2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-4-2012

Roman v. DiGuglielmo

Precedential or Non-Precedential: Precedential

Docket No. 06-4644

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 06-4644

_____________

MARTIN A. ROMAN,

Appellant

v.

DAVID DIGUGLIELMO, Superintendent; 

PENNSYLVANIA BOARD OF

PROBATION AND PAROLE; THE DISTRICT 

ATTORNEY OF THE COUNTY

OF PHILADELPHIA; THE ATTORNEY GENERAL OF 

THE STATE OF PENNSYLVANIA

_____________

On Appeal from the District Court

for the Eastern District of Pennsylvania

(No. 2:05-cv-05771)

District Judge: Honorable Anita B. Brody

___________

Argued on October 5, 2011
2

Before: McKEE, Chief Judge, FUENTES and GREENBERG, 

Circuit Judges

(Opinion Filed: April 4, 2012)

Mary Gibbons, Esq. (ARGUED)

600 Mule Road, #16

Toms River, NJ 08757

Attorney for Appellant

William H. Ryan, Jr.

Claudia M. Tesoro (ARGUED)

Calvin R. Koons

John G. Knorr, III

Office of the Attorney General

21 South 12th Street, 3d Floor

Philadelphia, PA 19107

Attorneys for Appellees

OPINION OF THE COURT
3

Fuentes, Circuit Judge:

Martin Roman was convicted of indecent assault and 

corruption of a minor, both crimes involving his daughter, 

and is currently a prisoner of the Pennsylvania Department of 

Corrections. As part of his sentence, the State of 

Pennsylvania recommended that Roman participate in a sex 

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

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

convicted. Roman has refused to participate in the program 

because, he contends, any such admission would constitute 

compelled self-incrimination in violation of the Fifth 

Amendment and would have compromised his then-pending 

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

participate, Roman repeatedly has been denied parole. The 

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

deny Roman parole, unless he admits his guilt and 

participates in the sex offender treatment program, violates 

his Fifth Amendment right against self incrimination. We 

hold that it does not.

I.

In 1977 a jury found Roman guilty of two counts of 

third-degree murder. He received an aggregate sentence of 

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

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

on parole for the homicide conviction, Roman was accused of 

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

charged with endangering the welfare of a child, corruption of 

a minor, unlawful restraint, simple assault, recklessly 

endangering another person, false imprisonment, and indecent 

assault. 
4

Ultimately, Roman was convicted of indecent assault 

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

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

by two years‟ probation. The sentencing report recommended 

that he serve his sentence at a facility offering treatment for 

“Sexual Offenders and Abusers.” 

Following Roman‟s 2001 conviction, the Pennsylvania 

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

determined that Roman‟s conduct violated the terms of his 

parole from his homicide conviction. The Board ordered him 

to serve backtime and the remainder of his sentence for 

murder, pending parole, prior to beginning his sentence for 

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

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

institution‟s prescriptive program requirements and have no 

misconducts. [Roman] must participate in sex offender 

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

program requires that an inmate admit guilt for the offending 

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

participate because admitting his guilt could have jeopardized 

his then-pending appeal of his conviction for indecent assault 

and corruption of minors.

The Board first denied Roman parole in August 2003, 

following a hearing. In its decision, the Board considered 

Roman‟s version of the nature and circumstances surrounding 

his homicide offense,

1

his prior history of parole failure, and 

his unacceptable compliance with the sex offender treatment 

 

1

It appears from the record that Roman continued to maintain 

that the homicides for which he was convicted in 1977 were 

acts of self-defense.
5

program prescribed to him in his sentencing. The Board 

stated that in Roman‟s next review it would consider 

“whether [Roman had] participated in/successfully completed 

a treatment program for: sex offenders” and whether prison 

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

The Board denied Roman parole a second time in 

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

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

prison sex offenders program as one of the bases for its 

decision, and again stated that it would consider whether he 

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

eligibility for parole.

Roman sought review of these parole denials in the 

Commonwealth Court of Pennsylvania, requesting a writ of 

mandamus directing the Board to “correct [its] misapplication 

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

finding that the Board had acted within the scope of its 

discretion. Roman v. Pennsylvania Board of Probation and 

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

The Pennsylvania Supreme Court affirmed that decision the 

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

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

Amendment claim during either of those proceedings.

In November 2005, Roman filed a pro se petition for 

habeas corpus in the Eastern District of Pennsylvania, arguing 

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

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

participate in a sex offender program before considering his 

parole application of the 1977 conviction in violation of the 

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

petition, Roman‟s appeal of his 2001 conviction for indecent 
6

assault and corruption of minors was still pending in state 

court.

2

Roman‟s petition was assigned to a Magistrate Judge, 

who issued a Report and Recommendation stating that 

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

required under federal habeas law. In the alternative, he 

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

Magistrate Judge interpreted Roman‟s claim as an ex post 

facto challenge and determined that, because Roman could 

not demonstrate that a change in the law governing 

Pennsylvania parole decisions had affected his sentence, his 

claim failed. 

 

2

 Roman‟s appeal of his 2001 state court conviction for 

indecent assault and corruption of a minor was denied in 

February 2006, rendering his conviction final. No party has 

suggested that this renders this case moot. Indeed, Roman 

remains incarcerated and subject to the demands of the Board. 

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

actions were unconstitutional and affected the length of time 

he was required to remain incarcerated for his first sentence 

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

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

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

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

inmate who has been unconditionally released from prison 

must demonstrate collateral consequences continuing from 

the constitutional injury, lest her claim be rendered moot). 
7

In response, Roman filed an objection to the 

Magistrate Judge‟s Report and Recommendation, more fully 

articulating that the conditions on his parole were problematic 

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

which requires admission of the crime as a stepping stone for 

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

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

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

waive those rights because he had yet to exhaust his 

challenges to his 2001 state court conviction.

Notwithstanding Roman‟s objections, the District Court

adopted the Magistrate Judge‟s Report and Recommendation 

and denied Roman‟s habeas claim.

In May 2007, this Court issued a certificate of 

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

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

denial of parole based on his failure to complete the sex 

offender treatment program violates his Fifth Amendment 

right against self-incrimination with respect to a conviction 

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

violated [Roman‟s] right against self incrimination with 

respect to the conviction that was not final.”

II.

The District Court exercised jurisdiction over Roman‟s 

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

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

Where, as here, a district court dismisses a habeas 

petition without first holding an evidentiary hearing, our 

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

(3d Cir. 2010). We review de novo all questions of law, and 
8

consider all factual allegations in a light most favorable to the 

petitioner to determine whether he has stated a cognizable 

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

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

evidentiary hearing is necessary to develop the facts before 

us. Id.

III.

A. Exhaustion Requirement

A federal court may not review a petition for writ of 

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

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

shows that doing so would be futile because state procedures 

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

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

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

futility exception to the exhaustion requirement, a petitioner 

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

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

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

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

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

find that some state process is available to address those 

claims, notions of federalism and comity require that we 

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

Alternatively, we may bypass the exhaustion issue 

altogether should we decide that the petitioner‟s habeas claim 

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

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

notwithstanding the failure of the applicant to exhaust the 

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

Horn, 504 F.3d 416, 427 (3d Cir. 2007).
9

Roman now argues that the exhaustion requirement is 

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

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

for claims challenging the constitutionality of a denial of 

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

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

argues that DeFoy no longer controls because Commonwealth 

Courts since that decision have adjudicated mandamus 

actions involving parole denials by the Board and have 

considered constitutional claims other than ex post facto

claims.

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

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

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

 

3

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

a district court dismissed the petitioner‟s Fifth Amendment 

claims against the parole board as unexhausted because 

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

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

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

permit prisoners challenging the denial of parole to seek writs 

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

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

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

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

would generally constitute a discretionary matter that is not 

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

Pennsylvania state prisoner challenging the denial of parole 

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

satisfy the dictates of exhaustion.” Id. at 444.
10

any shift in Pennsylvania law, we cannot comfortably say that 

it is clear enough to alter our decision in DeFoy.

4

 

B. Fifth Amendment Claim

The Fifth Amendment, as incorporated and made 

applicable to the states through the Fourteenth Amendment, 

provides that no person “shall be compelled in any criminal 

case to be a witness against himself.” U.S. CONST. amend. V. 

Though a prisoner already may have been convicted and 

imprisoned for an offense, the Fifth Amendment still applies 

to ensure that the individual not be compelled to bear witness 

against himself or to divulge information that might 

 

4

 The availability of Pennsylvania mandamus review for 

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

facto grounds remains unsettled. Though certain courts since 

DeFoy have demonstrated some willingness to consider 

constitutional claims outside the ex post facto context, none 

have addressed or acknowledged the language that drove our 

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

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

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

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

Amendment in context of sexual offender rehabilitation 

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

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

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

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

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

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

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

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

considered the claims before it at all).
11

incriminate him in future criminal proceedings. Minnesota v. 

Murphy, 465 U.S. 420, 426 (1984). An individual trying to 

make out a Fifth Amendment claim must demonstrate two 

key elements: compulsion and use. Id.

Roman argues that the Board‟s decisions requiring that 

he participate in the sex offender rehabilitation program 

violated his right against self-incrimination under the Fifth 

Amendment, since the Board effectively compelled him to 

choose between admitting his guilt for a sexual offense—a 

requirement for admission to the program—and relinquishing 

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

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

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

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

The State responds that Roman has not demonstrated a Fifth 

Amendment violation because the consequences of his refusal 

to participate in the program are not severe enough to 

constitute compulsion under the Fifth Amendment. Further, 

it argues that Roman is unable to show that his statements 

were or would have been used against him in a criminal 

proceeding, had he decided to participate in the program. 

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

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

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

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

several reasons for denying him parole, including his history 

of previous failures under supervised release. However, even 

assuming arguendo that the Board‟s refusal was the sole 

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

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

within the meaning of the Fifth Amendment.
12

Though the privilege against self-incrimination “does 

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

a “broad range of choices that might infringe constitutional 

rights in a free society fall within the expected conditions of 

confinement of those who have suffered a lawful conviction.” 

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

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

prisoner‟s liberties are already curtailed as a necessary and 

essential element of his incarceration, that prisoner faces 

unique challenges in demonstrating that a particular penalty 

or punishment inflicts a constitutional injury upon him. In the 

context of the Fifth Amendment, specifically, compulsion is 

the linchpin of any such claim. 

Where, as here, a prisoner argues that the 

consequences of his refusal to participate in a prison program 

that requires him to admit guilt violate the Fifth Amendment, 

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

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

compulsion that encumbers” that prisoner‟s right against selfincrimination. Id. at 35. Though drawing the distinction 

between a lawful condition of confinement and a condition 

that impermissibly encumbers a prisoner‟s rights can be 

challenging, it is a distinction that rests on the difference 

between merely pressuring or encouraging an inmate to 

incriminate himself, and compelling him to do so through the 

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

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

The Supreme Court outlined the contours of this 

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

Lile, a convicted sex offender, brought a Fifth Amendment 

challenge to Kansas‟ compulsory sex offender program, 

which required him to admit guilt for his crime of 
13

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

Under the Kansas program, any such admissions were not 

privileged and could be used in future criminal proceedings. 

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

all along that the encounter was consensual, refused to admit 

guilt and faced losing substantial prison privileges as a result. 

In particular, prison officials threatened to restrict his 

visitation rights, earnings, prison job opportunities, and 

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

would be moved to a maximum-security prison, which 

necessarily entailed less comfortable living conditions and 

housed more dangerous inmates, in order to make room for 

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

at 30-31.

In a fractured opinion, a plurality of the Court agreed 

that Lile—though faced with a difficult choice between 

asserting his right to remain silent and receiving the benefits 

and comforts of the prison conditions then afforded to him—

had failed to demonstrate that the reduction in his prison 

privileges rose to the level of compulsion proscribed under 

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

authored by Justice Kennedy, distinguished the punishment 

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

which the Court had previously held that consequences 

involving the loss of employment or professional reputation 

were sufficient to constitute compulsion under the Fifth 

Amendment. Those cases, the plurality wrote, involved free 

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

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

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

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

plurality applied a very stringent test that required that the 
14

inmate demonstrate the imposition of “atypical and 

significant hardships on [inmates] in relation to the ordinary 

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

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

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

instances not served by a legitimate penal interest, where the 

punishment actually lengthened a prisoner‟s sentence or 

altogether denied him eligibility for good-time credits or 

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

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

much broader test which recognized that the threat of 

revoking privileges was sufficient to trigger the Fifth 

Amendment, absent some grant of immunity assuring that the 

statements could not be used against the prisoner. McKune, 

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

Justice O‟Connor, whose opinion controls,5concurred 

on narrow grounds, agreeing with the plurality‟s judgment 

that Lile‟s Fifth Amendment claim failed but agreeing with 

the dissent that “the Fifth Amendment compulsion standard is 

broader than the „atypical and significant hardship‟ standard 

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

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

 

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

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

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

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

those Members who concurred in the judgments on the 

narrowest grounds.” (internal quotation marks and citations 

omitted)).
15

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

for determining what degree of penalty amounts to 

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

proper inquiry should “recognize that it is generally 

acceptable to impose the risk of punishment, however great, 

so long as the actual imposition of such punishment is 

accomplished through a fair criminal process” and so long as 

it stops short of punishments such as “longer incarceration or 

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

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

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

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

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

incriminate himself or herself . . . . Not all pressure 

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

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

in the context of voluntary clemency hearings that “it has 

never been suggested that such pressures constitute 

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

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

faced with “the making of difficult judgments as to which 

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

always forbid requiring him to choose”). 

Though the prison in McKune threatened to restrict

Lile‟s privileges and transfer him to less comfortable 

accommodations, Justice O‟Connor found it instructive that 

he would still be provided with basic necessities—food and 

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

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

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

to incriminate himself were more restrictive than the same 

sanctions applied to discipline any inmates who refused to 
16

comply with any number of prison requirements, or that that 

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

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

subjected him to such conditions, the consequences of his 

refusal to speak were punishments within the scope of his 

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

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

(distinguishing penalties imposed upon Lile from the more

severe penalties inflicted on individuals outside the context of 

the prison environment). 

There is no precedent in our Circuit that interprets or 

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

McKune, several of our sister circuits have confronted cases 

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

interpreting and applying that decision to the facts before 

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

articulate a standard that governs these cases, the results have 

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

noting that McKune provided “no clear guideposts,” 

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

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

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

consistent with that decision, and evaluated whether the 

burden imposed by the sex offender treatment program was 

 

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

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

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

solely on comparison with facts in McKune in dismissing a 

similar case levied against the same rehabilitation program 

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

(10th Cir. 2002) (same).
17

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

availability of other, less burdensome means of achieving that 

interest. Id. at 5 (dismissing Fifth Amendment claim 

involving New Hampshire‟s sex offender treatment program). 

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

stated that “the status of the person claiming the Fifth 

Amendment privilege” or the “severity of the penalty 

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

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

purpose in imposing the penalty and on the extent to which 

the penalty went beyond that already imposed by fair criminal 

process. Id. at 1137 (finding Fifth Amendment violation 

where District Court actually lengthened term of 

probationer‟s supervised release based on his refusal to 

submit to repeat polygraph tests asking whether he had 

engaged in prohibited sexual conduct). 

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

circuits and because Justice O‟Connor‟s controlling opinion 

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

tasked with the responsibility of distilling the core principles 

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

abundantly clear: 

First, a state program that requires an inmate to 

incriminate himself solely for the purposes of gathering 

incriminating statements against him will not pass 

constitutional muster. While the conditions inherent to 

imprisonment may alter our definition and application of 

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

control over an inmate solely as “mere subterfuge for the 

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

conduct that the Fifth Amendment is intended to prohibit. 

McKune, 536 U.S. at 34; id. at 41 (discussing “elaborate 
18

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

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

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

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

interest in rehabilitation is persuasive, but arguing that the 

state‟s need does not justify overriding Fifth Amendment 

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

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

some independent, legitimate state purpose, such as 

rehabilitating inmates convicted of certain crimes. The more 

attenuated the relationship between the two, the greater our 

concern that the penalty is indicative of a state attempt to 

wield its power in an impermissible manner. 

Second, it is undisputed by the plurality, the 

concurrence and the dissent that, in the event the penalty 

imposed does amount to an atypical and significant hardship 

on the petitioner‟s prison conditions, that penalty is 

sufficiently compelling to constitute a Fifth Amendment 

violation. While the plurality opinion treats this standard as 

the minimum showing necessary under the Fifth Amendment, 

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

more flexible, permissive standard, albeit to varying degrees. 

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

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

prisoner who demonstrates that the consequences of his 

refusal to incriminate himself inflict an atypical and 

significant hardship on the conditions of his incarceration has 

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

Fifth Amendment. 

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

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

just short of those that amount to atypical and significant 
19

hardships, which, given the context, are sufficient to 

constitute compulsion. The distinction between an 

impermissible penalty and a mere consequence requires that 

we examine the penalty assessed in light of the conditions and 

restrictions already incumbent on the confinement itself. Id.

at 51 (O‟Connor, J., concurring).

Thus, under McKune, those penalties that merely alter 

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

within the context of his confinement, but that otherwise 

remain within the permissible bounds of the inmate‟s 

prescribed sentence, are differences in measure alone and thus 

do not amount to compulsion under the Fifth Amendment. 

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

mere “unpleasant” and are different in kind than those 

conditions of confinement imposed on all prisoners—that 

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

threaten his bodily safety, or that impose additional 

punishment beyond that already imposed by fair judicial 

process—constitute impermissible compulsion under the Fifth 

Amendment. Id. at 51.

In light of this analysis, Roman‟s Fifth Amendment 

claim fails because the consequence he faces—the repeat 

denial of parole for refusing to participate in the sex offender 

rehabilitation program—does not rise to the level of 

compulsion necessary to violate the Fifth Amendment. 

Roman has no right or entitlement to parole under 

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

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

have the actual conditions of his imprisonment been altered. 

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

defendant was “sentenced to a longer prison term for refusing 
20

to comply with [the rehabilitation program‟s] disclosure 

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

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

silent and thereby refusing to participate in the sex offender 

rehabilitation program—has forfeited his opportunity for 

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

were imposed following full and fair criminal proceedings. 

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

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

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

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

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

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

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

of being granted clemency does not make the interview 

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

severity: An inmate in Pennsylvania may be denied parole 

for many forms of misbehavior or violation of prison policies, 

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

further the state‟s legitimate interest in rehabilitation. See

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

a distinction between typical sanctions and those sanctions so 

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

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

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

compel testimony” relied on by previous cases in fleshing out 

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

Board refused Roman parole, that consequence flowed 

naturally from his decision not to participate in an established 

prison program designed to further Pennsylvania‟s legitimate 

interest in rehabilitating inmates, such as Roman, who have 

been convicted of sexual offenses. Id.; see also id. at 37-38 
21

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

compelling inmate participation in rehabilitative programs); 

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

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

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

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

an incentive for participation in such rehabilitative 

programs—here, the opportunity for early release—without 

obligating itself to reward an inmate who chooses not to 

participate because he considers that reward outweighed by 

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

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

prisoners can refuse to participate in the treatment program, 

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

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

criminal charges should be dismissed, but this does not make 

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

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

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

presented with an exceedingly difficult choice, the law is 

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

therefore hold that Roman‟s Fifth Amendment claim fails on 

the merits.

IV. 

For the reasons stated above, we will affirm the 

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