Wаyne Paul BURKETT, Appellant, v. William LOVE, Superintendent, et al., Answering Respondent Blair County District Attorney, Appellees.
No. 95-3525.
United States Court of Appeals, Third Circuit.
Argued April 30, 1996. Decided July 12, 1996.
Sur Petition for Rehearing Aug. 16, 1996.
89 F.3d 135
III. CONCLUSION
The judgment of the district court dismissing plaintiffs’ complaint on the grounds of mootness is vаcated. The case is remanded to the court for further proceedings consistent with this opinion.
Shelley Stark (argued) Federal Public Defender, Karen Sirianni Gerlach, Assistant Federal Public Defender, Pittsburgh, PA, for Appellant.
David C. Gorman (argued) Office of District Attorney for Blair County, Hollidaysburg, PA, for Appellees.
Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges.
OPINION OF THE COURT
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 сourt 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, hе was convicted of burglary, theft, receiving stolen property, and corruption of minors, docketed in 1981 at Nos. 140/141. On January 20, 1982, Burkett was convicted of rape, involuntary deviate sexual intercourse, terroristic threats, unlawful restraint,
In an earlier proceeding, we granted habeas corpus relief resulting in the vacation of the convictions at Nos. 140/141 and 161 because of inordinate delays in sentencing. See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir.1987). In Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir.1991), we held that the sentence imposed at No. 284 should be reduced because of delay.
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 а term of 12 1/2 to 28 1/2 years. In February 1993, Burkett filed a
In September 1994, the Pennsylvania Parole Board denied petitioner‘s request for parole, citing, among other reasons, “very high assaultive behavior potential” and “unfavorable recommendation from district attorney and sentencing judge.” The Board rejected petitioner‘s request for reconsideration, stating: “Be advised that what the Board decides and why, with regard to parole/reparole, is wholly within the Board‘s discretion and not subject to judicial review. Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 333, 514 A.2d 967 (1986) (en banc).”
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
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 оf the matter is final as a practical matter and we have jurisdiction to consider this appeal.
II. Exhaustion of State Remedies
State prisoners alleging a constitutional violation and improper incarceration must present their arguments to the state courts before they will be addressed by the federal courts.
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).
After this appeal was taken, Congress enacted the
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?
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).
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
Because the Court‘s jurisdiction to review agency decisions rests on the administrative agency law of Pennsylvania,
The Reider opinion acknowledged that the Pennsylvania Supreme Court in Bronson v. Pennsylvania Bd. of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980) had held that a prisoner could seek judicial review of a parole revocation. In distinguishing Bronson, the Commonwealth Court cited Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), which concluded that a parole revocation affected a liberty interest because the ruling returned a parolee to custody. In contrast, a prisoner denied parole is not at liberty but remains in custody and thus his status remains unchanged.
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.
Later panel opinions of the Commonwealth Court seem to indicate that it is having second thoughts about the scope of the Reider holding. Thus, in Murgerson v. Pennsylvania Bd. of Probation and Parole, 135 Pa.Cmwlth. 10, 579 A.2d 1335, 1336 n. 2 (1990), the Court commented that because the imposition of conditions is a part of the parole decision, “consistent with the rationale in Reider we hold that the imposition of such conditions is not subject to judicial review absent an allegation that the condition violates a prisoner‘s constitutional rights.” (emphasis added). See also McCaskill v. Pennsylvania Bd. of Probation and Parole, 158 Pa.Cmwlth. 450, 631 A.2d 1092, 1094 n. 2 (1993) (judicial review of Parole Board‘s order includеs determination of whether constitutional rights were violated, citing
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).
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.
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.
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 protec-
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.
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 рrisoner was Hispanic states claim for violation of equal protection); Osborne v. Folmar, 735 F.2d 1316, 1317 (11th Cir.1984) (prisoner may challenge parole decisions on equal protection grounds even though he fails to establish due process claim).
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 Bd., 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).
Several Courts of Appeals have addressed analogous retaliation claims in the prison setting, although not involving parole decisions. Adams v. James, 784 F.2d 1077, 1080 (11th Cir.1986), noted that the “unconstitutional conditions” doctrine applies in prisoner section 1983 cases. Accord Woods v. Edwards, 51 F.3d 577, 580 (5th Cir.1995) (“It is settled that prison officials cannot act against a prisoner for availing himself of the courts and attempting to defend his constitutional rights“).
In Burton v. Livingston, 791 F.2d 97 (8th Cir.1986), the complaint alleged threats made by a prison guard in retaliation for testimony given by the inmate in another case. These facts supported a section 1983 claim for violation of the prisoner‘s “due-process and First Amendment right of access to the federal courts.” Id. at 100. Accord Newsom v. Norris, 888 F.2d 371, 375 (6th Cir.1989).
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 abrоgation 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.
It is important, therefore, to assess the attitude of the state‘s highest court. In discussing the right of appeal in parole cases, the Pennsylvania Supreme Court in Bronson explained that the state‘s constitution guarantees the right to an appeal from an administrative agency (including the Pennsylvania Parole Board) to a court. 421 A.2d at 1024-25. Implementing legislation designated the Commonwealth Court as the appropriate court of record for agency review.
As we read Bronson, therefore, it is reasonable to assume that the Commonwealth Court has jurisdiction over appeals from a denial of parole based on constitutional grounds other than an alleged abrogation of a liberty interest. To that extent, we conclude that Reider does not state the law
One other procedural avenue appears open to Burkett. Reider itself acknowledged that “mandamus is available to compel the Board to conduct a hearing or correct a mistake in applying the law.” 514 A.2d at 972 n.4. In Commonwealth ex rel. Saltzburg v. Fulcomer, 382 Pa.Super. 422, 555 A.2d 912 (1989), the Superior Court noted a distinction between an appeal from a “discretionary decision” of the Board and an action that seeks to compel the Board to act in accordance with its own regulations. In the latter circumstance, the Superior Court held that mandamus was the appropriatе remedy and transferred an appeal from a Board ruling to the Commonwealth Court. Id. 555 A.2d at 914.
We also consider whether Burkett may be able to proceed in the state courts under the
In Commonwealth v. Hayes, 408 Pa.Super. 68, 596 A.2d 195 (1991), the Superior Court held that the language of the
The
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
In Commonwealth v. Isabell, 503 Pa. 2, 467 A.2d 1287, 1291 (1983) (challenging Bureau of Corrections’ interpretation of term оf incarceration), the state Supreme Court held that where a prisoner did not mount a “direct or collateral attack on the conviction or sentence imposed by the trial court,” the proper remedy was not under the Post Conviction Hearing Act (the predecessor statute), and “[c]onsequently, appellant may resort to the writ of habeas corpus ad subjiciendum.” Id. Similarly, in Commonwealth v. Maute, 263 Pa.Super. 220, 397 A.2d 826, 829 (1979), the Superior Court held that “[a] claim for ‘cruel and unusual punishment’ is more properly cognizable in a petition for habeas corpus” than under the Post Conviction Hearing Act.
Those two cases were decided before the
We read Isabell, 467 A.2d at 1291, as permitting a petition for habeas corpus relief in
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 rеquiring 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.
Clarification is highly desirable and counsels in favor of exhaustion of state remedies rather than resolution on the merits in the first instance by the district court. Failure to require resort to the state courts in these circumstances would not be consistent with a sound exеrcise of discretion. Moreover, we find some gaps in the record, such as the absence of the letters written to the Parole Board by the sentencing judge and the district attorney, that make us hesitant to address the merits of Burkett‘s petition at this stage.
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.
Pennsylvania law provides that the Parole Board “shall, in all cases, consider” recommendations from district attorneys and sentencing judges,
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:
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 preсedent. As the court properly concludes, the
Before: SLOVITER, Chief Judge, BECKER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, COWEN, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and WEIS,* Circuit Judges.
SUR PETITION FOR REHEARING
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 sеrvice, 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.
Judge Mansmann would have granted rehearing.
* Judge Weis‘s vote is limited to panel rehearing only.