟s 2001 conviction, the Pennsylvania

Board of Probation and Parole (the “Board”) met and

determined that Roman‟s conduct violated the terms of his

parole from his homicide conviction. The Board ordered him

to serve backtime and the remainder of his sentence for

murder, pending parole, prior to beginning his sentence for

his 2001 conviction. The Board‟s decision stated that,

“[w]hile confined, [Roman] must comply with the

institution‟s prescriptive program requirements and have no

misconducts. [Roman] must participate in sex offender

treatment.” (App. 74.) Pennsylvania‟s sex offender treatment

program requires that an inmate admit guilt for the offending

conduct in order to participate. Roman says that he refused to

participate because admitting his guilt could have jeopardized

his then-pending appeal of his conviction for indecent assault

and corruption of minors.

The Board first denied Roman parole in August 2003,

following a hearing. In its decision, the Board considered

Roman‟s version of the nature and circumstances surrounding

his homicide offense,1 his prior history of parole failure, and

his unacceptable compliance with the sex offender treatment

1

It appears from the record that Roman continued to maintain

that the homicides for which he was convicted in 1977 were

acts of self-defense.

4

program prescribed to him in his sentencing. The Board

stated that in Roman‟s next review it would consider

“whether [Roman had] participated in/successfully completed

a treatment program for: sex offenders” and whether prison

officials still recommended him for parole. (App. 84.)

The Board denied Roman parole a second time in

August 2004, citing the same factors it relied on in its 2003

decision. It again listed Roman‟s failure to complete the

prison sex offenders program as one of the bases for its

decision, and again stated that it would consider whether he

had completed the program as part of its next review of his

eligibility for parole.

Roman sought review of these parole denials in the

Commonwealth Court of Pennsylvania, requesting a writ of

mandamus directing the Board to “correct [its] misapplication

of the law.” (App. 88.) The Court dismissed his petition,

finding that the Board had acted within the scope of its

discretion. Roman v. Pennsylvania Board of Probation and

Parole, No. 682 M.D. 2004 (Pa. Commw. Ct. Dec. 13, 2004).

The Pennsylvania Supreme Court affirmed that decision the

following year. Roman v. Pa. Bd. of Probation & Parole,

881 A.2d 1263 (Pa. 2005). Roman did not assert a Fifth

Amendment claim during either of those proceedings.

In November 2005, Roman filed a pro se petition for

habeas corpus in the Eastern District of Pennsylvania, arguing

that the Board “violate[d the] constitutional . . . protections of

the ex post facto clause when it ordered Mr. Roman to

participate in a sex offender program before considering his

parole application of the 1977 conviction in violation of the

Fifth and Fourteenth Amendments.” At the time he filed his

petition, Roman‟s appeal of his 2001 conviction for indecent

5

assault and corruption of minors was still pending in state

court.2

Roman‟s petition was assigned to a Magistrate Judge,

who issued a Report and Recommendation stating that

Roman had failed to exhaust his claims in state court, as

required under federal habeas law. In the alternative, he

found that Roman‟s petition failed on the merits. The

Magistrate Judge interpreted Roman‟s claim as an ex post

facto challenge and determined that, because Roman could

not demonstrate that a change in the law governing

Pennsylvania parole decisions had affected his sentence, his

claim failed.

2

Roman‟s appeal of his 2001 state court conviction for

indecent assault and corruption of a minor was denied in

February 2006, rendering his conviction final. No party has

suggested that this renders this case moot. Indeed, Roman

remains incarcerated and subject to the demands of the Board.

Assuming, arguendo, that Roman can show that the Board‟s

actions were unconstitutional and affected the length of time

he was required to remain incarcerated for his first sentence

for murder, our decision here would affect the length of time

remaining on that sentence and his release date. DeFoy v.

McCullough, 393 F.3d 439, 442 (3d Cir. 2005); cf. United

States v. Kissinger, 309 F.3d 179, 181 (2002) (stating that an

inmate who has been unconditionally released from prison

must demonstrate collateral consequences continuing from

the constitutional injury, lest her claim be rendered moot).

6

In response, Roman filed an objection to the

Magistrate Judge‟s Report and Recommendation, more fully

articulating that the conditions on his parole were problematic

because, in order “to participate in a sex offender program,

which requires admission of the crime as a stepping stone for

admission [into the program],” Roman would be “require[d] .

. . to waive his Fifth Amendment[] rights against self

incrimination.” (App. 13.) Roman objected that he could not

waive those rights because he had yet to exhaust his

challenges to his 2001 state court conviction.

Notwithstanding Roman‟s objections, the District Court

adopted the Magistrate Judge‟s Report and Recommendation

and denied Roman‟s habeas claim.

In May 2007, this Court issued a certificate of

appealability pursuant to 28 U.S.C. § 2253(c) on two issues:

(1) “whether [Roman] ha[d] exhausted his claim that the

denial of parole based on his failure to complete the sex

offender treatment program violates his Fifth Amendment

right against self-incrimination with respect to a conviction

that is not final; and (2) if so, whether the denial of parole

violated [Roman‟s] right against self incrimination with

respect to the conviction that was not final.”

II.

The District Court exercised jurisdiction over Roman‟s

claims under 28 U.S.C. § 2254. We have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

Where, as here, a district court dismisses a habeas

petition without first holding an evidentiary hearing, our

review is plenary. Palmer v. Hendricks, 592 F.3d 386, 392

(3d Cir. 2010). We review de novo all questions of law, and

7

consider all factual allegations in a light most favorable to the

petitioner to determine whether he has stated a cognizable

claim for habeas relief. Zettlemoyer v. Fulcomer, 923 F.2d

284, 291 (3d Cir. 1991). We then determine whether an

evidentiary hearing is necessary to develop the facts before

us. Id.

III.

A. Exhaustion Requirement

A federal court may not review a petition for writ of

habeas corpus “unless it appears that . . . the applicant has

exhausted the remedies available in the courts of the State, or

shows that doing so would be futile because state procedures

are unavailable or ineffective.” DeFoy v. McCullough, 393

F.3d 439, 442 (3d Cir. 2005) (quoting 28 U.S.C. § 2254(b)

(internal quotation marks omitted)). In order to satisfy the

futility exception to the exhaustion requirement, a petitioner

must show that the state remedy is so “clearly foreclosed” by

state law that we can “conclude with certainty” that state

courts afford no recourse for the claim. Lines v. Larkins, 208

F.3d 153, 165, 163 (3d Cir. 2000). Where, however, a

petitioner has failed to raise his claims in state court and we

find that some state process is available to address those

claims, notions of federalism and comity require that we

dismiss the habeas petition. DeFoy, 393 F.3d at 442.

Alternatively, we may bypass the exhaustion issue

altogether should we decide that the petitioner‟s habeas claim

fails on the merits. 28 U.S.C. § 2254(b)(2) (“An application

for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State.”); Taylor v.

Horn, 504 F.3d 416, 427 (3d Cir. 2007).

8

Roman now argues that the exhaustion requirement is

no bar to his claim because, as this Circuit recognized in

DeFoy, 393 F.3d 439, Pennsylvania law affords no remedy

for claims challenging the constitutionality of a denial of

parole. Thus, he argues, any attempt to raise his argument in

state court would have been futile. 3 In response, the State

argues that DeFoy no longer controls because Commonwealth

Courts since that decision have adjudicated mandamus

actions involving parole denials by the Board and have

considered constitutional claims other than ex post facto

claims.

Because we will deny Roman‟s claims on the merits,

we need not address the issue of exhaustion in this case.

However, we pause to note that, to the extent there has been

3

In DeFoy, faced with a habeas petition similar to Roman‟s,

a district court dismissed the petitioner‟s Fifth Amendment

claims against the parole board as unexhausted because

DeFoy could have first filed a petition for a writ of mandamus

in the Pennsylvania state courts. 393 F.3d at 441. We

reversed, reading Pennsylvania‟s case law up to that point to

permit prisoners challenging the denial of parole to seek writs

of mandamus, but only under the ex post facto clause, and not

on other constitutional grounds. See id. at 444 (quoting

Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (“Absent a

change in the statutes governing parole, . . . denial of parole

would generally constitute a discretionary matter that is not

subject to review.”)). Therefore, we held that “a

Pennsylvania state prisoner challenging the denial of parole

need not file a petition for a writ of mandamus in order to

satisfy the dictates of exhaustion.” Id. at 444.

9

any shift in Pennsylvania law, we cannot comfortably say that

it is clear enough to alter our decision in DeFoy.4

B. Fifth Amendment Claim

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

4

The availability of Pennsylvania mandamus review for

inmates challenging the denial of their parole on non-ex post

facto grounds remains unsettled. Though certain courts since

DeFoy have demonstrated some willingness to consider

constitutional claims outside the ex post facto context, none

have addressed or acknowledged the language that drove our

reading of Coady. See Nieves v. Pa. Bd. of Prob. & Parole,

995 A.2d 412, 418 (Pa. Commw. Ct. 2010) (substantive due

process and ex post facto); Wilson v. Pa. Bd. of Prob. &

Parole, 942 A.2d 270 (Pa. Cmwlth. Ct. 2008) (Fifth

Amendment in context of sexual offender rehabilitation

program); Dodgson v. Pa. Bd. of Prob. & Parole, 922 A.2d

1023, 1026 (Pa. Commw. Ct. 2007) (due process, equal

protection, Fifth Amendment, court access and ex post facto);

Nickson v. Pa. Bd. of Prob. & Parole, 880 A.2d 21, 13 (Pa.

Commw. Ct. 2005) (Eighth Amendment). But see Nieves,

995 A.2d at 421-22 (Leavitt, J., concurring) (citing Coady for

the proposition that “mandamus will not lie” in challenges to

the denial of parole and arguing that the court need not have

considered the claims before it at all).

10

incriminate him in future criminal proceedings. 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.

Roman argues that the Board‟s decisions requiring that

he participate in the sex offender rehabilitation program

violated his right against self-incrimination under the Fifth

Amendment, since the Board effectively compelled him to

choose between admitting his guilt for a sexual offense—a

requirement for admission to the program—and relinquishing

his opportunity for parole. Roman further argues that, at the

time he filed this petition, his conviction for the sex offense

was not yet final and thus any admission he made could be

used against him in that appeal or in any future proceedings.

The State responds that Roman has not demonstrated a Fifth

Amendment violation because the consequences of his refusal

to participate in the program are not severe enough to

constitute compulsion under the Fifth Amendment. Further,

it argues that Roman is unable to show that his statements

were or would have been used against him in a criminal

proceeding, had he decided to participate in the program.

The record before us is not clear as to the extent to

which Roman‟s refusal to participate in the program was the

sole or primary cause of the Board‟s repeated refusal to grant

him parole. In each Board letter, it is listed as one among

several reasons for denying him parole, including his history

of previous failures under supervised release. However, even

assuming arguendo that the Board‟s refusal was the sole

driver of its decisions to refuse Roman parole, we hold that

the actions of the Board do not amount to “compulsion”

within the meaning of the Fifth Amendment.

11

Though the privilege against self-incrimination “does

not terminate at the jailhouse door,” it is well established that

a “broad range of choices that might infringe constitutional

rights in a free society fall within the expected conditions of

confinement of those who have suffered a lawful conviction.”

McKune v. Lile, 536 U.S. 24, 36 (2002) (plurality opinion)

(Kennedy, J.). Thus, in circumstances such as these, where a

prisoner‟s liberties are already curtailed as a necessary and

essential element of his incarceration, that prisoner faces

unique challenges in demonstrating that a particular penalty

or punishment inflicts a constitutional injury upon him. In the

context of the Fifth Amendment, specifically, compulsion is

the linchpin of any such claim.

Where, as here, a prisoner argues that the

consequences of his refusal to participate in a prison program

that requires him to admit guilt violate the Fifth Amendment,

we must ask “whether the State‟s program, and the

consequences for non-participation in it, combine to create a

compulsion that encumbers” that prisoner‟s right against self-

incrimination. Id. at 35. Though drawing the distinction

between a lawful condition of confinement and a condition

that impermissibly encumbers a prisoner‟s rights can be

challenging, it is a distinction that rests on the difference

between merely pressuring or encouraging an inmate to

incriminate himself, and compelling him to do so through the

threat of consequences so “grave” as to leave him no choice

at all. See id. at 50 (O‟Connor, J., concurring).

The Supreme Court outlined the contours of this

analysis in McKune v. Lile, 536 U.S. 24 (2002). In that case

Lile, a convicted sex offender, brought a Fifth Amendment

challenge to Kansas‟ compulsory sex offender program,

which required him to admit guilt for his crime of

12

incarceration as well as any previous sex crimes. Id. at 29.

Under the Kansas program, any such admissions were not

privileged and could be used in future criminal proceedings.

Id. at 30. Lile, who was convicted of rape but had maintained

all along that the encounter was consensual, refused to admit

guilt and faced losing substantial prison privileges as a result.

In particular, prison officials threatened to restrict his

visitation rights, earnings, prison job opportunities, and

ability to send money to his family. Lile was also told he

would be moved to a maximum-security prison, which

necessarily entailed less comfortable living conditions and

housed more dangerous inmates, in order to make room for

prisoners who were willing to participate in the program. Id.

at 30-31.

In a fractured opinion, a plurality of the Court agreed

that Lile—though faced with a difficult choice between

asserting his right to remain silent and receiving the benefits

and comforts of the prison conditions then afforded to him—

had failed to demonstrate that the reduction in his prison

privileges rose to the level of compulsion proscribed under

the Fifth Amendment. Id. at 46-48. The plurality opinion,

authored by Justice Kennedy, distinguished the punishment

meted against Lile from the “so-called penalty cases” in

which the Court had previously held that consequences

involving the loss of employment or professional reputation

were sufficient to constitute compulsion under the Fifth

Amendment. Those cases, the plurality wrote, involved free

citizens, not already subject to the limitations of prison life,

and were thus “not easily extended to the prison context.” Id.

at 40 (citing Garity v. New Jersey, 385 U.S. 493 (1967);

Spevak v. Klein, 385 U.S. 511, 516 (1967)). Instead, the

plurality applied a very stringent test that required that the

13

inmate demonstrate the imposition of “atypical and

significant hardships on [inmates] in relation to the ordinary

incidents of prison life.” Id. at 37 (adopting the test for due

process claims established in Sandin v. Conner, 515 U.S. 472

(1995)). In effect, the plurality‟s test limited compulsion to

instances not served by a legitimate penal interest, where the

punishment actually lengthened a prisoner‟s sentence or

altogether denied him eligibility for good-time credits or

parole. Id. Justice Stevens, joined by Justices Souter,

Ginsburg and Breyer, dissented, urging that the Court adopt a

much broader test which recognized that the threat of

revoking privileges was sufficient to trigger the Fifth

Amendment, absent some grant of immunity assuring that the

statements could not be used against the prisoner. McKune,

536 U.S. at 59, 69-70 (Stevens, J., dissenting).

Justice O‟Connor, whose opinion controls,5 concurred

on narrow grounds, agreeing with the plurality‟s judgment

that Lile‟s Fifth Amendment claim failed but agreeing with

the dissent that “the Fifth Amendment compulsion standard is

broader than the „atypical and significant hardship‟ standard

[the Court had] adopted for evaluating due process claims in

prisons.” Id. at 48 (O‟Connor, J., concurring).

5

Marks v. United States, 430 U.S. 188 (1977); see also

United States v. Naranjo, 426 F.3d 221, 231 (3d Cir. 2005)

(When “no one view garners a majority of the Justices . . . the

holding of the Court may be viewed as that position taken by

those Members who concurred in the judgments on the

narrowest grounds.” (internal quotation marks and citations

omitted)).

14

Justice O‟Connor did not, herself, state a particular test

for determining what degree of penalty amounts to

compulsion in the prison context. She noted, however, that a

proper inquiry should “recognize that it is generally

acceptable to impose the risk of punishment, however great,

so long as the actual imposition of such punishment is

accomplished through a fair criminal process” and so long as

it stops short of punishments such as “longer incarceration or

execution”—penalties that “would surely implicate a „liberty

interest.‟” Id. at 53, 52 (citing McGautha v. California, 482

U.S. 183, 213 (1971)). Importantly, under Justice

O‟Connor‟s analysis, the “Fifth Amendment does not prohibit

all penalties levied in response to a person‟s refusal to

incriminate himself or herself . . . . Not all pressure

necessarily „compels‟ incriminating statements.” Id. at 49;

see also Ohio v. Woodward, 523 U.S. 272, 286 (1998) (noting

in the context of voluntary clemency hearings that “it has

never been suggested that such pressures constitute

„compulsion‟ for Fifth Amendment purposes”); McGautha,

402 U.S. at 213 (noting that a criminal defendant is often

faced with “the making of difficult judgments as to which

course to follow” but that “the Constitution does not . . .

always forbid requiring him to choose”).

Though the prison in McKune threatened to restrict

Lile‟s privileges and transfer him to less comfortable

accommodations, Justice O‟Connor found it instructive that

he would still be provided with basic necessities—food and

shelter, and would still “retain[] the ability to see his attorney,

his family, and members of the clergy.” McKune, 536 U.S. at

51. Nor had Lile shown that the consequences of his refusal

to incriminate himself were more restrictive than the same

sanctions applied to discipline any inmates who refused to

15

comply with any number of prison requirements, or that that

the transfer to another prison would result in bodily harm. Id.

Instead, because Lile‟s confinement already, by definition,

subjected him to such conditions, the consequences of his

refusal to speak were punishments within the scope of his

conviction, rather than “stark[] . . . government attempts to

compel testimony.” Id. at 53; see also id. at 50

(distinguishing penalties imposed upon Lile from the more

severe penalties inflicted on individuals outside the context of

the prison environment).

There is no precedent in our Circuit that interprets or

applies McKune, or that governs the case before us. Since

McKune, several of our sister circuits have confronted cases

similar to the one at hand, and have faced the challenge of

interpreting and applying that decision to the facts before

them. However, to the extent these circuits have attempted to

articulate a standard that governs these cases, the results have

been varied.6 In Ainsworth v. Stanley, the First Circuit,

noting that McKune provided “no clear guideposts,”

“resort[ed] to [its] own sound judgment” in denying the Fifth

Amendment claim before it. 317 F.3d 1, 4 (1st Cir. 2002).

The court adopted its own pre-McKune test, which it found

consistent with that decision, and evaluated whether the

burden imposed by the sex offender treatment program was

6

Notably, some have taken McKune at face value, relying on

factual comparisons alone in reaching a conclusion. See, e.g.,

Reed v. McKune, 298 F.3d 946 (10th Cir. 2002) (relying

solely on comparison with facts in McKune in dismissing a

similar case levied against the same rehabilitation program

evaluated in McKune); Searcy v. Simmons, 299 F.3d 1220

(10th Cir. 2002) (same).

16

“unreasonable” in light of the state‟s interest and the

availability of other, less burdensome means of achieving that

interest. Id. at 5 (dismissing Fifth Amendment claim

involving New Hampshire‟s sex offender treatment program).

In contrast, in United States v. Antelope, the Ninth Circuit

stated that “the status of the person claiming the Fifth

Amendment privilege” or the “severity of the penalty

imposed” are not, alone, determinative. 395 F.3d 1128, 1137

(9th Cir. 2005). Instead, it placed a premium on the state‟s

purpose in imposing the penalty and on the extent to which

the penalty went beyond that already imposed by fair criminal

process. Id. at 1137 (finding Fifth Amendment violation

where District Court actually lengthened term of

probationer‟s supervised release based on his refusal to

submit to repeat polygraph tests asking whether he had

engaged in prohibited sexual conduct).

Thus, in light of the lack of clear consensus from other

circuits and because Justice O‟Connor‟s controlling opinion

in McKune stops short of articulating its own test, we are

tasked with the responsibility of distilling the core principles

of that decision. To that end, we note that three things are

abundantly clear:

First, a state program that requires an inmate to

incriminate himself solely for the purposes of gathering

incriminating statements against him will not pass

constitutional muster. While the conditions inherent to

imprisonment may alter our definition and application of

“compulsion” under the Fifth Amendment, a state wielding its

control over an inmate solely as “mere subterfuge for the

conduct of a criminal investigation,” is the very sort of

conduct that the Fifth Amendment is intended to prohibit.

McKune, 536 U.S. at 34; id. at 41 (discussing “elaborate

17

attempt” to avoid Fifth Amendment protections); id. at 53

(O‟Connor, J., concurring) (distinguishing Kansas‟ program

from “stark[] . . . government attempts to compel testimony”);

id. at 68 (Stevens, J., dissenting) (conceding that the state‟s

interest in rehabilitation is persuasive, but arguing that the

state‟s need does not justify overriding Fifth Amendment

protections). Thus, the statement sought—whether the inmate

decides to speak or to remain silent—must be tethered to

some independent, legitimate state purpose, such as

rehabilitating inmates convicted of certain crimes. The more

attenuated the relationship between the two, the greater our

concern that the penalty is indicative of a state attempt to

wield its power in an impermissible manner.

Second, it is undisputed by the plurality, the

concurrence and the dissent that, in the event the penalty

imposed does amount to an atypical and significant hardship

on the petitioner‟s prison conditions, that penalty is

sufficiently compelling to constitute a Fifth Amendment

violation. While the plurality opinion treats this standard as

the minimum showing necessary under the Fifth Amendment,

id. at 37, both Justice O‟Connor and the dissent advocate for a

more flexible, permissive standard, albeit to varying degrees.

Id. at 48-49 (O‟Connor, J., concurring); id. at 59, 69-70

(Stevens, J., dissenting). It thus stands to reason that a

prisoner who demonstrates that the consequences of his

refusal to incriminate himself inflict an atypical and

significant hardship on the conditions of his incarceration has

made a sufficient, though not a necessary, showing under the

Fifth Amendment.

Third, and relatedly, in light of Justice O‟Connor‟s

opinion, it is clear that there exists some realm of penalties

just short of those that amount to atypical and significant

18

hardships, which, given the context, are sufficient to

constitute compulsion. The distinction between an

impermissible penalty and a mere consequence requires that

we examine the penalty assessed in light of the conditions and

restrictions already incumbent on the confinement itself. Id.

at 51 (O‟Connor, J., concurring).

Thus, under McKune, those penalties that merely alter

the degree of comfort or freedom that an inmate is afforded,

within the context of his confinement, but that otherwise

remain within the permissible bounds of the inmate‟s

prescribed sentence, are differences in measure alone and thus

do not amount to compulsion under the Fifth Amendment.

See id. at 51-54. In contrast, penalties that go beyond the

mere “unpleasant” and are different in kind than those

conditions of confinement imposed on all prisoners—that

strike at the core of an inmate‟s recognized entitlements, that

threaten his bodily safety, or that impose additional

punishment beyond that already imposed by fair judicial

process—constitute impermissible compulsion under the Fifth

Amendment. Id. at 51.

In light of this analysis, Roman‟s Fifth Amendment

claim fails because the consequence he faces—the repeat

denial of parole for refusing to participate in the sex offender

rehabilitation program—does not rise to the level of

compulsion necessary to violate the Fifth Amendment.

Roman has no right or entitlement to parole under

Pennsylvania law. Commonwealth v. Brittingham, 275 A.2d

83, 85 (Pa. 1971). His sentence has not been lengthened, nor

have the actual conditions of his imprisonment been altered.

Cf. Antelope, 395 F.3d at 1138 (finding it determinative that

defendant was “sentenced to a longer prison term for refusing

19

to comply with [the rehabilitation program‟s] disclosure

requirements”). At most and reading the facts he has plead in

his favor, Roman—in deciding to assert his right to remain

silent and thereby refusing to participate in the sex offender

rehabilitation program—has forfeited his opportunity for

early release on his 1971 murder sentence, the terms of which

were imposed following full and fair criminal proceedings.

See McKune, 536 U.S. at 53 (O‟Connor, J., concurring);

Searcy, 299 F.3d at 1226 (describing loss of good-time

credits, which are permissive but not guaranteed, as a loss of

an “opportunity” for early release); see also Ohio v.

Woodward, 523 U.S. at 286-88 (“It is difficult to see how a

voluntary interview could „compel‟ respondent to speak . . . .

[The] pressure to speak in the hope of improving his chance

of being granted clemency does not make the interview

compelled.”). Nor is the penalty itself unique in its nature or

severity: An inmate in Pennsylvania may be denied parole

for many forms of misbehavior or violation of prison policies,

all of which are designed to ensure order in the prison or to

further the state‟s legitimate interest in rehabilitation. See

McKune, 536 U.S. at 52 (O‟Connor, J., concurring) (drawing

a distinction between typical sanctions and those sanctions so

unique as to arise to a higher level of coercion).

Moreover, the nature of the penalty in this case is in no

way suggestive of the “stark[] . . . government attempts to

compel testimony” relied on by previous cases in fleshing out

the scope of the Fifth Amendment. Id. at 53. Though the

Board refused Roman parole, that consequence flowed

naturally from his decision not to participate in an established

prison program designed to further Pennsylvania‟s legitimate

interest in rehabilitating inmates, such as Roman, who have

been convicted of sexual offenses. Id.; see also id. at 37-38

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(Kennedy, J.) (discussing state‟s legitimate interest in

compelling inmate participation in rehabilitative programs);

Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir. 2002) (same).

Whether we view the Board‟s focus on Roman‟s participation

in the program as a measure of his fitness for parole, or as a

condition of parole, it stands to reason that a state may offer

an incentive for participation in such rehabilitative

programs—here, the opportunity for early release—without

obligating itself to reward an inmate who chooses not to

participate because he considers that reward outweighed by

the cost. Cf. Allison v. Snyder, 332 F.3d 1076, 1080 (7th Cir.

2003) (noting, in context of similar § 1983 claim that

prisoners can refuse to participate in the treatment program,

and that “[t]his may make it harder to show that their

problems are behind them, that release is in order, and that the

criminal charges should be dismissed, but this does not make

the choice any less willing or intelligent” (citing United States

v. Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991))).

While we do not dispute that Roman was, in this case,

presented with an exceedingly difficult choice, the law is

clear that it is a choice he may be forced to make. We

therefore hold that Roman‟s Fifth Amendment claim fails on

the merits.

IV.

For the reasons stated above, we will affirm the

District Court‟s order dismissing Roman‟s habeas petition.

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