UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JAMES GIBSON, :

:

Petitioner : No. 4:CV-05-1804

:

vs. : (Complaint Filed 9/06/05) 

:

PENNSYLVANIA BOARD OF, : (Judge Muir)

PROBATION AND PAROLE, :

:

Respondent :

ORDER

April 4, 2006

James Gibson, (“Gibson”), an inmate confined at the

Mahanoy State Correctional Institution, Frackville,

Pennsylvania, filed this petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. (Doc. No. 1). Gibson asserts

that he has been denied parole in violation of the Due

Process and Equal Protection Clauses of the Fourteenth

Amendments. He also asserts that the denial of his parole

violated the First, Fifth and Eighth Amendment rights. For

the reasons that follow, the petition for writ of habeas

corpus will be denied. 

Background

On August 3, 1998, Gibson pled guilty to voluntary

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manslaughter. (Doc. 7, Sentence Status Summary). On October

5, 1998, he was sentenced to a term of imprisonment of seven

years, six months, to fifteen years. Id. Gibson's minimum

sentence expired on March 23, 2005 and his maximum sentence

expires on September 23, 2012. Id. 

Gibson was first considered for parole on February 10,

2005. (Doc. No. 7, Notice of Board Decision). The Board

denied parole, stating reasons for the denial as follows: (1)

Gibson's version of the nature and circumstances of the

offense committed; (2) his prior history of supervision

failure; and (3) his institutional behavior, including

reported misconducts or CCC failure. Id. Gibson's next

parole review was set for December, 2005, or later. The

Board stated that in the next interview, it would consider

(1) whether Gibson had received a favorable recommendation

for parole from the Department of Corrections; and (2)

whether he maintained a clear conduct record and completed

the Department of Corrections prescriptive programs. Id. 

On September 6, 2005, Gibson filed the instant petition

for writ of habeas corpus in which he challenges the Board’s

adverse decision of its review of his parole. (Doc. No. 1).

He raises the following grounds for relief:

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1. Denial of parole based on violation of the

due process clause of the fifth and

fourteenth amendment, and eighth amendment

and equal protection. 

2. Denial of parole based on violation of

first amendment. 

(Doc. No. 1). 

Specifically, petitioner claims that the Parole Board

“arbitrarily and capriciously abused its discretion when

using a file which doesn't exist for the purpose of

determining whether to grant or deny parole, the proof of

that matter is the old parole number #5136-R which the

plaintiff had successfully completed parole under while

plaintiff was living within society under the supervision of

the Parole Board.” (Doc. No. 2, Brief in Support of habeas

petition). Gibson believes that “what the Parole Board

should have done in this case when making a determination to

grant or deny parole, is render a decision based on

plaintiff's current offense which it had not considered at

all.” Id. Thus, petitioner believes as a result, the Board

violated his right to due process in violation of the Fifth

and Fourteenth Amendments. 

Petitioner's next argument is that he was “coerc[ed]”

into complying with the Board's “demand that [he] write a

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version of the nature and circumstances of his offense.” Id.

Petitioner claims that “even though [he] complied, he was

still denied parole because the Pennsylvania Board of

Probation and Parole did not accept or appreciate [his]

version of the offense.” Id. Gibson believes that this is

a violation of his Fifth and Eighth Amendment rights, as well

as a violation of the Fourteenth Amendment's Equal

Protection. Id. Thus, Gibson seeks “immediate release on

parole.” Id. 

Subsequent to the filing of the petition, on January 4,

2006, the Board conducted a second parole review. (Doc. No.

13, Notice of Board Decision). The decision was to deny

Gibson parole. The Board's reasons to deny parole included

(1) Gibson's need to participate in and complete additional

institutional programs; and (2) his interview with the

hearing examiner and/or Board Member. Gibson's next parole

review is set for December, 2006, or later. The Board

advised Gibson that in the next review, it would consider:

(1) whether he participated in a treatment program for sex

offenders; (2) whether he maintained a favorable

recommendation for parole from the Department of Corrections;

(2) whether he maintained a clear conduct record and

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completed the Department of Corrections' prescriptive

programs; and (3) his efforts to secure an approved home

plan. Id. 

Discussion

It is well-settled that "there is no constitutional or

inherent right of a convicted person to be conditionally

released before the expiration of a valid sentence."

Greenholtz vs. Inmates of Nebraska Penal & Correctional

Complex, 442 U.S. 1, 7 (1979). Furthermore, the Pennsylvania

parole statute does not create a liberty interest in the

right to be paroled. Rodgers vs. Parole Agent SCIFrackville, Wech, 916 F. Supp 474, 476-77 (E.D. Pa. 1996);

McCrery vs. Mark, 823 F. Supp. 288, 294 (E.D. Pa. 1993);

Wright vs. Cuyler, 517 F. Supp. 637 (E.D. Pa. 1981).

In Morrissey vs. Brewer, 408 U.S. 471, 489, the United

States Supreme Court addressed a habeas petition filed by a

state inmate who alleged that he had not received due process

during parole revocation procedures. The Court recognized

that a federal court should not upset a decision of a state

parole board unless the determination is based on

constitutionally impermissible reasons such as race, religion

or ethnicity or rendered in the absence of the following due

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process protections:

(a) written notice of the claimed violations of

parole; (b) disclosure to the parolee of evidence

against him; (c) opportunity to be heard in person

and to present witnesses and documentary evidence;

(d) the right to confront and cross-examine adverse

witnesses (unless the hearing officer specifically

finds good cause for not allowing confrontation);

(e) a 'neutral and detached' hearing body such as a

traditional parole board, members of which need not

be judicial officers or lawyers; and (f) a written

statement by the factfinder as to the evidence

relied on and reasons for revoking parole.

Id. at 488-89.

Similarly, our Court of Appeals in Block vs. Potter, 631

F.2d 233, 235 (3d Cir. 1980) ruled that a federal court's

review of a state parole board decision is limited to an

abuse of discretion inquiry. Specifically, relief is only

available if: (1) an applicant was arbitrarily denied parole

on the basis of impermissible reasons such as race, religion,

or political beliefs, and/or (2) the parole board failed to

apply appropriate, rational criteria in reaching its

determination. Id. at 236.

To the extent that petitioner claims that he has a right

to parole, he has no liberty interest in the anticipation of

parole under any circumstances. In Sandin vs. Conner, 515

U.S. 472, 480-84(1995), the Supreme Court held that a liberty

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interest is not created merely because a regulation limits

the discretion of prison officials. Rather, courts should

focus on the nature of the deprivation itself and the

relevant inquiry is whether it was "the type of atypical,

significant deprivation in which a state might conceivably

create a liberty interest." Id. at 486; see also Griffin vs.

Vaughn, 112 F.3d 703 (3d Cir. 1997). It has been repeatedly

recognized that Pennsylvania state law does not confer on

inmates a legally protected interest in parole eligibility.

Rodgers, 916 F. Supp. at 476-77; McCrery, 523 F. Supp. at

294. Thus, it is apparent to this court that the denial of

parole to a Pennsylvania state inmate is not the type of

significant and atypical hardship contemplated by the Supreme

Court in Sandin.

With respect to petitioner's argument that the Board

incorrectly considered his prior history of supervision when

making its decision to parole him, Section 19 of the Parole

Act mandates that the Board consider, in relevant part, “the

general character and background of the prisoner...[as well

as the inmate's] complete criminal record” before deciding

whether to grant or deny an inmate parole. 61 P.S. § 331.19.

As such, the Board has a statutory duty to consider Gibson's

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prior history of supervision failure throughout his lifetime,

and not just during his current offense, prior to making its

decision to grant or deny parole. 

To the extent that Gibson claims that the Board violated

his right to equal protection, the Fourteenth Amendment of

the Constitution provides in pertinent part: "No State shall

. . . deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws." The Court

of Appeals for the Third Circuit has observed that the equal

protection clause "is not a command that all persons be

treated alike but, rather, 'a direction that all persons

similarly situated should be treated alike.'" Artway vs.

Attorney Gen., 81 F.3d 1235, 1267 (3d Cir. 1996) (quoting

City of Cleburne vs. Cleburne Living Center, 473 U.S. 432,

439 (1985)); see also Kuhar vs. Greensburg-Salem Sch. Dist.,

616 F.2d 676, 677 n.1 (3d Cir. 1980) ("An equal protection

claim arises when an individual contends that he or she is

receiving different treatment from that received by other

individuals similarly situated.").

It is well-settled that a litigant in order to establish

a viable equal protection claim must show an intentional or

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purposeful discrimination. Snowden vs. Hughes, 321 U.S. 1, 8

(1944); Wilson vs. Schillinger, 761 F.2d 921, 929 (3d Cir.

1985), cert. denied, 475 U.S. 1096 (1986); E & T Realty vs.

Strickland, 830 F.2d 1107, 1113-14 (11th Cir. 1987), cert.

denied, 485 U.S. 961 (1988). This "state of mind"

requirement applies equally to claims involving (1)

discrimination on the basis of race, religion, gender,

alienage or national origin, (2) the violation of fundamental

rights and (3) classifications based on social or economic

factors. See, e.g., Britton vs. City of Erie, 933 F. Supp.

1261, 1266 (W.D. Pa. 1995), aff'd, 100 F.3d 946 (3d Cir.

1996); Adams vs. McAllister, 798 F. Supp. 242, 245 (M.D.

Pa.), aff'd, 972 F.2d 1330 (3d Cir. 1992).

When making the determination as to whether a particular

inmate should be granted parole, the Board is required to

consider: 

the nature and circumstances of the offense

committed, any recommendations made by the trial

judge and prosecuting attorney, the general

character and background of the prisoner,

[and]...the notes of testimony of the sentencing

hearing, if any, together with such additional

information regarding the nature and circumstances

of the offense committed for which sentence was

imposed as may be available. The board shall

further cause the conduct of the person while in

prison and his physical, mental and behavior

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condition and history, his history of family

violence and his complete criminal record, as far as

the same may be known, to be reported and

investigated. 

61 P.S. § 331.19. Both of Gibson's parole denials cited as

reasons for the denial (1)Gibson's version of the nature and

circumstances of the offense committed; (2) his prior history

of supervision failures; and (3) his institutional behavior,

including reported misconducts, as the reasons he was refused

parole. (See Doc. Nos. 7, 13, Notices of Board Decision).

Additionally, the Board informed petitioner what it would

specifically consider at his next parole interview. Id.

Thus, Gibson has failed to allege facts from which it can be

concluded that the Board engaged in intentional or purposeful

discrimination or that he was treated differently than

similarly situated individuals on the basis of his race or

some other impermissible reason. 

Finally, to the extent that Gibson argues that the

Board's actions violated his First, Fifth and Eighth

amendment rights, these claims do not “challenge the very

fact or duration of the confinement itself.” Leamer vs.

Fauver, 288 F.3d 532 (3d Cir. 2002). Therefore, they are

inappropriately raised in a habeas corpus petition.

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Constitutional claims that challenge the conditions of a

prisoner’s confinement may be brought pursuant to § 1983 of

Title 42 in the first instance. See Nelson vs. Campbell, 541

U.S. 637, 643 (2004); see also Preiser vs. Rodriguez, 411

U.S. 475, 498-499. Thus, these claims will be dismissed.

IT IS HEREBY ORDERED THAT:

1. The petition for writ of habeas corpus

(Doc. No. 1). is DENIED.

2. Petitioner's motion for leave to supplement his

habeas petition (Doc. No. 12) is DISMISSED as moot.

3. The Clerk of Court is directed to CLOSE

this case.

4. There is no basis for the issuance of a certificate

of appealability.

s/Malcolm Muir 

MUIR

United States District Judge

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