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Wayne Paul Burkett v. William Love, Superintendent, Answering Blair County District Attorney, 89 F.3d 135, 3rd Cir. (1996)
Wayne Paul Burkett v. William Love, Superintendent, Answering Blair County District Attorney, 89 F.3d 135, 3rd Cir. (1996)
3d 135
In this case, a state prisoner alleges that he was denied parole in retaliation for
the successful pursuit of relief in various federal habeas corpus proceedings.
The district court denied the petition on the merits and also found a failure to
exhaust "administrative" remedies.1 Because we conclude that petitioner has
failed to exhaust state remedies, and in addition, that some uncertainty exists as
to the proper state procedure to address the issue that the prisoner raises, we
remand with directions to dismiss.
Between February 1981 and April 1982, the district attorney of Blair County,
Pennsylvania, filed three sets of charges against petitioner Wayne Burkett. In
November 1981, he was convicted of burglary, theft, receiving stolen property,
and corruption of minors, docketed in 1981 at Nos. 140/141. On January 20,
After another round of orders from the district court and this Court, the state
judge denied Burkett's motion for recusal and reduced the sentence in
accordance with our earlier order. Petitioner is presently serving a term of 12
3/4 to 28 3/4 years. In February 1993, Burkett filed a Post Conviction Relief
Act petition in Blair County challenging the sentence as excessive.
On September 28, 1994, Burkett filed a pro se habeas corpus petition in the
Pennsylvania courts raising, among other claims, retaliatory denial of parole.
The state court dismissed the petition without prejudice and appointed new
counsel with instructions to file an amended petition.
In June 1995, Burkett initiated the present matter by filing a document in the
district court entitled "Motion to Enforce Order of the District Court Dated
December 4, 1992 and to Permit Discovery in Support of Burkett's Motion."
(The December 4, 1992 order had directed the imposition of a reduced
sentence, as discussed in our opinion at 951 F.2d at 1433.) In this "motion,"
Burkett alleged that the Commonwealth of Pennsylvania had denied him parole
in vindictive retaliation for his success in the earlier federal habeas corpus
actions he had pressed in the district court and our Court.
The district court denied the motion, finding inter alia that the decision to grant
parole was committed to the sound discretion of the Parole Board and that the
agency had cited at least five legitimate and non-discriminatory reasons for its
action. Further, the court stated that the responses of the district attorney and
the sentencing judge were proper and non-vindictive. In addition, the court
concluded that Burkett had failed to exhaust his administrative remedies.
Burkett has appealed, contending that no corrective state process exists and
therefore the district court should have conducted an evidentiary hearing and
allowed discovery.
I.
Appellate Jurisdiction
10
Burkett's motion in the district court was filed under the docket number of an
earlier case. It should have been filed under a separate docket number rather
than as a continuation of the previous action. However, because the district
court and the parties have treated this case as a new petition for a writ of habeas
corpus, we will do likewise. The district court's order disposing of the matter is
final as a practical matter and we have jurisdiction to consider this appeal.
II.
Exhaustion of State Remedies
11
12
To satisfy the exhaustion requirement, the claim must be presented to the state's
highest court. Rose v. Lundy, 455 U.S. 509, 515, 102 S.Ct. 1198, 1201-02, 71
L.Ed.2d 379 (1982). "The exhaustion requirement does not foreclose, but only
postpones, federal relief." Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.1993).
Pursuing state remedies is not a mere formality, but serves the interests of
comity between the state and federal courts. Gibson v. Scheidemantel, 805 F.2d
135, 138 (3d Cir.1986).
13
14
After this appeal was taken, Congress enacted the Antiterrorism and Effective
Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (April 24,
1996), which revises the procedures for habeas corpus proceedings. Section
104(1) of the Act states that applications by persons in state custody "shall not
be granted unless it appears that ... the applicant has exhausted the remedies
available in the court of the State" or there is no available state remedy or that
process would be ineffective. However, a federal court may deny an application
on the merits notwithstanding an applicant's failure to exhaust state remedies.
Id.
The 1996 statute also provides that if a state court has addressed the merits of a
petitioner's claim, the federal court shall not grant a writ of habeas corpus
unless the state decision was contrary to, or an unreasonable application of,
federal law, or was based on an unreasonable determination of the facts in light
of the evidence presented in the state proceeding. Section 104(3). Applicants
have the burden to rebut a state's factual determinations by clear and convincing
evidence. Section 104(4). Section 104(4) also specifies the limited
circumstances in which a federal court can hold an evidentiary hearing if the
applicant has failed to develop the factual basis for a claim in the state
proceeding.2 In the somewhat unusual circumstances here, we need not digress
to determine the effect of these provisions on this pending action, filed, as it
was, before the amendments were enacted.
III.
Does the State Lack Corrective Measures?
15
16
Burkett contends that retaliation for his exercise of access to the federal courts
violates his rights under the United States Constitution, but that the state courts
will not entertain his claim. He points to the Pennsylvania Commonwealth
Court's in banc decision in Reider v. Pennsylvania Bd. of Probation and Parole,
100 Pa.Cmwlth. 333, 514 A.2d 967 (1986).
17
In that case, a state prisoner appealed to the Commonwealth Court alleging that
the Parole Board's decision to deny him parole was a denial of his constitutional
rights to equal protection as well as due process, and in addition constituted
cruel and unusual punishment. In an opinion dismissing the appeal, the Court
reviewed a number of its earlier rulings that had reached differing results on its
power to review Parole Board decisions asserted to have been in violation of
the Constitution.3
18
18
19
20
Following that reasoning, Reider held that under Pennsylvania law, a prisoner
had "no constitutionally protected liberty interest in the expectation of being
[paroled]." 514 A.2d at 971. "The mere possibility of parole affords no
constitutional rights to prisoners." Id. (emphasis in original). The Court,
therefore, held that a denial of parole may not be judicially reviewed in
Pennsylvania. A dissenting Commonwealth Court judge pointed out that
carrying his Court's holding to its logical extreme would allow the Board to
refuse parole solely on the basis of a prisoner's race, religion, gender, or ethnic
background without any relief from the judiciary. Id. at 972.
21
22
Other cases, however, are consistent with Reider. See Shaw v. Pennsylvania
Bd. of Probation and Parole, 671 A.2d 290, 292 (1996) (allegations of due
process and equal protection violations do not establish "liberty interest" and
claims unreviewable); King v. Pennsylvania Bd. of Probation and Parole, 111
Pa.Cmwlth. 392, 534 A.2d 150, 151 (1987) (retaliatory denial not reviewable);
Johnson v. Pennsylvania Bd. of Probation and Parole, 110 Pa.Cmwlth. 142, 532
A.2d 50, 52 (1987) (due process contention not reviewable).
23
Reider was correct in its conclusion that no liberty interest is created by the
expectation of parole. See Greenholtz, 442 U.S. at 11, 99 S.Ct. at 2105-06. But
Reider is seriously flawed because it fails to recognize that the curtailment of a
liberty interest is not the only way that the Constitution may be violated.
24
The Supreme Court held in Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct.
2694, 2697, 33 L.Ed.2d 570 (1972), 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." We
applied that principle in Block v. Potter, 631 F.2d 233, 236 (3d Cir.1980),
where we explained "[a]lthough Greenholtz indicates that a state may ... deny it
completely, a state statute may not sanction totally arbitrary parole decisions
founded on impermissible criteria." Moreover, "[a] legislative grant of
discretion does not amount to a license for arbitrary behavior." Id.
25
In Block, the Parole Board used race as one of the bases for denying parole.
The panel majority concluded that in so doing, the agency violated substantive
due process in grounding its action on "constitutionally impermissible reasons."
Id. at 236. The panel also concluded that the denial of parole violated the
prisoner's right to equal protection. "The equal protection clause forbids
government bodies from making decisions on the basis of race, even if other
factors were also considered." Id. at 241.
26
The dissenting judge in Block disagreed with the majority's finding of a liberty
interest and declined to read Greenholtz as applicable to both substantive as
well as procedural due process. However, the dissent concurred with the
majority's position on equal protection and said that a discretionary parole
system "does not give the state the unfettered right to deny parole on arbitrary
and impermissible grounds." Id. at 244.
27
Cases in other Courts of Appeals have been in agreement with Block 's premise.
See Candelaria v. Griffin, 641 F.2d 868, 870 (10th Cir.1981) (denial of parole
because prisoner was Hispanic states claim for violation of equal protection);
Osborne v. Folmar, 735 F.2d 1316, 1317 (11th Cir.1984) (prisoner may
Case law has also established that a state may not bar parole in retaliation for a
prisoner's exercise of his constitutional rights. See Shabazz v. Askins, 980 F.2d
1333 (10th Cir.1992) (retaliation for a prisoner's religious discrimination suits
against prison officials); Clark v. Georgia Pardons and Paroles Board, 915 F.2d
636, 639 (11th Cir.1990) (retaliation for filing suit against prison officials for
wrongful death of prisoner's brother). See also Cain v. Lane, 857 F.2d 1139,
1145 (7th Cir.1988) (retaliation for exercise of First Amendment rights).
29
30
31
Similarly, Burkett's claim that he was denied release on parole based on the
exercise of his right of access to the courts alleges an impermissible and
unconstitutional reason for the Board's action. That claim is not based on the
abrogation of a liberty interest, and consequently, is not within the ambit of the
reasoning underlying the decision in Reider. It is at least arguable, therefore,
that Burkett's claim is not controlled by Reider. However, the application of
that case to other instances of constitutional violations shows that the
Commonwealth Court has given the holding a broad sweep.
32
34
35
We also consider whether Burkett may be able to proceed in the state courts
under the Post Conviction Relief Act or by requesting a writ of habeas corpus.
In 1988, Pennsylvania enacted the Post Conviction Relief Act. It provides "the
sole means of obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose ... including habeas corpus and
coram nobis." 42 Pa. Cons.Stat. Ann. 9542.
36
In Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (1991), the
Superior Court held that the language of the Post Conviction Relief Act
precluded resort to the writ of coram nobis. No appellate court in Pennsylvania,
to our knowledge, has considered the question of whether the Act has totally
replaced the writ of habeas corpus. We note, however, that the Pennsylvania
Constitution art. I, 14 provides that the writ of habeas corpus may not be
suspended unless rebellion or public safety may require it.
37
The Post Conviction Relief Act, moreover, is limited to persons who assert they
were convicted of crimes they did not commit and persons who are serving
illegal sentences. 42 Pa.Cons.Stat.Ann. 9542. Petitioner here does not fall into
either of those categories. Instead, he alleges that he is unjustly incarcerated
because of an unconstitutional denial of parole. He does not deny commission
of the crime, nor in this petition does he contend that the sentence is illegal.
38
The Pennsylvania Supreme Court has not yet addressed the effect of the Act on
habeas corpus, and so we are required to predict what its ruling would be.
Because of the state constitutional provisions prohibiting impairment of the
right to a writ of habeas corpus, we would expect that in the event that the
Commonwealth Court cannot adjudicate this matter, the state's highest court
would permit a habeas corpus action in the circumstances present here.
Alternatively, we predict that the state's highest court would conclude that the
petition here is outside the scope of the Post Conviction Relief Act.
39
40
Those two cases were decided before the Post Conviction Relief Act was
enacted, but we believe the reasoning in those opinions is sound and applicable
to the current statute. It follows that claims of unconstitutional violations not
seeking to set aside a sentence or a conviction are outside the Post Conviction
Relief Act.
41
We read Isabell, 467 A.2d at 1291, as permitting a petition for habeas corpus
relief in the circumstances here because Burkett is not making a direct or
collateral attack on his conviction or sentence. We recognize that in 1944, the
Supreme Court of Pennsylvania held that a parole denial could not be
challenged by using a petition for habeas corpus to allege that the Board had
been neither fair nor impartial. See Commonwealth ex rel. Biglow v. Ashe, 348
Pa. 409, 35 A.2d 340 (1944). There was no charge of unconstitutional action in
that case and we need not resolve the conflict (if any) between it and Isabell.
Fundamentally, it is the role of the Pennsylvania courts to clarify the law of that
state. It is enough for our purposes to note that, should the Commonwealth
Court not have jurisdiction, either by appeal or mandamus, relief by habeas
corpus has not been foreclosed by holdings of the state Supreme Court.
42
It appears to us, therefore, that Burkett has available three potential ways of
attacking the denial of parole in Pennsylvania courts--appeal, mandamus, or
habeas corpus. The somewhat unsettled state law in this area is a factor to
consider in deciding whether we should proceed to the merits, rather than
requiring Burkett to exhaust state remedies. Obviously, a ruling by the state
Supreme Court or Commonwealth Court discussing the scope of the Reider
opinion and the proper channels for bringing such claims would be helpful in
this frequently litigated area of state law.
43
44
We emphasize that our holding does not express any view as to the validity of
Burkett's claim. We merely recognize that an allegation that parole was denied
in retaliation for the successful exercise of the right of access to the courts
states a cognizable claim for relief.
45
Pennsylvania law provides that the Parole Board "shall, in all cases, consider"
recommendations from district attorneys and sentencing judges, 61
Pa.Cons.Stat.Ann. 331.19, while retaining "exclusive power to parole." 61
Pa.Cons.Stat.Ann. 331.17. The mere fact that recommendations were
submitted to the Board is not enough, in itself, to establish Burkett's claim. He
must show more. The determination of whether there was any retaliation, and
whether that retaliation influenced the decision of the Parole Board, is a matter
that must be addressed by the state courts.
46
Accordingly, we will remand this case to the district court with instructions to
dismiss the petition so that Burkett may proceed in the state court.
STAPLETON, Circuit Judge, concurring:
47
I concur in the judgment of the court. For the reasons stated by the court and
the dissent in Reider, I predict that the Supreme Court of Pennsylvania would
hold that the Commonwealth Court has jurisdiction to entertain Burkett's claim.
I am unable to join the opinion of the court, however, because I think any other
avenue to relief for Burkett is barred by authoritative precedent. As the court
properly concludes, the Post Conviction Relief Act is not applicable. In
addition, under current Pennsylvania law, Burkett cannot seek review of a
parole denial in a state habeas corpus1 or mandamus proceeding.2
48
The petition for rehearing filed by appellant in the above-entitled case having
been submitted to the judges who participated in the decision of this Court and
to all the other available circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having asked for rehearing, and a
majority of the circuit judges of the circuit in regular active service not having
voted for rehearing by the court in banc, the petition for rehearing is denied.
50
Although the district court order uses the term exhaustion of "administrative
remedies," it is clear on examination of the record and in context that this was
an inadvertent misnomer and that what was intended was "exhaustion of state
remedies."
Section 106 of the Act provides that a second or successive application for
habeas corpus shall be dismissed unless, inter alia, a factual predicate exists that
could not have been discovered earlier. In the case at hand, that circumstance
exists. Section 106 also provides that a second petition must first be presented
to the Court of Appeals before it may be filed in the district court. The present
petition had been filed before that amendment to 2254 was enacted, and
consequently, it does not apply here
review)
4
Whether the Parole Board would be estopped from pleading a time bar because
of its erroneous representation to Burkett about appealability, we leave to the
Commonwealth Court
In Commonwealth ex rel. Biglow v. Ashe, 348 Pa. 409, 35 A.2d 340 (1944),
the Pennsylvania Supreme Court ruled that a parole denial could not be
challenged using a writ of habeas corpus. "[T]his court cannot review the
actions of the Parole Board in denying him parole ...; neither can we pass on the
fairness and impartiality of the hearing he had before the Parole Board." Id. 35
A.2d at 341. This holding has not been overruled, limited, or weakened in the
half-century since it was handed down
Mandamus will not lie to compel discretionary acts, see Bronson v. Board of
Probation and Parole, 491 Pa. 549, 421 A.2d 1021, 1023 (1980), and a parole
decision is characterized as a discretionary act by statute, see 61 Pa.C.S.
331.19, and by courts, see, e.g., Greenholtz v. Nebraska Penal and Correctional
Complex Inmates, 442 U.S. 1, 10, 99 S.Ct. 2100, 2105, 60 L.Ed.2d 668 (1979)