                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2005

DeFoy v. McCullough
Precedential or Non-Precedential: Precedential

Docket No. 03-3474




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                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
             ___________

                 No. 03-3474
                 ___________


               ROBERT DEFOY,

                       Appellant

                       v.

   JOHN M . MCCULLOUGH, Superintendent:
     GERALD J. PAPPERT, Att. General:
       PENNSYLVANIA BOARD OF
        PROBATION AND PAROLE


                 ___________

   APPEAL FROM THE UNITED STATES
   DISTRICT COURT FOR THE WESTERN
      DISTRICT OF PENNSYLVANIA

             (D.C. No. 00-cv-00110E)
District Judge: The Honorable Sean J. McLaughlin
                   ___________
                 ARGUED MAY 11, 2004

BEFORE: NYGAARD, M cKEE, and WEIS, Circuit Judges.


                  (Filed: January 4, 2005)


                       ___________




Thomas W. Patton, Esq. (Argued)
Office of Federal Public Defender
1001 State Street
1111 Renaissance Centre
Erie, PA 16501
       Counsel for Appellant


Scott A. Bradley, Esq. (Argued)
Office of Attorney General of Pennsylvania
564 Forbes Avenue M anor Complex, 6 th Floor
Pittsburgh, PA 15219

James K. Vogel, Esq.
Office of District Attorney
140 West 6th Street
Erie, PA 16501
       Counsel for Appellees


                               2
                         ___________

                 OPINION OF THE COURT
                      ___________


NYGAARD, Circuit Judge.

       This case arises from a situation that is troubling on

several accounts: First, because it highlights the procedural

morass that state prisoners face in pursuing habeas relief, and

second, because it illustrates the tension between what should be

the touchstone of any penal system—rehabilitation—and a

convicted sex offender’s rights against self-incrimination under

the Fifth Amendment. Presently, we must determine whether a

Pennsylvania state prisoner challenging his denial of parole on

Fifth Amendment grounds must first seek a writ of mandamus

in state court before seeking federal habeas review. For the

reasons that follow, we hold that the answer is no.



                               3
                                   I.

           Robert DeFoy was convicted in state court of armed

robbery. He served ten years of a 10–20 year sentence before

being paroled. Shortly after his release, DeFoy was recommitted

as a technical parole violator to serve eighteen additional

months. After serving this additional time, he was re-paroled.

           While on parole for the second time, DeFoy was arrested

for involuntary deviate sexual intercourse, statutory rape, and

corruption of a minor. During trial on these charges, DeFoy

testified as to his innocence but was convicted nonetheless and

sentenced to 78–156 months imprisonment. In addition, the

state court revoked his parole on the armed robbery sentence and

ordered him to serve an additional forty months imprisonment

for that offense.1 Finally, the sentencing judge recommended


1.
     Under Pennsylvania law, “[a] grant of parole does not eliminate
                                                      (continued...)

                                   4
that DeFoy participate in Pennsylvania’s Sexual Offender

Treatment Program. Because DeFoy was unwilling to admit he

committed the sex offenses, however, he was precluded from

participating in the Program.2 In turn, he was twice denied

parole while serving the armed robbery sentence because he had

not participated in the Program. DeFoy’s direct appeals in the

Pennsylvania courts were denied on the basis that denials of

parole are not appealable in those courts. He did not file a writ

of mandamus or a writ of habeas corpus in state court and

instead sought federal habeas relief.




1.
 (...continued)
a prisoner’s sentence, but instead, the prisoner continues to serve
his sentence during which time he or she is the subject of
society’s rehabilitation efforts under supervision.” Weaver v.
Pa. Bd. of Prob. & Parole, 688 A.2d 766, 769 (Pa. Commw. Ct.
1997). Once DeFoy violated his parole by committing new
crimes, he was subject to being recommitted on his armed
robbery sentence.
2.
 One of the specific criteria for the treatment phase of the
Program stipulates that an inmate must “admit [his] offense.”
See App. at 239.

                                5
       DeFoy’s amended petition under 28 U.S.C. § 2254

included several claims, but only one is presently relevant.

According to DeFoy, the requirement that he admit guilt to

qualify for the Sexual Offender Treatment Program violates his

Fifth Amendment right against coerced self-incrimination. The

District Court referred this claim to the Magistrate Judge, who

ultimately concluded it was likely DeFoy could have filed a

petition for a writ of mandamus in the Pennsylvania state courts.

In light of our instruction that any ambiguity concerning the

availability of a state remedy should result in a habeas petition

claim being dismissed as unexhausted, see Coady v. Vaughn,

251 F.3d 480, 489 (3d Cir. 2001), the Magistrate Judge

recommended that the District Court dismiss the petition. The

District Court adopted the Magistrate Judge’s Report and

Recommendation in its entirety, but entered a certificate of

appealability on the following question: “Whether constitutional

claims concerning the denial of parole in Pennsylvania, other

than those premised upon the ex post facto Clause, must be


                               6
presented to the state courts in order to satisfy the exhaustion

requirement.”

                                II.

        We have jurisdiction over a District Court’s final order

dismissing a habeas petition pursuant to 28 U.S.C. §§ 2253 and

1291.

                                A.

        The threshold issue before us is whether DeFoy’s petition

is moot. The Commonwealth claims this is the case because

DeFoy is no longer serving his sentence for armed robbery, but

instead is now serving his sentence for the sex offenses. Thus,

according to the Commonwealth, any denial of parole occurring

while DeFoy was still serving his armed robbery sentence will

remain unaffected by our ruling. This argument is flawed.

        A prisoner may seek federal habeas relief only if he is in

custody in violation of the constitution or federal law. 28 U.S.C.

§ 2254(a).    Moreover, a petition for habeas corpus relief

generally becomes moot when a prisoner is released from


                                7
custody before the court has addressed the merits of the petition.

Lane v. Williams, 455 U.S. 624, 631 (1982).            This general

principle derives from the case or controversy requirement of

Article III of the Constitution, which “subsists through all

stages of federal judicial proceedings, trial and appellate . . . the

parties must continue to have a personal stake in the outcome of

the lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78

(1990) (internal citations and quotations omitted). In other

words, throughout the litigation, the plaintiff “must have

suffered, or be threatened with, an actual injury traceable to the

defendant and likely to be redressed by a favorable judicial

decision.” Id. at 477; see also Maleng v. Cook, 490 U.S. 488,

492 (1989) (holding that habeas petitioner does not remain “in

custody” after the sentence imposed has fully expired merely

because of the possibility that the prior conviction will be used

to enhance sentences imposed for any subsequent crimes of

which he is convicted); United States v. Romera-Vilca, 850 F.2d

177, 179 (3d Cir. 1988) (holding that prisoner’s motion to


                                 8
vacate his conviction was not mooted when he was released

from custody, where he faced potential deportation as a

collateral consequence of conviction).

       In Garlotte v. Fordice, 515 U.S. 39, 41 (1995), the

Supreme Court held that a prisoner’s challenge to the validity of

his conviction was not moot despite the fact that he was no

longer in custody for that conviction. The Court reasoned that

because Garlotte was still in custody for sentences consecutive

to that already served, he could attack the conviction underlying

the sentence that ran first in the series. Id. Although the facts

in Garlotte are somewhat different from those here (i.e., the

prisoner there had been convicted and sentenced by the same

court at the same time), Garlotte allows us to review a

completed sentence when the prisoner, like DeFoy, is still

serving a sentence imposed by a different court at a different

time. See Foster v. Booher, 296 F.3d 947, 950 (10th Cir. 2002).

       DeFoy was required to serve the remainder of his armed

robbery sentence before he could begin serving his sex offense


                               9
sentence. The effect of any error as to the former was to delay

the start of the latter. Thus, because any remedy we grant

DeFoy might affect his release date for the sentence he is

currently serving, we conclude that under Garlotte and Foster,

DeFoy’s habeas petition is not moot. 3

                               B.

       We 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


3.
 There is also a narrow exception to the general mootness rule
that rescues DeFoy’s petition from being moot. The doctrine of
collateral consequences applies where a former prisoner can
demonstrate he will suffer some collateral consequences if his
conviction is allowed to stand. See Carafas v. LaVallee, 391
U.S. 234, 237-38 (1968); Chong v. Dist. Dir., INS, 264 F.3d
378, 384 (3d Cir. 2001). It is a petitioner’s burden to
demonstrate that collateral consequences exist to avoid having
a case dismissed as moot. United States v. Kissinger, 309 F.3d
179, 181 (3d Cir. 2002). The Supreme Court has held that the
length of a term of supervised release cannot be reduced “by
reason of excess time served in prison.” United States v.
Johnson, 529 U.S. 53, 60 (2000). Requiring DeFoy to admit his
guilt after having consistently denied it may have the collateral
consequence of his being indicted for perjury. Therefore, even
if DeFoy had already been released from prison, the collateral
consequences doctrine would prevent the issue from being moot.

                               10
doing so would be futile because state procedures are

unavailable or ineffective.     28 U.S.C.     § 2254(b).     The

exhaustion doctrine addresses “federalism and comity concerns

by affording the state courts a meaningful opportunity to

consider allegations of legal error without interference from the

federal judiciary.” Coady, 251 F.3d at 488 (internal citations

and quotations omitted). The burden is on the habeas petitioner

to prove exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d

Cir. 1993). The District Court—in the midst of considerable

jurisprudential confusion on the issue—concluded that DeFoy

failed to exhaust his state remedies because he could have filed

a petition for a writ of mandamus in the state court before

proceeding with his federal habeas corpus petition. We apply

plenary review to this conclusion. Whitney v. Horn, 280 F.3d

240, 249 (3d Cir. 2002).

       Although we have requested, and received, some

clarification from the Pennsylvania Supreme Court regarding the

remedies available to prisoners who wish to challenge their


                               11
denial of parole on constitutional grounds, see, e.g., Coady v.

Vaughn, 770 A.2d 287 (Pa. 2001), the Court’s response is not

conclusive as to the issues before us now. Therefore, some

recitation of the relevant Pennsylvania case law is in order.

       In Burkett v. Love, 89 F.3d 135, 142 (3d Cir. 1996), we

predicted that Pennsylvania courts would permit three methods

of attacking the denial of parole in Pennsylvania courts: direct

appeal, mandamus, and state habeas corpus. Our predictions

were refuted in Weaver v. Pennsylvania Board of Probation &

Parole,   688    A.2d   at   766,   when    the   Pennsylvania

Commonwealth Court declined to adopt the reasoning in Burkett

and held these suggested remedies to be unavailable. It noted,

specifically, “we do not believe that the remedies suggested in

Burkett are available to a prisoner who has been denied parole

based upon an unconstitutional factor.” Id. at 771–72. It is

certainly worth noting that the issue in Weaver was identical to

the issue here: whether a parole board may deny parole based on

the fact that a prisoner has not completed a sex offender


                               12
treatment program when that failure stems from the prisoner’s

refusal to admit guilt for the sex offense in the first place.

       In light of Weaver, several District Courts in our Circuit

relied on the premise that there were no remedies in

Pennsylvania state courts for prisoners who wished to challenge

the denial of parole, even when the denial was based on an

unconstitutional factor.    As a result, these courts excused

exhaustion of state remedies. See, e.g., Bonilla v. Vaughn, No.

97-7440, 1998 WL 480833 at *5 (E.D. Pa. Aug. 14, 1998);

Speth v. Pennsylvania Bd. of Probation & Parole, No. 98-1631,

1998 WL 272155 at *2 (E.D.Pa. May 18, 1998); cf. George v.

Vaughn, No. 98-3, 1998 WL 188847, at *2 (E.D. Pa. April 21,

1998) (“[I]t is not clear whether any remedies are available in

Pennsylvania to challenge the denial of parole.”).

       This area of law became conflicted, however, when the

Pennsylvania Commonwealth Court in Myers v. Ridge, 712

A.2d 791, 794 (Pa. Commw. Ct. 1998), seemingly ignoring

Weaver, reached the merits of a prisoner’s due process, ex post


                                13
facto, and equal protection claims because it found that it may

entertain an application for a writ of mandamus to review the

Board’s denial of parole “to the extent that a constitutional or

statutory violation has occurred.” The Commonwealth Court’s

failure to distinguish its decision in Myers from its holding in

Weaver—or for that matter to even cite to Weaver—added to the

already confusing jurisprudence.

       The Pennsylvania Supreme Court entered the fray in

Rogers v. Pennsylvania Board of Probation and Parole, 724

A.2d 319 (Pa. 1999), holding that direct appeal is not available

to challenge the denial of parole. Id. However, in a footnote,

the Rogers Court made what can be considered as only a passing

reference to the question at issue, recognizing the potential

viability of a writ of mandamus. Id. at 323 n.5. It noted that

mandamus “may be available to compel the Parole Board to

conduct a hearing or to apply the correct law.” Id. (emphasis

added). It seems plain enough that saying something “may” be

available is not the same as saying something “is” available.


                              14
       Given the Pennsylvania Supreme Court’s equivocation,

we did not consider this to be a conclusive and final clarification

of the issue, and we subsequently certified the question to the

Pennsylvania Supreme Court. Specifically, we asked:

       1. May a person who has been denied parole
       from a Pennsylvania sentence obtain review from
       a Pennsylvania state court of a claim that the
       denial of parole violated the ex post facto clause
       of the United States Constitution?

       2. If so, may review be appropriately secured on
       direct appeal, through a petition for a writ of
       mandamus, or in some other manner?

Coady, 251 F.3d at 489. The Pennsylvania Supreme Court

advised that where:

       discretionary actions and criteria are not being
       contested but rather the actions of the board taken
       pursuant to changed statutory requirements are
       being challenged, an action for mandamus
       remains viable as a means for examining whether
       statutory requirements have been altered in a
       manner that violates the ex post facto clause.
       Such an action could be brought in the original
       jurisdiction of the Commonwealth Court. Absent
       a change in the statutes governing parole,
       however, denial of parole would generally
       constitute a discretionary matter that is not subject
       to review.


                                15
Coady, 770 A.2d at 290.            Importantly, the Pennsylvania

Supreme Court in Coady provided guidance only as to

challenges to denials of parole premised on violations of the ex

post facto Clause. It specifically held that “parole denial claims

are not normally suited to review by way of mandamus.” Id. at

290. It held, moreover, that “[m]andamus will not lie to compel

a purely discretionary act.” Id.

       Inasmuch as Weaver has never been overruled, we

conclude that it is the best indication of how the Pennsylvania

Supreme Court would resolve the issues raised by DeFoy.

Because the Commonwealth Court’s decision in that case is

directly on point, it is highly instructive here. Therefore, 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.

       The Weaver Court held that mandamus is not available to

a prisoner denied parole based upon a constitutional error by the

parole board. 688 A.2d at 771–72. The Court explained:


                                16
       Mandamus is based upon a duty by an agency to
       follow a law and is available only when, under a
       correct interpretation of that law, the agency has
       an absolute ministerial duty—no choice—to act in
       a certain way. Mandamus cannot be used to say
       that an agency considered improper factors, that
       its findings of fact were wrong, or that the reasons
       set forth in its decision are a pretense. If that was
       the nature of mandamus, there would be no
       difference between it and an appeal from the
       agency’s decision or other forms of actions to
       address those concerns.

Id. at 777 (emphasis added) (footnote omitted). As in Weaver,

DeFoy’s refusal to admit guilt was the dispositive— albeit

potentially improper— factor in the denial of his parole. As the

Weaver Court explains, however, mandamus is not available to

review a parole board’s consideration of improper factors. By

force of logic, therefore, DeFoy is not entitled to seek a writ of

mandamus on his claim.

       We do not believe the decision of the Pennsylvania

Supreme Court in Coady is in conflict with our conclusion. Our

certified question in that case concerned the availability of

mandamus for challenges to the denial of parole premised solely



                                17
upon the ex post facto Clause, not upon any and all

constitutional protections.    In response, the Pennsylvania

Supreme Court held that mandamus is available where a

challenge to the denial of parole is premised on the ex post facto

Clause. In the same breath, however, it held that “[a]bsent a

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

would generally constitute a discretionary matter that is not

subject to review [via a petition for writ of mandamus].”

Coady, 770 A.2d at 290. The Court also explained that “parole

denial claims are not normally suited to review by way of

mandamus.” Id. A fair reading of Coady suggests a hesitance

on the part of the Pennsylvania Supreme Court to permit a writ

of mandamus to review the denial of parole.

       We therefore read Coady’s holding narrowly, applying

only to ex post facto claims. Indeed, if mandamus extended

beyond    the   holding   in   that case,    it   would—as    the

Commonwealth Court explained in Weaver—be no different

than a direct appeal. See Weaver, 688 A.2d at 777. And


                               18
whatever the status of mandamus, it is settled that no direct

appeal is available.   See Coady, 770 A.2d at 289.         Thus,

mandamus is not available for Pennsylvania state prisoners

seeking to challenge the denial of their parole on constitutional

grounds other than the ex post facto Clause.

       Accordingly, in answer to the question submitted by the

District Court, we conclude that claims of constitutional

violations in the denial of parole in Pennsylvania need not be

presented to the state courts via a petition for writ of mandamus

in order to satisfy the requirement of exhaustion. We reverse the

District Court to the extent it held otherwise and remand so the

District Court may address the merits of DeFoy’s petition.4


4.
  We do not reach DeFoy’s constitutional argument under the
Fifth Amendment. He alleges that because Pennsylvania’s
practice makes parole for any sex offender contingent on
participation in the Sexual Offender Treatment Program, and the
Program in turn requires that he admit guilt, the Program
violates his rights under the Fifth Amendment.              We
acknowledge that if DeFoy’s allegations are accurate, then he
was presented with an unenviable choice: refuse to admit guilt
and be ineligible to participate in the Program, thereby losing
eligibility for parole, or admit guilt and incriminate himself,
                                                  (continued...)

                               19
                                III.

       We reverse the judgment of the District Court dismissing

DeFoy’s claims as unexhausted and remand for proceedings

consistent with this opinion.


_________________________




4.
 (...continued)
providing evidence that would most certainly be used against
him in any post-conviction efforts to demonstrate his innocence.
However, because the District Court did not certify to us the
question of the Program’s constitutionality, we express no view.

                                20
9DeFoy v. McCullough, No. 03-3474
____________________________________________

Weis, Circuit Judge, concurring.

        I agree with the result reached by the majority, but arrive

there by a different route.     In my view, Pennsylvania law

provides a procedure through which DeFoy may present his

claim to the state courts and indicates that they have jurisdiction

over that remedy. However, it would be futile to require him to

pursue his efforts in the state forum, because, on several

occasions, the Commonwealth Court has denied claims similar

to DeFoy’s on the merits. Therefore, the District Court should

excuse exhaustion of state remedies and proceed to decide the

case.

                                 A.

        As the majority notes, the means by which a state

prisoner may seek relief in state courts from a denial of parole

based on a constitutional violation is a matter of considerable

jurisprudential confusion. In Burkett v. Love, 89 F.3d 135 (3d



                                21
Cir. 1996), we reviewed the opinions of the Pennsylvania

Supreme Court and the Commonwealth Court as of that time

and concluded that a prisoner had “available three potential

ways of attacking the denial of parole in Pennsylvania courts –

appeal, mandamus or habeas corpus.”

       Following our decision in Burkett, the Pennsylvania

Supreme Court held that Parole Board decisions are not

“adjudications” under state law and, therefore, they are not

appealable. Rogers v. Pa. Bd. Of Prob. & Parole, 724 A.2d 319

(Pa. 1999). However, in a footnote the Court said,

       “While appellants are not entitled to appellate
       review of a Parole Board decision, they may be
       entitled to pursue allegations of constitutional
       violations against the Parole Board through a writ
       of mandamus, or through an action under 42
       U.S.C. § 1983.5 Mandamus is an extraordinary
       remedy which is available to compel the Parole
       Board to conduct a hearing or to apply the correct
       law.”

Id. at 323 n.5 (internal citations omitted).


5.
  Whether § 1983 is a proper remedy for denial of parole was
argued before the United States Supreme Court on December 6,
2004 in the case of Wilkinson v. Dotson, No. 03-287.

                                22
       In Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001),

we certified a narrow question to the Pennsylvania Supreme

Court – may a person who has been refused parole obtain review

in a Pennsylvania state court of a claim that the denial “violated

the ex post facto clause of the United States constitution,” and,

if so, “may review be appropriately secured on direct appeal,

through a petition for a writ of mandamus, or in some other

manner.” Coady, 251 F.3d at 489.

       In response to our inquiry, the Pennsylvania Supreme

Court acknowledged that “parole denial claims are not normally

suited to review by way of mandamus” and “mandamus will not

lie to compel a purely discretionary act.” Coady v. Vaughn, 770

A.2d 287, 290 (Pa. 2001). However, the court explained

       “where . . . discretionary actions and criteria are
       not being contested . . . an action for mandamus
       remains viable as a means for examining whether
       statutory requirements have been altered in a
       manner that violates the ex post facto clause.
       Such an action could be brought in the original
       jurisdiction of the Commonwealth Court.”




                               23
Id.; see also Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d 859

(Pa. 2004) (entertaining an appeal from Commonwealth Court’s

dismissal of a mandamus petition and holding that the ex post

facto clause had not been violated.); Finnegan v. Pa. Bd. of

Prob. & Parole, 838 A.2d 684, 687 (Pa. 2003) (citing Coady and

concluding that mandamus is the “proper avenue for seeking

relief” under the ex post facto clause of the United States

Constitution).

       Although in Coady the Pennsylvania Supreme Court did

not consider the availability of mandamus for constitutional

challenges other than those raising the ex post facto clause,6 no

subsequent opinion by that court has expressly confined the

holding in Coady to preclude other constitutional challenges.

       In Winklespecht v. Pennsylvania Board of Probation &

Parole, 813 A.2d 688 (Pa. 2002), the Court considered the

merits of the appellant’s ex post facto claim, but concluded that



6.
  Given the limited question this Court certified, the answer was
jurisprudentially correct.

                               24
no relief was due. The Court declined to decide whether habeas

corpus was an available remedy for a “true constitutional claim.”

Id. at 692.

       Justice Castille’s concurring opinions, both joined by

Justice Newman, in Coady and Winklespecht suggest that a

constitutional challenge to a parole denial may by cognizable

under Pennsylvania’s habeas corpus statute. Justice Castille

noted that “because the practical effect of a parole denial is the

continuation of the prisoner’s incarceration, a petition for writ

of habeas corpus would seem to be the logical and appropriate

manner to raise a viable constitutional claim stemming from the

Parole Board’s decision.” Coady v. Vaughn, 770 A.2d 287, 291

(Pa. 2001) (Castille, J., concurring). Justice Castille stated that

comments on habeas corpus to the contrary in Weaver v. Pa. Bd.

of Prob. & Parole, 688 A.2d 76 (Pa. Commw. Ct. 1997), were

“problematic to say the least.” Id. at 294.

       I have found no opinion of the Pennsylvania Supreme

Court post-Coady containing any language suggesting that only


                                25
constitutional claims raising an ex post facto charge are subject

to review. Similarly, research has not uncovered any holding of

the Pennsylvania Commonwealth Court after Coady stating that

mandamus jurisdiction is limited to ex post facto claims. In fact,

in Voss v. Pennsylvania Board of Probation & Parole, 788 A.2d

1107 (Pa. Commw. Ct. 2001), a post-Coady case, the Court

addressed   the merits of a mandamus case involving

constitutional issues other than the ex post facto clause. Voss

sustained an inmate’s due process challenge, concluding that it

was “not persuaded that” denial of a “parole application based

upon a [concept of] ‘achieving the fair administration of

justice’... meets the requirements of due process.” Id. at 1111.




       Similarly, in Evans v. Pennsylvania Board of Probation

& Parole, 820 A.2d 904 (Pa. Commw. Ct. 2003), also post-

Coady, an inmate presented claims of both an ex post facto

clause violation and a denial of due process. The Court denied

both claims on the merits but conceded a constitutional right to

due process in parole cases.      Id.   The Court did not deny

mandamus jurisdiction on either claim.



                               26
       Weaver, 688 A.2d 766, is a pre-Coady opinion. In that

case, the prisoner alleged a Fifth Amendment violation in being

denied parole because he refused to admit guilt in order to

qualify for the Sex Offender Treatment program. Id. at 769.

The Commonwealth Court found that it had no jurisdiction to

consider the claim as a direct appeal, a holding later confirmed

by Rogers.    Id. at 770-71. In the course of discussing the

availability of mandamus, the court said that, “Mandamus

cannot be used to say that an agency considered improper

factors . . ..” Id. at 777. The Court explained

       “Because there is no constitutional prohibition
       against using Weaver’s refusal to admit that he
       committed the rape for which he was convicted as
       a basis for denying participation in treatment
       program, and because a failure to successfully
       complete that program is a valid reason for
       denying parole, Weaver has failed to set forth a
       cause of action in mandamus.”

Id. at 779.

       In other portions of its opinion, however, Weaver

referred to constitutional violations “that are wholly extraneous

to the decision of whether or not to grant parole, i.e., retaliation

for bringing a lawsuit, race, religion and national origin.” Id. at

773.   These matters are “non-legitimate and non-bona fide

                                27
reasons for denying parole because they have no relation to the

parole process.” Id. A fair reading of Weaver reveals that it

recognizes   that    mandamus       jurisdiction   exists   in   the

Commonwealth Court for constitutional violations that should

not enter into a parole decision.

       Less than a year after Weaver, in a case “in the nature of

mandamus,”     the   Commonwealth        Court     suggested     that

mandamus was available to remedy constitutional violations in

the refusal of parole.   Myers v. Ridge, 712 A.2d 791 (Pa.

Commw. Ct. 1998). The Court noted that “decisions to grant or

deny parole” are not usually reviewable except where “a

constitutional or statutory violation has occurred.” Id. at 794.

Myers did not discuss or cite Weaver even though the factual

predicates and legal issues were similar.

       My research persuades me that Pennsylvania does

provide a remedy for constitutional violations that infect parole

denial proceedings. The state supreme court seemingly would

permit the use of mandamus for that purpose. The court has not




                               28
definitively addressed the question of whether habeas corpus is

available.7

       I am convinced that the courts of Pennsylvania would not

deny jurisdiction over claims of constitutional violations in

prison settings or elsewhere. Consequently, I would hold that

DeFoy’s claim would find a jurisdictional basis in the

Pennsylvania courts.

                               B.

       The exhaustion of state remedies requirement is excused

when resort to the state courts would be futile.      Lynce v.

Mathias, 519 U.S. 433 (1997); Whitney v. Horn, 280 F.3d 240

(3d Cir. 2002); Lines v. Larkins, 208 F.3d 153 (3d Cir. 2000).

The Pennsylvania courts have rejected the constitutional theory

espoused by DeFoy on a number of occasions and there is no

reason to expect a different result if he would be required to

bring an action for mandamus. See Byrd v. Pennsylvania Bd. of

Prob. & Parole, 826 A.2d 65 (Pa. Commw. Ct. 2003); Sontag v.




7.
   In Winklespecht, the court noted, “. . . we leave for another
day the question of the propriety of habeas corpus as a remedy.”
Winklespecht, 813 A.2d at 692.

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Ward, 789 A.2d 778 (Pa. Commw. Ct. 2001); Weaver, 688 A.

2d 766 (Pa. Commw. Ct. 1997).

                                C.

       In these circumstances, where a remedy potentially exists

but attempting to exercise it would be futile, I agree with the

majority that exhaustion is not required and the District Court

should decide the case.

       The issues in this case are important, but in the absence

of a fully developed record, like the majority, I intimate no view

as to whether DeFoy has a cause of action. Some sources

bearing on the issue are McKune v. Lile, 536 U.S. 24 (2002);

Ainsworth v. Risley, 317 F.3d 1 (1 st Cir. 2002); see also Rauser

v. Horn, 241 F.3d 330 (3d Cir. 2001); Kerr v. Farrey, 95 F.3d

472 (7 th Cir. 1996); Seth Grossman, Note: A Thin Line Between

Concurrence and Dissent: Rehabilitating Sex Offenders in the

Wake of M cKune v. Lile, 25 Cardoza L. Rev. 1111 (2004)

(reviewing denial of parole to inmates later vindicated by DNA

evidence).

       A development of the record on the current practices of

the Department of Corrections and the Board of Parole with



                               30
respect to the implementation of the Sex Offender Treatment

Program may be in order. Consideration of alternatives to

admissions of guilt as a prerequisite to participation in a

program or eligibility for parole may be crucial.     See e.g.,

Jonathan Kaden, Therapy for Convicted Sex Offenders:

Pursuing Rehabilitation Without Incrimination, 89 J. Crim. L. &

Criminology 347 (1998); Colorado Dep’t of Corrections: State

Sex Offender Treatment Programs, 50 State Survey 2000.




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