Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation present no new 1

issues or arguments. He objects to that part of the Report and Recommendation addressed to the

untimeliness of federal habeas review of his convictions on the ground that he is entitled to equitable

tolling of the statute of limitations. In his Petition, Zuniga asserted only that he was innocent due

to his crime of conviction having never been charged in the indictment. Judge Angell correctly

concluded that this argument is inadequate to equitably toll the statute of limitations. See Sweger

v. Chesney, 294 F.3d 506, 522-23 (3d Cir. 2002) (holding that actual innocence means factual

innocence, not mere legal insufficiency). Zuniga’s Objection to this finding is that he is both

factually innocent and legally innocent, and thus entitled to equitable tolling. We overrule this

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

HUGO ZUNIGA : CIVIL ACTION

:

:

v. :

:

:

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al. : NO. 05-5517

O R D E R

AND NOW, this day of March, 2007, upon careful and independent consideration of the

Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 (Doc. No. 1) and all

attendant and responsive briefing, and after review of the Report and Recommendation of United

States Magistrate Judge M. Faith Angell (Doc. No. 29), and consideration of Petitioner’s Objections

to the Magistrate Judge’s Report and Recommendation (Doc. No. 34), and the responses thereto, IT

IS HEREBY ORDERED that:

1. Petitioner’s Objections are OVERRULED;

2. The Report and Recommendation of Magistrate Judge Angell is APPROVED and

ADOPTED ;

1

Case 2:05-cv-05517-JP Document 37 Filed 03/29/07 Page 1 of 4
Objection. The record clearly reflects that Zuniga never presented the issue of his factual innocence

to the state courts, neither has he supported his Objection with new reliable evidence that was not

presented at trial. See Schlup v. Delo, 513 U.S. 614, 623 (1998) (habeas petition asserting actual

innocence must present new reliable evidence not presented at trial). 

Petitioner next Objects to the recommendation that he can state no Due Process claim arising

from the manner in which the Pennsylvania Board of Probation and Parole considered, as part of its

parole determinations, that he failed to participate in prison sex offender therapy programs. We

overrule his Objections. As regards the procedural aspect of Zuniga’s Due Process claim, Judge

Angell correctly determined that an inmate has no liberty interest in the possibility of parole that is

protected by the Due Process Clause, see Greenholtz v. Inmates of Nebraska Penal and Correctional

Complex, 442 U.S. 1, 7 (1979), and that, while states may create liberty interests protected by the

Due Process Clause, Pennsylvania has created no such interest in the grant or denial of parole.

Bonilla v. Vaughn, No. 97-7440, 1998 WL 480833 at *8 (E.D. Pa. Aug. 14, 1998) (holding that

because parole is discretionary, Pennsylvania prisoners have no protected liberty interest in the grant

of parole). 

As regards the substantive aspect of Zuniga’s Due Process claim, there was no error in the

Magistrate Judge’s recommendation that Zuniga has not established that the decision to deny his

parole was arbitrary or founded on impermissible criteria. Although couched as a substantive due

process claim, Zuniga is essentially making a Fifth Amendment claim that requiring him to admit

his crime to participate in treatment, and making that participation of condition of parole, constitutes

self-incrimination. Judge Angell correctly rejected Zuniga’s assertion that the Board’s requirement

that he participate in sex offender treatment programs affected a fundemental liberty interest because

participation in the program was voluntary for persons convicted of sex crimes prior to the passage

of 42 Pa. Cons. Stat. Ann. § 9718.1. Thus, there were no adverse consequences arising from

Zuniga’s choice not to participate. See McKune v. Lile, 536 U.S. 24, 35 (2002) (rejecting claims

similar to Petitioner’s, holding that the adverse consequences faced by a state prisoner for refusing

to admit guilt before participating in a sex offender treatment program “does not compel prisoners

to incriminate themselves in violation of the Constitution”). As Zuniga’s refusal to participate did

not extend his sentence or automatically deny him parole, and the record is clear that his failure to

participate was only one factor of several that the Board cited in denying his parole, the treatment

program’s requirement that prisoners admit the nature and circumstances of their sex offenses did

not lead to an arbitrary parole decision.

Neither was consideration of his failure to participate a violation of the Ex Post Facto Clause.

See Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282, 284 (3d Cir. 2005)

(holding that a petitioner must show both a retroactive change in law or policy and that the change

caused the individual a disadvantage by creating a significant risk of increasing his punishment).

The Magistrate Judge’s conclusion that Zuniga could not meet the second prong of the test because

the sex offender program requirement was made a mandatory condition of parole only for inmates

whose offenses were committed after the effective date of the act, see 42 Pa. Cons. Stat. Ann. §

9718.1 (making act effective 60 days after passage), was correct. Although the Board erroneously

referred to § 9718.1 as applying to Zuniga in its July 2003 parole determination, there was no error

in the Magistrate Judge’s conclusion that Zuniga was not prejudiced by the error because § 9718.1(a)

2

Case 2:05-cv-05517-JP Document 37 Filed 03/29/07 Page 2 of 4
was one ofseveral reasons given for the July 2003 parole denial. In its subsequent parole decisions,

the Board did not reference § 9718.1.

Zuniga’s Objection to this portion of the opinion is overruled. He argues that his sentencing

judge did not make participation in a sex offender program a specific requirement of parole, and the

Board could not base its parole determination on a factor not ordered by the sentencing judge. While

Zuniga is correct that one of the factors the Board can consider in making its determination is “any

recommendations made by the trial judge and prosecuting attorney,” the Board also has the statutory

prerogative under 61 Pa. Cons. Stat. Ann. § 331.19 to “consider the nature and circumstances of the

offense committed” and “the general character and background of the prisoner.” Thus, whether or

not the sentencing judge made a recommendation concerning sex offender treatment does not bind

the hands of the Board in its parole determination.

Finally, Zuniga’s claims that the 1996 amendments to the Pennsylvania Parole Act have

resulted in the Board applying stricter standards to his parole decision due to the nature of his crimes,

and that this retroactive change is unconstitutional, were properly rejected by Judge Angell. She

determined that the Board’s decisions were based on numerous factors cognizable under the old

parole standard, including Zuniga’s denial of the nature and circumstances of his crimes, his failure

to accept responsibility therefor, his lack of remorse, his interview with the hearing examiner, and

his unacceptable compliance with institutional programs. Having independently reviewed Zuniga’s

submissions, we find that he has made no attempt to demonstrate how the 1996 amendment

disadvantaged him by creating a significant risk of increasing his punishment. See Garner v. Jones,

529 U.S. 244, 255 (2000) (holding that to be eligible for habeas corpus based on a violation of the

Ex Post Facto Clause, a petitioner must show both a retroactive change in law or policy and that this

change caused individual disadvantage by creating a significant risk of increasing his punishment)

and Calif. Dep’t. of Corr. v. Morales, 514 U.S. 499, 510 n. 6 (1995) (holding that a prisoner carries

“the ultimate burden of establishing that the measure of punishment itself has changed,” and “must

show that as applied to his own sentence the law creates a significant risk of increasing his

punishment”). Accordingly, there was no Ex Post Facto Clause violation arising from the Board’s

consideration of his failure to participate in prison sex offender programs as part of its decision to

deny Zuniga’s parole.

3

3. The Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254 is

DENIED;

4. Since the Petitioner has failed to make a substantial showing of the denial of a

constitutional right, the Court declines to issue a certificate of appealability under 28

U.S.C. § 2253(c)(2); and

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4

5. The Clerk shall CLOSE this case statistically.

BY THE COURT:

/s/ John R. Padova 

John R. Padova, J.

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