IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JUSTIN M. CORLISS, :

:

Petitioner, : CIVIL NO. 4:CV-05-1817

:

v. : (Judge Jones) 

:

PENNSYLVANIA BOARD OF :

PROBATION AND PAROLE, et al., :

:

Respondents. :

ORDER

October 11, 2006

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Petitioner Justin M. Corliss (“Petitioner” or “Corliss”), an inmate at the State

Correctional Institution, Somerset, Pennsylvania, commenced the above-captioned

action by filing a pro se Petition for Writ of Habeas Corpus (doc. 1) pursuant to 28

U.S.C. § 2254. Petitioner challenges a decision of the Pennsylvania Board of

Probation and Parole (“Board”) to deny him parole. Specifically, Petitioner claims

that the Board's “refusal to recommend parole and to parole Petitioner in light of

exculpatory DNA evidence violated Petitioner's constitutional rights under the Eight

and Fourteenth Amendments,” as well as being “arbitrary and capricious, resulting in

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Petitioner's unlawful imprisonment.” (Rec. Doc. 1 at ¶ 9). A response and traverse

having been filed (doc. 12), the Petition is ripe for disposition. For the reasons that

follow, the Petition will be denied. 

STATEMENT OF FACTS:

On June 13, 1998, following a jury trial, Petitioner was convicted of 

aggravated indecent assault, statutory sexual assault, indecent assault, and corruption

of minors. On August 20, 1998, he was sentenced to serve four (4) to ten (10) years

on the aggravated indecent assault conviction and concurrent terms of incarceration on

the charges of sexual assault and corruption of minors. (Rec. Doc. 12, Ex. A). His

minimum sentence expired on July 13, 2002, and his maximum sentence expires on

July 13, 2008. Id.

Corliss was first considered for parole on April 30, 2002. (Rec. Doc. 12, Ex.

B). After an interview and a review of his file, the Board refused to grant parole,

determining that the fair administration of justice could not be achieved through his

release. Id. Rather, the Board ordered that he serve the unexpired maximum sentence,

or be reviewed earlier if he was recommended by the Department of Corrections staff. 

Id. The Board further stated that if Corliss were to be reviewed again, the staff was to

consider whether he successfully completed a treatment program for sex offenders,

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whether he received a favorable recommendation for parole from the Department of

Corrections, and whether he had a clear conduct record and completed the Department

of Corrections Prescriptive Programs. Id. Corliss did not file an appeal of the Board's

denial. 

Petitioner was next considered for, and denied, parole on March 4, 2004. (Rec.

Doc. 12, Ex. C). After an interview and a review of Corliss's file, the Board denied

parole, stating:

having considered all matters required pursuant to the Parole Act of 1941, as

amended, 61 P.S. § 331.1 et seq., the Board of Probation and Parole, in the

exercise of its discretion, has determined at this time that: your best interests do

not justify or require you being paroled/reparoled; and, the interests of the

Commonwealth will be injured if you were paroled/reparoled at this time. 

Id. The Board further stated that the reasons for the Boards decision included

Petitioner's need to participate in and complete additional institutional programs. Id.

Petitioner then appealed his parole denial to the Pennsylvania Commonwealth

Court, which dismissed the appeal on April 8, 2004, stating that “the decision to grant

or deny parole is wholly within the discretion of the Pennsylvania Board of Probation

and Parole and not subject to judicial review, see Reider v. Pennsylvania Board of

Probation and Parole, 514 A.2d 967 (Pa. Cmwlth. 1986).” (Rec. Doc. 12, Ex. E). On

January 25, 2005, the Pennsylvania Supreme Court denied Corliss's Petition for

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Allowance of Appeal. (Doc. 12, Ex. F). 

On September 8, 2005, Corliss filed the above-captioned action in which the

sole issue he raises is that Respondents' refusal to recommend parole and to parole

Petitioner in light of exculpatory DNA evidence violated Petitioner's constitutional

rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. (Rec.

Doc. 1). 

DISCUSSION:

A. Exhaustion

Respondents initially argue that Petitioner's claim has not been exhausted and,

as a result, the Petition should be denied. Bound by the prevailing jurisprudence, the

Court finds no merit to this argument.

Before a federal court may grant habeas relief to a state prisoner, the prisoner

must exhaust his remedies in state court. O'Sullivan v. Boerckel, 526 U.S. 838, 842

(1999). A petitioner is not deemed to have exhausted the remedies available to him if

he has a right, under state law, to raise, by any available procedure, the question

presented. 28 U.S.C. § 2254(c); Castille v. Peoples, 489 U.S. 346, 350, reh'g denied,

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 Exhaustion is not a jurisdictional requirement, but rather a rule of comity. Evans v. Court

of Common Pleas, 959 F.2d 1227, 1231 (3d Cir. 1992).

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490 U.S. 1076, (1989).1 A habeas petitioner retains the burden of showing that all of

the claims alleged have been “fairly presented” to the state courts, which demands, in

turn, that the claims brought in federal court be the “substantial equivalent” of those

presented to the state courts. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982),

cert. denied, 459 U.S. 1115, 103 S.Ct. 750 (1983). 

In the case of an unexhausted petition, the federal courts should dismiss without

prejudice; otherwise, they risk depriving state courts of the “opportunity to correct

their own errors, if any.” Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993). 

However, the Third Circuit has clearly noted that if it is futile to return an unexhausted

claim to the state courts, it should be deemed exhausted for federal habeas purposes. 

Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996); see also 28 U.S.C. § 2234. For

such a return to be futile, state law must unambiguously foreclose state court review

of unexhausted claims. Id. (citations omitted). Otherwise, the federal courts risk

depriving state courts of an “opportunity to correct their own errors, if any.” Toulson,

987 F.2d at 989.

With respect to parole decisions, the Pennsylvania Supreme Court has held that

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a mere denial of parole, under Pennsylvania law, affects no constitutionally protected

liberty interest and, thus, is not an adjudication by an agency subject to state judicial

review. Rogers v. Pennsylvania Bd. of Prob. and Parole, 724 A.2d 319, 322-23 (Pa.

1999). On the other hand, it has noted that although “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.” Id.

at 323 n.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. 

In a subsequent decision, the state Supreme Court expressly held that the issue

of whether a statute relied upon by the Board in making its decision violated the Ex

Post Facto Clause may be raised in state court by way of a petition for writ of

mandamus. Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001). However, the Third

Circuit has more recently held that a writ of mandamus is not available for

Pennsylvania state prisoners challenging denial of parole on constitutional grounds

other than violation of the Ex Post Facto Clause. DeFoy v. McCullough, 393 F.3d

439, 445 (3d Cir. 2005), cert denied, Patrick v. De Foy, 125 S.Ct. 2970 (2005). The

Third Circuit specifically held that a petitioner need not present a claim of other

constitutional violations in a parole denial to the Pennsylvania state courts prior to

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2 The Fourteenth Amendment does not require due process unless the state interferes with a

protected liberty or property interest. Ohio Adult Parole Auth. v. Woodward, 523 U.S. 272, 279-86

(1998); Kentucky Dept. of Corr. v. Thompson, 490 U.S. 454, 459, 460 (1989); Hewitt v. Helms, 459

U.S. 460, 466-71 (1983).

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filing a federal habeas petition. Id.

Although Petitioner is alleging constitutional grounds stemming from the denial

of his parole, he is not alleging a violation of the Ex Post Facto Clause. Therefore,

Petitioner's claim in the instant Petition would not be the proper subject of a writ of

mandamus, making a return to the state courts futile. We, therefore, will consider his

claim to be exhausted for purposes of this petition and will proceed to the merits.

B. Merits

The Constitution alone does not give a convict a liberty interest in parole

protected by the Fourteenth Amendment.2

 Greenholtz v. Nebraska Penal Inmates, 442

U.S. 1 (1979); Thorpe v. Grillo, 80 Fed. Appx. 215, 219 (3d Cir. 2003). Although the

states may create a liberty interest under the Fourteenth Amendment, the

Pennsylvania parole statute does not create a liberty interest in the right to be paroled. 

Burkett v. Love, 89 F.3d 135, 139 (3d Cir. 1996); Rodgers v. Parole Agent SCIFrackville, Wech, 916 F. Supp 474, 476-77 (E.D. Pa. 1996); McCrery v. Mark, 823 F.

Supp. 288, 294 (E.D. Pa. 1993). The Board has complete discretion to grant or deny

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parole, without constraint from any particularized substantive predicates. Wagner v.

Pa. Bd. of Prob. & Parole, No. 04-774, 2004 U.S. Dist. LEXIS 11815 (E.D. Pa. June

23, 2004); 61 Pa.C.S. § 331.21. 

The Third Circuit has held that substantive due process requires that the state

not deny parole on unconstitutionally impermissible grounds, such as race, religion, 

ethnicity, or retaliation for exercising constitutional rights. See Bobko v. Lavan, 157

Fed. Appx. 516, 518 (3d Cir. 2005); Morrissey v. Brewer, 408 U.S. 471 (1972);

Burkett v. Love, 89 F.3d 135, 140 (3d Cir. 1996) (stating that no liberty interest is

created by the expectation of parole). Further, state action is valid if it is rationally

related to a legitimate state interest. Bell v. Wolfish, 441 U.S. 520, 539-40 (1979);

Rogin v. Bensalem Twp., 616 F.2d 680, 689 (3d Cir. 1980), cert. denied, 450 U.S.

1029 (1981). This relationship exists as long as it “might be thought” that the state's

action was a rational way to solve a problem. Williamson v. Lee Optical of

Oklahoma, 348 U.S. 483, 488 (1955); Sammon v. N.J. Bd. of Med. Exam’rs, 66 F.3d

639, 645 (3d Cir. 1995).

Pennsylvania law grants the Parole Board vast discretion to refuse or deny

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 Section 331.19 provides in relevant part:

It shall be the duty of the board . . . 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 . . . . The board shall

further cause the conduct of the person while in prison and his physical, mental and

behavior condition and history, . . . his complete criminal record, as far as the same

may be known, to be reported and investigated.

61 Pa.C.S. § 331.19. 

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parole. See 61 Pa.C.S. § 331.21. The statute provides:

The Board is hereby authorized to release on parole any convict confined

in any penal institution of this Commonwealth as to whom power to

parole is herein granted to said board . . . whenever in its opinion the best

interests of the convict justify or require his being paroled and it does not

appear that the interests of the Commonwealth will be injured thereby . . .

. Said board shall have the power during the period for which a person

shall have been sentenced to recommit one paroled for violation of the

terms and conditions of his parole and from time to time reparole and

recommit in the same manner and with the same procedure as in the case

of an original parole or recommitment . . . 

Id.

The law also authorizes the Board, in its discretion, to consider various factors,

similar to those considered in Petitioner's case, in granting or denying parole. See 61

Pa.C.S. § 331.19.3

 Pennsylvania courts have affirmed the Board's complete discretion

to parole a convict. See e.g., Rogers, 724 A.2d at 319; Weaver v. Bd. of Prob. &

Parole, 514 A.2d 967, 971 (Pa. Commw. Ct. 1986); Reider, 514 A.2d 967. The

convict has no right to reparole. Counts v. Bd. of Prob. & Parole, 487 A.2d 450 (Pa.

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Commw. Ct. 1985). “Federal courts are not authorized by the due process clause to

second-guess parole boards and the requirements of substantive due process are met if

there is some basis for the challenged decision.” Coady v. Vaughn, 251 F.3d 480, 487

(3d Cir. 2001).

In this case, the Parole Board's parole denial, based on Petitioner's need to

participate in and complete additional institution programs, receive a favorable

recommendation for parole from the Department of Corrections, and present a clear

conduct record, complies with Pennsylvania's statutory requirements and was proper.

Reliance upon these legitimate factors in no way implicates abuse of discretion or

action violative of Petitioner's constitutional rights. The Board's exercise of discretion

was neither arbitrary or capricious, and did not violate substantive due process. 

To the extent that Petitioner argues that the Board failed to recognize his

innocence based on alleged exculpatory evidence, he presents no valid factual basis or

information to support his conclusion that DNA evidence exculpates him of his

convicted crime. Moreover, the evidence that Petitioner alleges the Board refused to

review in consideration of his parole has been determined by the Pennsylvania

Superior Court to have been properly rejected by the trial court as inconclusive. See

Commonwealth v. Corliss, No. 3482 Philadelphia, 1998 (Pa. Super. Ct. Nov. 30,

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1999). Thus, Petitioner's contentions lack merit and should be denied.

As to any equal protection claim Petitioner may be attempting to assert, the

United States Court of Appeals for the Third Circuit has held:

no two prisoners, being different human beings, will possess identical

backgrounds and characters. Indeed, it is difficult to believe that any two

prisoners could ever be considered ‘similarly situated’ for the purpose of

judicial review on equal protection grounds of broadly discretionary decisions

because such decisions may legitimately be informed by a broad variety of an

individual's characteristics.

Taliferro v. New Jersey Parole Bd., 460 F.2d 289, 290 (3d Cir. 1972) (per curiam);

Bennett v. California, 406 F.2d 36, 38-39 (9th Cir. 1969); Marciano v. Coughlin, 510

F. Supp. 1034, 1039 (E.D.N.Y. 1981). The determination as to whether to grant

parole is made on an individual basis. Id. Thus, this Court finds no merit to

Petitioner's equal protection argument.

Finally, to the extent that Petitioner argues that the Board's denial of his parole

violates that Eighth Amendment, inmates have no right to be released before the

expiration of a valid prison sentence, and serving some or all of a valid prison

sentence in prison does not constitute cruel and unusual punishment. Greenholtz, 442

U.S. at 7; Williams v. DiGuglielmo, No. 05-3440, 2006 WL 1531641 (E.D. Pa. 2006).

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The Petition (doc. 1) is DENIED.

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2. Petitioner's Motion for Speedy Disposition due to Exigent

Circumstances (doc. 15) 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/ John E. Jones III

John E. Jones III

United States District Judge

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