                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-1996

Burkett v. Love
Precedential or Non-Precedential:

Docket 95-3525




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"Burkett v. Love" (1996). 1996 Decisions. Paper 99.
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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ____________

                             No. 95-3525
                             ____________

                          WAYNE PAUL BURKETT,
                                          Appellant
                                   v.

                WILLIAM LOVE, Superintendent, et al.,
                Answering Respondent BLAIR COUNTY DISTRICT
                ATTORNEY,
                                          Appellees
                             ____________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                      (D.C. No. 88-cv-01397)
                           ____________

                       Argued April 30, 1996

      Before:   STAPLETON, SCIRICA, and WEIS, Circuit Judges

                          Filed July 12, l996
                             ____________


Shelley Stark, Esquire (ARGUED)
Federal Public Defender
Karen Sirianni Gerlach, Esquire
Assistant Federal Public Defender
415 Convention Tower
960 Penn Avenue
Pittsburgh, PA 15222

Attorneys for Appellant


David C. Gorman, Esquire (ARGUED)
Office of the District Attorney
 for Blair County
413 Allegheny Street
Hollidaysburg, PA 16648

Attorney for Appellees




                             ____________
                      OPINION OF THE COURT
                          ____________


WEIS, Circuit Judge.
         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. 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, 1982, Burkett was convicted of rape, involuntary
deviate sexual intercourse, terroristic threats, unlawful
restraint, indecent exposure, reckless endangerment, indecent
assault, and aggravated assault, docketed in 1981 at No. 161. A
third conviction, entered on January 28, 1983 for attempted rape,
terroristic threats, assault, and reckless endangerment was
docketed in 1982 at No. 284.
         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. SeeBurkett 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 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.
         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, 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 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 interalia 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 of 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. 28
U.S.C.   2254(b). At the time the "motion" was filed in the
district court, 28 U.S.C.   2254(c) read: "An applicant shall
not be deemed to have exhausted the remedies available in the
courts of the State . . . if he has the right under the law of
the State to raise, by any available procedure, the questions
presented."
         To satisfy the exhaustion requirement, the claim must
be presented to the state's highest court. Rose v. Lundy, 455
U.S. 509, 515 (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
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. 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, 514 A.2d 967 (Pa. Commw. Ct. 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.
         Because the Court's jurisdiction to review agency
decisions rests on the administrative agency law of Pennsylvania,
2 Pa. Cons. Stat. Ann.    701-704, which authorizes appeals from
"adjudications," Reider looked to the statutory definition of
that word. The term "adjudication" excludes "any order based
upon a proceeding . . . which involves . . . paroles." 2 Pa.
Con. Stat. Ann.   101. The Commonwealth Court concluded that
"[b]y definition, therefore, Board action of denying parole is
not an adjudication subject to judicial review." Reider, 514
A.2d. at 970.
         The Reider opinion acknowledged that the Pennsylvania
Supreme Court in Bronson v. Pennsylvania Bd. of Probation and
Parole, 421 A.2d 1021 (Pa. 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 (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, 579 A.2d 1335, 1336 n.2 (Pa. Commw. Ct.
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, 631 A.2d 1092, 1094 n.2 (Pa. Commw. Ct.
1993) (judicial review of Parole Board's order includes
determination of whether constitutional rights were violated,
citing 2 Pa. Cons. Stat. Ann.   704).
         Other cases, however, are consistent with Reider. SeeShaw v.
Pennsylvania Bd. of Probation and Parole, 671 A.2d 290,
292 (Pa. Commw. Ct. 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, 534 A.2d 150, 151 (Pa. Commw. Ct. 1987) (retaliatory
denial not reviewable); Johnson v. Pennsylvania Bd. of Probation
and Parole, 532 A.2d 50, 52 (Pa. Commw. Ct. 1987) (due process
contention not reviewable).
         Reider was correct in its conclusion that no liberty
interest is created by the expectation of parole. SeeGreenholtz, 442 U.S.
at 11. 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 (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 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.
         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 prisoner 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 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).
         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 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.
         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. 42 Pa. Cons. Stat. Ann.
763. Bronson concluded that the Commonwealth Court had
jurisdiction over the appeal from a parole revocation decision
made by the Board. 421 A.2d at 1025-26. In its opinion, the
state Supreme Court did not indicate in any way that Commonwealth
Court would lack jurisdiction if the controversy had centered on
denial, rather than revocation, of parole.
         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 in
Pennsylvania and that Burkett was entitled to appeal to the
Commonwealth Court.
         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, 555 A.2d 912 (Pa. Super. Ct. 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 appropriate remedy and transferred an appeal from a Board
ruling to the Commonwealth Court. Id. at 914.
         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.
         In Commonwealth v. Hayes, 596 A.2d 195 (Pa. Super. Ct.
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.
         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.
         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.
         In Commonwealth v. Isabell, 467 A.2d 1287, 1291 (Pa.
1983) (challenging Bureau of Corrections' interpretation of term
of 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, 397 A.2d 826, 829 (Pa. Super. Ct.
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 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.
         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. SeeCommonwealth ex
rel. Biglow v. Ashe, 35 A.2d 340 (Pa. 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.
         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.
         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 exercise 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, 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.
         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.
_________________________________




BURKETT v. LOVE, No. 95-3525



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
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 corpus or mandamus proceeding.
