IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BRIAN COHEN, )

)

Petitioner, )

)

v. ) Civil Action No. 04-283E

) JUDGE McLAUGHLIN

PENNSYLVANIA BOARD OF ) MAGISTRATE JUDGE BAXTER

PROBATION AND PAROLE, et al., )

)

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that this petition for writ of habeas corpus be dismissed and a

certificate of appealability be denied.

II. REPORT

Petitioner, Brian Cohen, is a state prisoner incarcerated at the State Correctional

Institution at Albion, Pennsylvania. He is serving a sentence of 6 to 20 years for rape and corruption

of minors, which was imposed in 1992 in the Court of Common Pleas of Philadelphia County,

Pennsylvania. Cohen was released on parole, but was recommitted when he violated the terms of his

release. He now challenges the decision by the Pennsylvania Board of Probation and Parole to deny

him reparole on April 24, 2004 (Docket #13, Appendix B). Specifically, Cohen argues that the Board

improperly considered a prior criminal case which was "disposed of by the D.A.'s office", and that he

was improperly removed from his treatment program while incarcerated due to personal animosity on

the part of a Department of Corrections employee (Docket #5 at ¶12). The Board's written reasons

for denial of parole follow:

Your prior history of supervision failure.

Your need to participate in and complete additional institutional programs.

Your interview with the hearing examiner and/or board member.

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(Docket #13, Appendix B).

The Commonwealth has responded to the petition, and asserts that petitioner has failed

to exhaust state remedies and, in the alternative, that he has not presented claims which would warrant

habeas relief (Docket #13). The petition is ripe for disposition.

A. Exhaustion and procedural default.

Cohen concedes that he never attempted to appeal the Board's decision in state court.

The only means for a Pennsylvania prisoner to appeal the denial of parole in state court is through a

petition for writ of mandamus in the Commonwealth Court of Pennsylvania. DeFoy v. McCullough,

393 F.3d 439, 444-445 (3d Cir. 2005). However, this avenue of review is not available to petitioners

who, like Cohen, assert that the state parole board considered improper factors. Id. Thus, there was

no need for Cohen to seek review in the Commonwealth Court of Pennsylvania before filing the

instant petition. Id. ("[W]e conclude that claims of constitutional violations in the denial of parole in

Pennsylvania need not be presented to the state courts via a petition for writ of mandamus in order to

satisfy the requirement of exhaustion.").

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B. Merits

There being no procedural bar to review, the court will consider if Cohen's claims that

the Board denied him parole for improper reasons warrants relief. "[T]here is no constitutional or

inherent right of a convicted person to be conditionally released before the expiration of a valid

sentence." Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100,

60 L.Ed.2d 668 (1979). Both the federal and Pennsylvania state courts have held that parole is not a

constitutionally protected liberty interest under Pennsylvania law. Burkett v. Love, 89 F.3d 135, 139

(3d Cir.1996); Rauso, 79 F.Supp.2d at 551; Rogers v. Pa. Bd. of Probation and Parole, 555 Pa. 285,

724 A.2d 319, 323 (Pa.1999). Because Cohen cannot establish that there is a liberty interest in parole,

he has not demonstrated a violation of a protected constitutional right which would allow him to

present a procedural due process claim. Accordingly, the Board's decision cannot violate any federal

constitutional right to procedural due process.

However, the Third Circuit has held that "even if a state statute does not give rise to

a liberty interest in parole release under Greenholtz, once a state institutes a parole system all prisoners

have a liberty interest flowing directly from the due process clause in not being denied parole for

arbitrary or constitutionally impermissible reasons." Block v. Potter, 631 F.2d 233, 236 (3d Cir.1980);

see also, Rauso v. Vaughn, 79 F.Supp.2d 550, 551 (E.D.Pa.2000). Such a claim would be a

substantive due process claim. To the extent that Cohen may be arguing that the Board arbitrarily and

capriciously relied on unconstitutional factors or incorrect information to deny his application for

parole, he nonetheless has failed to establish a violation of his substantive due process rights. The

Supreme Court has held that "although a person may have no 'right' to a valuable government benefit,

and may be denied it for any number of reasons, 'there are some reasons upon which the government

may not rely." ' Burkett, 89 F.3d at 139 (citing Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Under

a substantive due process analysis, a state may not deny parole on constitutionally impermissible

grounds, such as race or in retaliation for exercising constitutional rights. Burkett, 89 F.3d at 140. In

addition, a state may not base a parole decision on factors bearing no rational relationship to the

interests of the Commonwealth. Block, 631 F.2d at 237.

Pennsylvania law grants the Board broad discretion to refuse or deny parole. Under

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state law the Board is 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 the [B]oard

... 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.

61 Pa. Cons.Stat. Ann. § 331.21(a) ("Power to parole; refusal of parole at expiration of minimum

term; controlled substance screening; recommitment and reparole"). The scope of the factors which

the Board may consider is very broad, and includes:

... the nature and circumstances of the offense committed ... the general

character and background of the prisoner ... the conduct of the person while in

prison and his physical, mental and behavior condition and history ... 

61 Pa. Cons.Stat. Ann. § 331.19 ("Investigation of circumstances of offenses and character and history

of prisoner; matters considered in granting parole").

In this case, Cohen argues that it was improper for the Board to consider criminal

charges which, apparently, were disposed of favorably to Cohen by the charging District Attorney.

There is no provision of Pennsylvania law which limits the Board's consideration to only that criminal

behavior which results in convictions. Thus, even if, as Cohen alleges, the Board considered charges

which were ultimately not brought to trial, there is no constitutional infirmity arising from such

consideration. Likewise, the Board may properly consider Cohen's progress in programs while

incarcerated. Cohen was free to present to the Board his claim that he was unfairly denied

participation in such programs by prison personnel. Again, no constitutional infirmity arises even if

Cohen's allegations are correct since the Board may properly conclude, as it did, that Cohen should

complete additional institutional programs prior to being released.

Petitioner has failed to show that the Board's decision violated his constitutional rights

in any fashion. The instant petition should be dismissed.

C. Certificate of Appealability

Section 102 of AEDPA, 28 U.S.C. § 2253(c), codifies standards governing the issuance

of a certificate of appealability for appellate review of a district court's disposition of a habeas petition.

It provides that "[a] certificate of appealability may issue ... only if the applicant has made a

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substantial showing of the denial of a constitutional right." Cohen has not made a showing that he has

been denied his constitutional rights. Accordingly, a certificate of appealability should be denied.

III. CONCLUSION

It is respectfully recommended that this petition be dismissed and a certificate of

appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

 /s/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

CHIEF UNITED STATES MAGISTRATE JUDGE

Dated: January 20, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge

Brian Cohen, BV-4156

SCI Albion

10745 Route 18

Albion, PA 16475

Robert P. Englesberg, Esquire

Office of the Attorney General

6

th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

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