### 1996 D e c i sion s O p inion s of the U nit e d

S t at e s C our t of Appe al s for the Thir d C ir c uit

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# B urk ett v . Lo ve

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D ocke t 95-3525

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. e du/thir dc ir c uit_1996/99UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 95-3525

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WAYNE PAUL BURKETT, Appellant

v.

WILLIAM LOVE, Superintendent, et al., Answering Respondent BLAIR COUNTY DIS TRICT ATTORNEY, Appellees

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APPEAL FROM THE UNITED STATES DISTRICT C OURT

FOR THE WESTERN DISTRICT OF PENNSYLVAN IA (D.C. No. 88-cv-01397)

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Argued April 30, 1996

Before: STAPLETON, SCIRICA, and WEIS, Circui t Judges

Filed July 12, l996

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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

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WEIS, Circuit Judge. In this case, a state prisoner alleges tha t he was denied parole in retaliation for the successful pur suit 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 conc lude that petitioner has failed to exhaust state remedies, an d in addition, that some uncertainty exists as to the proper state procedure to address the issue that the prisoner raises, we rema nd 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 Novem ber 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, in voluntary deviate sexual intercourse, terroristic threats, un lawful restraint, indecent exposure, reckless endangerment , indecent assault, and aggravated assault, docketed in 1981 a t No. 161. A third conviction, entered on January 28, 1983 for a ttempted rape, terroristic threats, assault, and reckless endanger ment was
docketed in 1982 at No. 284. In an earlier proceeding, we granted habea s corpus relief resulting in the vacation of the convictions at Nos. 140/141 and 161 because of inordinate delays in sen tencing. SeeBurkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). In Burke tt v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991), we held that the sentence imposed at No. 284 should be reduced becau se of delay.
After another round of orders from the dis trict court and this Court, the state judge denied Burkett's mo tion for
recusal and reduced the sentence in accordance with our earlier order. Petitioner is presently serving a term of 1 2-3/4 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 othe r reasons, "very high assaultive behavior potential" and "unfa vorable recommendation from district attorney and sentencin g judge." The Board rejected petitioner's request fo r reconsideration, stating: "Be advised that what th e 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 Parol e, 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 co urt dismissed the petition without prejudice and appointed new co unsel with instructions to file an amended petition.In June 1995, Burkett initiated the presen t matter by

filing a document in the district court entitled "M otion 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 redu ced sentence, as discussed in our opinion at 951 F.2d 1433.) In this "motion," Burkett alleged that the Commonwealth of Pennsylvan ia had denied him parole in vindictive retaliation for his succes s in the earlier federal habeas corpus actions he had presse d in the
district court and our Court. The district court denied the motion, find ing 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 reason s for its action. Further, the court stated that the respons es of the district attorney and the sentencing judge were pro per and nonvindictive. In addition, the court concluded that Burkett had
failed to exhaust his administrative remedies. Burkett has appealed, contending that no c orrective state process exists and therefore the district cou rt should have conducted an evidentiary hearing and allowed discov ery.

I. Appellate Jurisdiction
Burkett's motion in the district court was filed under
the docket number of an earlier case. It should ha ve been filed under a separate docket number rather than as a con tinuation of the previous action. However, because the district court and the parties have treated this case as a new petition fo r a writ of habeas corpus, we will do likewise. The district c ourt's order disposing of the matter is final as a practical mat ter 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 th e district court, 28 U.S.C.  2254(c) read: "An applicant shall
not be deemed to have exhausted the remedies availa ble 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." To ulson v. Beyer, 987 F.2d 984, 986 (3d Cir. 1993). Pursuing state remedies is not a mere formality, but serves the interests o f comity
between the state and federal courts. Gibson v. Sc heidemantel, 805 F.2d 135, 138 (3d Cir. 1986). After this appeal was taken, Congress enac ted the Antiterrorism and Effective Death Penalty Act of 19 96, Pub. L. No. 104-132, 110 Stat. 1214 (April 24, 1996), which revises theprocedures for habeas corpus proceedings. Section 104(1) of the

Act states that applications by persons in state cu stody "shall not be granted unless it appears that . . . the app licant has
exhausted the remedies available in the court of th e 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 t o exhaust
state remedies. Id. The 1996 statute also provides that if a s tate court has addressed the merits of a petitioner's claim, t he federal court shall not grant a writ of habeas corpus unles s the state decision was contrary to, or an unreasonable applic ation of, federal law, or was based on an unreasonable determ ination of the facts in light of the evidence presented in the sta te proceeding. Section 104(3). Applicants have the burden to rebu t a state's factual determinations by clear and convincing evid ence. Section 104(4). Section 104(4) also specifies the limited circumstances in which a federal court can hold an evidentiary he aring if the applicant has failed to develop the factual basis f or a claim in the state proceeding. In the somewhat unusual circ umstances here, we need not digress to determine the effect o f these provisions on this pending action, filed, as it was , before the
amendments were enacted.

III.
Does the State Lack Corrective Measure s?
Burkett contends that retaliation for his exercise of access to the federal courts violates his rights un der the United States Constitution, but that the state courts will not entertain his claim. He points to the Pennsylvania Commonwea lth Court's in banc decision in Reider v. Pennsylvania Bd. of Prob ation 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 add ition constituted cruel and unusual punishment. In an op inion dismissing the appeal, the Court reviewed a number of its earlier rulings that had reached differing results on its p ower to review
Parole Board decisions asserted to have been in vio lation 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 def inition of that word. The term "adjudication" excludes "any o rder based upon a proceeding . . . which involves . . . parole s." 2 Pa.

Con. Stat. Ann.  101. The Commonwealth Court concluded that "[b]y definition, therefore, Board action of denyin g parole is not an adjudication subject to judicial review." R eider, 514
A.2d. at 970. The Reider opinion acknowledged that the P ennsylvania Supreme Court in Bronson v. Pennsylvania Bd. of Pro bation and Parole, 421 A.2d 1021 (Pa. 1980) had held that a pr isoner could seek judicial review of a parole revocation. In di stinguishingBronson, 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 liber ty interest because the ruling returned a parolee to custody. In contrast, a prisoner denied parole is not at liberty but remain s in custody and thus his status remains unchanged. Following that reasoning, Reider held that under Pennsylvania law, a prisoner had "no constitutional ly protected liberty interest in the expectation of being [parol ed]." 514 A.2d at 971. "The mere possibility of parole affor ds 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 h olding to its logical extreme would allow the Board to refuse par ole 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 C ourt seem to indicate that it is having second thoughts about th e 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 imposit ion of conditions is a part of the parole decision, "consi stent 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 constituti onal rights." (emphasis added). See also McCaskill v. Pennsylvan ia Bd. of Probation and Parole, 631 A.2d 1092, 1094 n.2 (Pa. Commw. Ct. 1993) (judicial review of Parole Board's order incl udes 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 proce ss and equal protection violations do not establish "liberty int erest" and claims unreviewable); King v. Pennsylvania Bd. of P robation and Parole, 534 A.2d 150, 151 (Pa. Commw. Ct. 1987) (re taliatory 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. Sinderm ann, 408 U.S. 593, 597 (1972), that although a person may have no "right" to a valuable government benefit, and may be denied it f or any number of reasons, "there are some reasons upon which the government may not rely." We applied that principle in Block v. P otter, 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 pa role decisionsfounded on impermissible criteria." Moreover, "[a] legislative

grant of discretion does not amount to a license fo r arbitrary
behavior." Id. In Block, the Parole Board used race as on e of the bases for denying parole. The panel majority concl uded that in so doing, the agency violated substantive due proce ss in grounding its action on "constitutionally impermiss ible reasons." Id. at 236. The panel also concluded that the deni al of parole violated the prisoner's right to equal protection. "The equal protection clause forbids government bodies from ma king decisions on the basis of race, even if other factors were al so considered." Id. at 241. The dissenting judge in Block disagreed wi th the majority's finding of a liberty interest and declin ed to read Greenholtz as applicable to both substantive as wel l as procedural due process. However, the dissent concu rred with the majority's position on equal protection and said th at a discretionary parole system "does not give the stat e the unfettered right to deny parole on arbitrary and im permissible grounds." Id. at 244. Cases in other Courts of Appeals have been in agreement with Block's premise. See Candelaria v. Griffin, 6 41 F.2d 868, 870 (10th Cir. 1981) (denial of parole because pris oner was Hispanic states claim for violation of equal protec tion); Osborne v. Folmar, 735 F.2d 1316, 1317 (11th Cir. 1984) (pr isoner may challenge parole decisions on equal protection grou nds 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 reli gious discrimination suits against prison officials); Cla rk v. Georgia Pardons and Paroles Board, 915 F.2d 636, 639 (11th Cir. 1990) (retaliation for filing suit against prison officia ls for wrongful death of prisoner's brother). See also Ca in v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988) (retaliation fo r exercise of First Amendment rights). Several Courts of Appeals have addressed a nalogous retaliation claims in the prison setting, although not involving parole decisions. Adams v. James, 784 F.2d 1077, 1 080 (11th Cir. 1986), noted that the "unconstitutional conditions" doctrine applies in prisoner section 1983 cases. Accord Woo ds v. Edwards, 51 F.3d 577, 580 (5th Cir. 1995) ("It is settled th at prison officials cannot act against a prisoner for availin g himself of the courts and attempting to defend his constitutio nal rights"). In Burton v. Livingston, 791 F.2d 97 (8th Cir. 1986), the complaint alleged threats made by a prison guar d in retaliation for testimony given by the inmate in an other case. These facts supported a section 1983 claim for viol ation of the prisoner's "due-process and First Amendment right o f 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 den ied release on parole based on the exercise of his right of acc ess to thecourts alleges an impermissible and unconstitutiona l 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. I t is at least arguable, therefore, that Burkett's claim is not co ntrolled by Reider. However, the application of that case to o ther instances
of constitutional violations shows that the Commonw ealth 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 Bro nson explained that the state's constitution guarantees the right to an appeal from an administrative agency (including the Pennsy lvania Parole Board) to a court. 421 A.2d at 1024-25. Implement ing legislation designated the Commonwealth Court as th e appropriate court of record for agency review. 42 Pa. Cons. St at. Ann. 
763. Bronson concluded that the Commonwealth Court had jurisdiction over the appeal from a parole revocati on decision made by the Board. 421 A.2d at 1025-26. In its op inion, the state Supreme Court did not indicate in any way tha t Commonwealth Court would lack jurisdiction if the controversy ha d centered on denial, rather than revocation, of parole. As we read Bronson, therefore, it is reaso nable to assume that the Commonwealth Court has jurisdiction over appeals from a denial of parole based on constitutional gro unds 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 appea l to the
Commonwealth Court. One other procedural avenue appears open t o Burkett. Reider itself acknowledged that "mandamus is availa ble 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 appea l 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 appea l from a Board ruling to the Commonwealth Court. Id. at 914. We also consider whether Burkett may be ab le to proceed
in the state courts under the Post Conviction Relie f Act or by requesting a writ of habeas corpus. In 1988, Penns ylvania enacted the Post Conviction Relief Act. It provide s "the sole means of obtaining collateral relief and encompasse s all other common law and statutory remedies for the same purp ose . . . including habeas corpus and coram nobis." 42 Pa. C ons. 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 tota lly replaced the writ of habeas corpus. We note, however, that thePennsylvania 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 th ey did not commit and persons who are serving illegal sentence s. 42 Pa.

Cons. Stat. Ann.  9542. Petitioner here does not fall into either of those categories. Instead, he alleges th at he is unjustly incarcerated because of an unconstitutiona l denial of parole. He does not deny commission of the crime, nor in this petition does he contend that the sentence is illeg al. The Pennsylvania Supreme Court has not yet addressed the effect of the Act on habeas corpus, and so we a re required to predict what its ruling would be. Because of the s tate constitutional provisions prohibiting impairment of the right to a writ of habeas corpus, we would expect that in th e event that the Commonwealth Court cannot adjudicate this matte r, the state's highest court would permit a habeas corpus action i n the circumstances present here. Alternatively, we pred ict that the state's highest court would conclude that the petit ion 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' interpret ation of term of incarceration), the state Supreme Court held tha t where a prisoner did not mount a "direct or collateral atta ck on the conviction or sentence imposed by the trial court," the proper remedy was not under the Post Conviction Hearing Ac t (the predecessor statute), and "[c]onsequently, appellan t may resort to the writ of habeas corpus ad subjiciendum." Id. Similarly, in Commonwealth v. Maute, 397 A.2d 826, 829 (Pa. Su per. 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 Heari ng Act.
Those two cases were decided before the Po st Conviction Relief Act was enacted, but we believe the reasonin g in those opinions is sound and applicable to the current sta tute. It
follows that claims of unconstitutional violations not seeking to
set aside a sentence or a conviction are outside th e Post
Conviction Relief Act. We read Isabell, 467 A.2d at 1291, as perm itting a petition for habeas corpus relief in the circumstan ces here because Burkett is not making a direct or collatera l attack on his conviction or sentence. We recognize that in 1 944, the Supreme Court of Pennsylvania held that a parole de nial 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 t hat case and we need not resolve the conflict (if any) between i t and Isabell. Fundamentally, it is the role of the Pennsylvania c ourts to clarify the law of that state. It is enough for ou r purposes to note that, should the Commonwealth Court not have j urisdiction, either by appeal or mandamus, relief by habeas corp us has not been foreclosed by holdings of the state Supreme Co urt.It appears to us, therefore, that Burkett has available

three potential ways of attacking the denial of par ole in Pennsylvania courts -- appeal, mandamus, or habeas corpus. The
somewhat unsettled state law in this area is a fact or to consider in deciding whether we should proceed to the merits , rather than requiring Burkett to exhaust state remedies. Obvio usly, a ruling by the state Supreme Court or Commonwealth Court di scussing the scope of the Reider opinion and the proper channels for bringing such claims would be helpful in this frequently lit igated area of
state law. Clarification is highly desirable and coun sels in favor
of exhaustion of state remedies rather than resolut ion on the merits in the first instance by the district court. Failure to require resort to the state courts in these circums tances would
not be consistent with a sound exercise of discreti on. Moreover, we find some gaps in the record, such as the absenc e of the letters written to the Parole Board by the sentenci ng judge and the district attorney, that make us hesitant to add ress the merits of Burkett's petition at this stage. We emphasize that our holding does not exp ress any view as to the validity of Burkett's claim. We merely r ecognize that an allegation that parole was denied in retaliation for the successful exercise of the right of access to the c ourts states a cognizable claim for relief. Pennsylvania law provides that the Parole Board "shall, in all cases, consider" recommendations from distri ct 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 s ubmitted to the Board is not enough, in itself, to establish Bu rkett's claim.
He must show more. The determination of whether th ere was any retaliation, and whether that retaliation influence d the decision of the Parole Board, is a matter that must be addre ssed by the

state courts. Accordingly, we will remand this case to t he 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. Fo r the reasons

stated by the court and the dissent in Reider, I pr edict that the Supreme Court of Pennsylvania would hold that the C ommonwealth 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 aut horitative precedent. As the court properly concludes, the Po st Conviction Relief Act is not applicable. In addition, under c urrent Pennsylvania law, Burkett cannot seek review of a p arole denial in a state habeas corpus or mandamus proceeding.