Opinions of the United 2005 Decisions States Court of Appeals for the Third Circuit
1-4-2005
DeFoy v. McCullough Precedential or Non-Precedential: Precedential
Docket No. 03-3474
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 03-3474 ___________
ROBERT DEFOY,
Appellant
v.
JOHN M . MCCULLOUGH, Superintendent: GERALD J. PAPPERT, Att. General: PENNSYLVANIA BOARD OF PROBATION AND PAROLE
___________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 00-cv-00110E) District Judge: The Honorable Sean J. McLaughlin ___________ ARGUED MAY 11, 2004
BEFORE: NYGAARD, M cKEE, and WEIS, Circuit Judges.
(Filed: January 4, 2005)
Thomas W. Patton, Esq. (Argued) Office of Federal Public Defender 1001 State Street 1111 Renaissance Centre Erie, PA 16501 Counsel for Appellant
Scott A. Bradley, Esq. (Argued) Office of Attorney General of Pennsylvania 564 Forbes Avenue M anor Complex, 6 th Floor Pittsburgh, PA 15219
James K. Vogel, Esq. Office of District Attorney 140 West 6th Street Erie, PA 16501 Counsel for Appellees
2 ___________
OPINION OF THE COURT ___________
NYGAARD, Circuit Judge.
This case arises from a situation that is troubling on
several accounts: First, because it highlights the procedural
morass that state prisoners face in pursuing habeas relief, and
second, because it illustrates the tension between what should be
the touchstone of any penal system—rehabilitation—and a
convicted sex offender’s rights against self-incrimination under
the Fifth Amendment. Presently, we must determine whether a
Pennsylvania state prisoner challenging his denial of parole on
Fifth Amendment grounds must first seek a writ of mandamus
in state court before seeking federal habeas review. For the
reasons that follow, we hold that the answer is no.
3 I.
Robert DeFoy was convicted in state court of armed
robbery. He served ten years of a 10–20 year sentence before
being paroled. Shortly after his release, DeFoy was recommitted
as a technical parole violator to serve eighteen additional
months. After serving this additional time, he was re-paroled.
While on parole for the second time, DeFoy was arrested
for involuntary deviate sexual intercourse, statutory rape, and
corruption of a minor. During trial on these charges, DeFoy
testified as to his innocence but was convicted nonetheless and
sentenced to 78–156 months imprisonment. In addition, the
state court revoked his parole on the armed robbery sentence and
ordered him to serve an additional forty months imprisonment
for that offense.1 Finally, the sentencing judge recommended
1. Under Pennsylvania law, “[a] grant of parole does not eliminate (continued...)
4 that DeFoy participate in Pennsylvania’s Sexual Offender
Treatment Program. Because DeFoy was unwilling to admit he
committed the sex offenses, however, he was precluded from
participating in the Program.2 In turn, he was twice denied
parole while serving the armed robbery sentence because he had
not participated in the Program. DeFoy’s direct appeals in the
Pennsylvania courts were denied on the basis that denials of
parole are not appealable in those courts. He did not file a writ
of mandamus or a writ of habeas corpus in state court and
instead sought federal habeas relief.
1. (...continued) a prisoner’s sentence, but instead, the prisoner continues to serve his sentence during which time he or she is the subject of society’s rehabilitation efforts under supervision.” Weaver v. Pa. Bd. of Prob. & Parole, 688 A.2d 766, 769 (Pa. Commw. Ct. 1997). Once DeFoy violated his parole by committing new crimes, he was subject to being recommitted on his armed robbery sentence. 2. One of the specific criteria for the treatment phase of the Program stipulates that an inmate must “admit [his] offense.” See App. at 239.
5 DeFoy’s amended petition under 28 U.S.C. § 2254
included several claims, but only one is presently relevant.
According to DeFoy, the requirement that he admit guilt to
qualify for the Sexual Offender Treatment Program violates his
Fifth Amendment right against coerced self-incrimination. The
District Court referred this claim to the Magistrate Judge, who
ultimately concluded it was likely DeFoy could have filed a
petition for a writ of mandamus in the Pennsylvania state courts.
In light of our instruction that any ambiguity concerning the
availability of a state remedy should result in a habeas petition
claim being dismissed as unexhausted, see Coady v. Vaughn,
251 F.3d 480, 489 (3d Cir. 2001), the Magistrate Judge
recommended that the District Court dismiss the petition. The
District Court adopted the Magistrate Judge’s Report and
Recommendation in its entirety, but entered a certificate of
appealability on the following question: “Whether constitutional
claims concerning the denial of parole in Pennsylvania, other
than those premised upon the ex post facto Clause, must be
6 presented to the state courts in order to satisfy the exhaustion
requirement.”
II.
We have jurisdiction over a District Court’s final order
dismissing a habeas petition pursuant to 28 U.S.C. §§ 2253 and
1291.
A.
The threshold issue before us is whether DeFoy’s petition
is moot. The Commonwealth claims this is the case because
DeFoy is no longer serving his sentence for armed robbery, but
instead is now serving his sentence for the sex offenses. Thus,
according to the Commonwealth, any denial of parole occurring
while DeFoy was still serving his armed robbery sentence will
remain unaffected by our ruling. This argument is flawed.
A prisoner may seek federal habeas relief only if he is in
custody in violation of the constitution or federal law. 28 U.S.C.
§ 2254(a). Moreover, a petition for habeas corpus relief
generally becomes moot when a prisoner is released from
7 custody before the court has addressed the merits of the petition.
Lane v. Williams, 455 U.S. 624, 631 (1982). This general
principle derives from the case or controversy requirement of
Article III of the Constitution, which “subsists through all
stages of federal judicial proceedings, trial and appellate . . . the
parties must continue to have a personal stake in the outcome of
the lawsuit.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78
(1990) (internal citations and quotations omitted). In other
words, throughout the litigation, the plaintiff “must have
suffered, or be threatened with, an actual injury traceable to the
defendant and likely to be redressed by a favorable judicial
decision.” Id. at 477; see also Maleng v. Cook, 490 U.S. 488,
492 (1989) (holding that habeas petitioner does not remain “in
custody” after the sentence imposed has fully expired merely
because of the possibility that the prior conviction will be used
to enhance sentences imposed for any subsequent crimes of
which he is convicted); United States v. Romera-Vilca, 850 F.2d
177, 179 (3d Cir. 1988) (holding that prisoner’s motion to
8 vacate his conviction was not mooted when he was released
from custody, where he faced potential deportation as a
collateral consequence of conviction).
In Garlotte v. Fordice, 515 U.S. 39, 41 (1995), the
Supreme Court held that a prisoner’s challenge to the validity of
his conviction was not moot despite the fact that he was no
longer in custody for that conviction. The Court reasoned that
because Garlotte was still in custody for sentences consecutive
to that already served, he could attack the conviction underlying
the sentence that ran first in the series. Id. Although the facts
in Garlotte are somewhat different from those here (i.e., the
prisoner there had been convicted and sentenced by the same
court at the same time), Garlotte allows us to review a
completed sentence when the prisoner, like DeFoy, is still
serving a sentence imposed by a different court at a different
time. See Foster v. Booher, 296 F.3d 947, 950 (10th Cir. 2002).
DeFoy was required to serve the remainder of his armed
robbery sentence before he could begin serving his sex offense
9 sentence. The effect of any error as to the former was to delay
the start of the latter. Thus, because any remedy we grant
DeFoy might affect his release date for the sentence he is
currently serving, we conclude that under Garlotte and Foster,
DeFoy’s habeas petition is not moot. 3
B.
We may not review a petition for writ of habeas corpus
“unless it appears that . . . the applicant has exhausted the
remedies available in the courts of the State,” or shows that
3. There is also a narrow exception to the general mootness rule that rescues DeFoy’s petition from being moot. The doctrine of collateral consequences applies where a former prisoner can demonstrate he will suffer some collateral consequences if his conviction is allowed to stand. See Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968); Chong v. Dist. Dir., INS, 264 F.3d 378, 384 (3d Cir. 2001). It is a petitioner’s burden to demonstrate that collateral consequences exist to avoid having a case dismissed as moot. United States v. Kissinger, 309 F.3d 179, 181 (3d Cir. 2002). The Supreme Court has held that the length of a term of supervised release cannot be reduced “by reason of excess time served in prison.” United States v. Johnson, 529 U.S. 53, 60 (2000). Requiring DeFoy to admit his guilt after having consistently denied it may have the collateral consequence of his being indicted for perjury. Therefore, even if DeFoy had already been released from prison, the collateral consequences doctrine would prevent the issue from being moot.
10 doing so would be futile because state procedures are
unavailable or ineffective. 28 U.S.C. § 2254(b). The
exhaustion doctrine addresses “federalism and comity concerns
by affording the state courts a meaningful opportunity to
consider allegations of legal error without interference from the
federal judiciary.” Coady, 251 F.3d at 488 (internal citations
and quotations omitted). The burden is on the habeas petitioner
to prove exhaustion. Toulson v. Beyer, 987 F.2d 984, 987 (3d
Cir. 1993). The District Court—in the midst of considerable
jurisprudential confusion on the issue—concluded that DeFoy
failed to exhaust his state remedies because he could have filed
a petition for a writ of mandamus in the state court before
proceeding with his federal habeas corpus petition. We apply
plenary review to this conclusion. Whitney v. Horn, 280 F.3d
240, 249 (3d Cir. 2002).
Although we have requested, and received, some
clarification from the Pennsylvania Supreme Court regarding the
remedies available to prisoners who wish to challenge their
11 denial of parole on constitutional grounds, see, e.g., Coady v.
Vaughn, 770 A.2d 287 (Pa. 2001), the Court’s response is not
conclusive as to the issues before us now. Therefore, some
recitation of the relevant Pennsylvania case law is in order.
In Burkett v. Love, 89 F.3d 135, 142 (3d Cir. 1996), we
predicted that Pennsylvania courts would permit three methods
of attacking the denial of parole in Pennsylvania courts: direct
appeal, mandamus, and state habeas corpus. Our predictions
were refuted in Weaver v. Pennsylvania Board of Probation &
Parole, 688 A.2d at 766, when the Pennsylvania
Commonwealth Court declined to adopt the reasoning in Burkett
and held these suggested remedies to be unavailable. It noted,
specifically, “we do not believe that the remedies suggested in
Burkett are available to a prisoner who has been denied parole
based upon an unconstitutional factor.” Id. at 771–72. It is
certainly worth noting that the issue in Weaver was identical to
the issue here: whether a parole board may deny parole based on
the fact that a prisoner has not completed a sex offender
12 treatment program when that failure stems from the prisoner’s
refusal to admit guilt for the sex offense in the first place.
In light of Weaver, several District Courts in our Circuit
relied on the premise that there were no remedies in
Pennsylvania state courts for prisoners who wished to challenge
the denial of parole, even when the denial was based on an
unconstitutional factor. As a result, these courts excused
exhaustion of state remedies. See, e.g., Bonilla v. Vaughn, No.
97-7440, 1998 WL 480833 at *5 (E.D. Pa. Aug. 14, 1998);
Speth v. Pennsylvania Bd. of Probation & Parole, No. 98-1631,
1998 WL 272155 at *2 (E.D.Pa. May 18, 1998); cf. George v.
Vaughn, No. 98-3, 1998 WL 188847, at *2 (E.D. Pa. April 21,
1998) (“[I]t is not clear whether any remedies are available in
Pennsylvania to challenge the denial of parole.”).
This area of law became conflicted, however, when the
Pennsylvania Commonwealth Court in Myers v. Ridge, 712
A.2d 791, 794 (Pa. Commw. Ct. 1998), seemingly ignoring
Weaver, reached the merits of a prisoner’s due process, ex post
13 facto, and equal protection claims because it found that it may
entertain an application for a writ of mandamus to review the
Board’s denial of parole “to the extent that a constitutional or
statutory violation has occurred.” The Commonwealth Court’s
failure to distinguish its decision in Myers from its holding in
Weaver—or for that matter to even cite to Weaver—added to the
already confusing jurisprudence.
The Pennsylvania Supreme Court entered the fray in
Rogers v. Pennsylvania Board of Probation and Parole, 724
A.2d 319 (Pa. 1999), holding that direct appeal is not available
to challenge the denial of parole. Id. However, in a footnote,
the Rogers Court made what can be considered as only a passing
reference to the question at issue, recognizing the potential
viability of a writ of mandamus. Id. at 323 n.5. It noted that
mandamus “may be available to compel the Parole Board to
conduct a hearing or to apply the correct law.” Id. (emphasis
added). It seems plain enough that saying something “may” be
available is not the same as saying something “is” available.
14 Given the Pennsylvania Supreme Court’s equivocation,
we did not consider this to be a conclusive and final clarification
of the issue, and we subsequently certified the question to the
Pennsylvania Supreme Court. Specifically, we asked:
1. May a person who has been denied parole from a Pennsylvania sentence obtain review from a Pennsylvania state court of a claim that the denial of parole violated the ex post facto clause of the United States Constitution?
2. If so, may review be appropriately secured on direct appeal, through a petition for a writ of mandamus, or in some other manner?
Coady, 251 F.3d at 489. The Pennsylvania Supreme Court
advised that where:
discretionary actions and criteria are not being contested but rather the actions of the board taken pursuant to changed statutory requirements are being challenged, an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Such an action could be brought in the original jurisdiction of the Commonwealth Court. Absent a change in the statutes governing parole, however, denial of parole would generally constitute a discretionary matter that is not subject to review.
15 Coady, 770 A.2d at 290. Importantly, the Pennsylvania
Supreme Court in Coady provided guidance only as to
challenges to denials of parole premised on violations of the ex
post facto Clause. It specifically held that “parole denial claims
are not normally suited to review by way of mandamus.” Id. at
290. It held, moreover, that “[m]andamus will not lie to compel
a purely discretionary act.” Id.
Inasmuch as Weaver has never been overruled, we
conclude that it is the best indication of how the Pennsylvania
Supreme Court would resolve the issues raised by DeFoy.
Because the Commonwealth Court’s decision in that case is
directly on point, it is highly instructive here. Therefore, a
Pennsylvania state prisoner challenging the denial of parole
need not file a petition for a writ of mandamus in order to satisfy
the dictates of exhaustion.
The Weaver Court held that mandamus is not available to
a prisoner denied parole based upon a constitutional error by the
parole board. 688 A.2d at 771–72. The Court explained:
16 Mandamus is based upon a duty by an agency to follow a law and is available only when, under a correct interpretation of that law, the agency has an absolute ministerial duty—no choice—to act in a certain way. Mandamus cannot be used to say that an agency considered improper factors, that its findings of fact were wrong, or that the reasons set forth in its decision are a pretense. If that was the nature of mandamus, there would be no difference between it and an appeal from the agency’s decision or other forms of actions to address those concerns.
Id. at 777 (emphasis added) (footnote omitted). As in Weaver,
DeFoy’s refusal to admit guilt was the dispositive— albeit
potentially improper— factor in the denial of his parole. As the
Weaver Court explains, however, mandamus is not available to
review a parole board’s consideration of improper factors. By
force of logic, therefore, DeFoy is not entitled to seek a writ of
mandamus on his claim.
We do not believe the decision of the Pennsylvania
Supreme Court in Coady is in conflict with our conclusion. Our
certified question in that case concerned the availability of
mandamus for challenges to the denial of parole premised solely
17 upon the ex post facto Clause, not upon any and all
constitutional protections. In response, the Pennsylvania
Supreme Court held that mandamus is available where a
challenge to the denial of parole is premised on the ex post facto
Clause. In the same breath, however, it held that “[a]bsent a
change in the statutes governing parole . . . denial of parole
would generally constitute a discretionary matter that is not
subject to review [via a petition for writ of mandamus].”
Coady, 770 A.2d at 290. The Court also explained that “parole
denial claims are not normally suited to review by way of
mandamus.” Id. A fair reading of Coady suggests a hesitance
on the part of the Pennsylvania Supreme Court to permit a writ
of mandamus to review the denial of parole.
We therefore read Coady’s holding narrowly, applying
only to ex post facto claims. Indeed, if mandamus extended
beyond the holding in that case, it would—as the
Commonwealth Court explained in Weaver—be no different
than a direct appeal. See Weaver, 688 A.2d at 777. And
18 whatever the status of mandamus, it is settled that no direct
appeal is available. See Coady, 770 A.2d at 289. Thus,
mandamus is not available for Pennsylvania state prisoners
seeking to challenge the denial of their parole on constitutional
grounds other than the ex post facto Clause.
Accordingly, in answer to the question submitted by the
District Court, we 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. We reverse the
District Court to the extent it held otherwise and remand so the
District Court may address the merits of DeFoy’s petition.4
4. We do not reach DeFoy’s constitutional argument under the Fifth Amendment. He alleges that because Pennsylvania’s practice makes parole for any sex offender contingent on participation in the Sexual Offender Treatment Program, and the Program in turn requires that he admit guilt, the Program violates his rights under the Fifth Amendment. We acknowledge that if DeFoy’s allegations are accurate, then he was presented with an unenviable choice: refuse to admit guilt and be ineligible to participate in the Program, thereby losing eligibility for parole, or admit guilt and incriminate himself, (continued...)
19 III.
We reverse the judgment of the District Court dismissing
DeFoy’s claims as unexhausted and remand for proceedings
consistent with this opinion.
_________________________
4. (...continued) providing evidence that would most certainly be used against him in any post-conviction efforts to demonstrate his innocence. However, because the District Court did not certify to us the question of the Program’s constitutionality, we express no view.
20 9DeFoy v. McCullough, No. 03-3474 ____________________________________________
Weis, Circuit Judge, concurring.
I agree with the result reached by the majority, but arrive
there by a different route. In my view, Pennsylvania law
provides a procedure through which DeFoy may present his
claim to the state courts and indicates that they have jurisdiction
over that remedy. However, it would be futile to require him to
pursue his efforts in the state forum, because, on several
occasions, the Commonwealth Court has denied claims similar
to DeFoy’s on the merits. Therefore, the District Court should
excuse exhaustion of state remedies and proceed to decide the
case.
As the majority notes, the means by which a state
prisoner may seek relief in state courts from a denial of parole
based on a constitutional violation is a matter of considerable
jurisprudential confusion. In Burkett v. Love, 89 F.3d 135 (3d
21 Cir. 1996), we reviewed the opinions of the Pennsylvania
Supreme Court and the Commonwealth Court as of that time
and concluded that a prisoner had “available three potential
ways of attacking the denial of parole in Pennsylvania courts –
appeal, mandamus or habeas corpus.”
Following our decision in Burkett, the Pennsylvania
Supreme Court held that Parole Board decisions are not
“adjudications” under state law and, therefore, they are not
appealable. Rogers v. Pa. Bd. Of Prob. & Parole, 724 A.2d 319
(Pa. 1999). However, in a footnote the Court said,
“While 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, or through an action under 42 U.S.C. § 1983.5 Mandamus is an extraordinary remedy which is available to compel the Parole Board to conduct a hearing or to apply the correct law.”
Id. at 323 n.5 (internal citations omitted).
5. Whether § 1983 is a proper remedy for denial of parole was argued before the United States Supreme Court on December 6, 2004 in the case of Wilkinson v. Dotson, No. 03-287.
22 In Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir. 2001),
we certified a narrow question to the Pennsylvania Supreme
Court – may a person who has been refused parole obtain review
in a Pennsylvania state court of a claim that the denial “violated
the ex post facto clause of the United States constitution,” and,
if so, “may review be appropriately secured on direct appeal,
through a petition for a writ of mandamus, or in some other
manner.” Coady, 251 F.3d at 489.
In response to our inquiry, the Pennsylvania Supreme
Court acknowledged that “parole denial claims are not normally
suited to review by way of mandamus” and “mandamus will not
lie to compel a purely discretionary act.” Coady v. Vaughn, 770
A.2d 287, 290 (Pa. 2001). However, the court explained
“where . . . discretionary actions and criteria are not being contested . . . an action for mandamus remains viable as a means for examining whether statutory requirements have been altered in a manner that violates the ex post facto clause. Such an action could be brought in the original jurisdiction of the Commonwealth Court.”
23 Id.; see also Hall v. Pa. Bd. of Prob. & Parole, 851 A.2d 859
(Pa. 2004) (entertaining an appeal from Commonwealth Court’s
dismissal of a mandamus petition and holding that the ex post
facto clause had not been violated.); Finnegan v. Pa. Bd. of
Prob. & Parole, 838 A.2d 684, 687 (Pa. 2003) (citing Coady and
concluding that mandamus is the “proper avenue for seeking
relief” under the ex post facto clause of the United States
Constitution).
Although in Coady the Pennsylvania Supreme Court did
not consider the availability of mandamus for constitutional
challenges other than those raising the ex post facto clause,6 no
subsequent opinion by that court has expressly confined the
holding in Coady to preclude other constitutional challenges.
In Winklespecht v. Pennsylvania Board of Probation &
Parole, 813 A.2d 688 (Pa. 2002), the Court considered the
merits of the appellant’s ex post facto claim, but concluded that
6. Given the limited question this Court certified, the answer was jurisprudentially correct.
24 no relief was due. The Court declined to decide whether habeas
corpus was an available remedy for a “true constitutional claim.”
Id. at 692.
Justice Castille’s concurring opinions, both joined by
Justice Newman, in Coady and Winklespecht suggest that a
constitutional challenge to a parole denial may by cognizable
under Pennsylvania’s habeas corpus statute. Justice Castille
noted that “because the practical effect of a parole denial is the
continuation of the prisoner’s incarceration, a petition for writ
of habeas corpus would seem to be the logical and appropriate
manner to raise a viable constitutional claim stemming from the
Parole Board’s decision.” Coady v. Vaughn, 770 A.2d 287, 291
(Pa. 2001) (Castille, J., concurring). Justice Castille stated that
comments on habeas corpus to the contrary in Weaver v. Pa. Bd.
of Prob. & Parole, 688 A.2d 76 (Pa. Commw. Ct. 1997), were
“problematic to say the least.” Id. at 294.
I have found no opinion of the Pennsylvania Supreme
Court post-Coady containing any language suggesting that only
25 constitutional claims raising an ex post facto charge are subject
to review. Similarly, research has not uncovered any holding of
the Pennsylvania Commonwealth Court after Coady stating that
mandamus jurisdiction is limited to ex post facto claims. In fact,
in Voss v. Pennsylvania Board of Probation & Parole, 788 A.2d
1107 (Pa. Commw. Ct. 2001), a post-Coady case, the Court
addressed the merits of a mandamus case involving
constitutional issues other than the ex post facto clause. Voss
sustained an inmate’s due process challenge, concluding that it
was “not persuaded that” denial of a “parole application based
upon a [concept of] ‘achieving the fair administration of
justice’... meets the requirements of due process.” Id. at 1111.
Similarly, in Evans v. Pennsylvania Board of Probation
& Parole, 820 A.2d 904 (Pa. Commw. Ct. 2003), also post-
Coady, an inmate presented claims of both an ex post facto
clause violation and a denial of due process. The Court denied
both claims on the merits but conceded a constitutional right to
due process in parole cases. Id. The Court did not deny
mandamus jurisdiction on either claim.
26 Weaver, 688 A.2d 766, is a pre-Coady opinion. In that
case, the prisoner alleged a Fifth Amendment violation in being
denied parole because he refused to admit guilt in order to
qualify for the Sex Offender Treatment program. Id. at 769.
The Commonwealth Court found that it had no jurisdiction to
consider the claim as a direct appeal, a holding later confirmed
by Rogers. Id. at 770-71. In the course of discussing the
availability of mandamus, the court said that, “Mandamus
cannot be used to say that an agency considered improper
factors . . ..” Id. at 777. The Court explained
“Because there is no constitutional prohibition against using Weaver’s refusal to admit that he committed the rape for which he was convicted as a basis for denying participation in treatment program, and because a failure to successfully complete that program is a valid reason for denying parole, Weaver has failed to set forth a cause of action in mandamus.”
Id. at 779.
In other portions of its opinion, however, Weaver
referred to constitutional violations “that are wholly extraneous
to the decision of whether or not to grant parole, i.e., retaliation
for bringing a lawsuit, race, religion and national origin.” Id. at
773. These matters are “non-legitimate and non-bona fide
27 reasons for denying parole because they have no relation to the
parole process.” Id. A fair reading of Weaver reveals that it
recognizes that mandamus jurisdiction exists in the
Commonwealth Court for constitutional violations that should
not enter into a parole decision.
Less than a year after Weaver, in a case “in the nature of
mandamus,” the Commonwealth Court suggested that
mandamus was available to remedy constitutional violations in
the refusal of parole. Myers v. Ridge, 712 A.2d 791 (Pa.
Commw. Ct. 1998). The Court noted that “decisions to grant or
deny parole” are not usually reviewable except where “a
constitutional or statutory violation has occurred.” Id. at 794.
Myers did not discuss or cite Weaver even though the factual
predicates and legal issues were similar.
My research persuades me that Pennsylvania does
provide a remedy for constitutional violations that infect parole
denial proceedings. The state supreme court seemingly would
permit the use of mandamus for that purpose. The court has not
28 definitively addressed the question of whether habeas corpus is
available.7
I am convinced that the courts of Pennsylvania would not
deny jurisdiction over claims of constitutional violations in
prison settings or elsewhere. Consequently, I would hold that
DeFoy’s claim would find a jurisdictional basis in the
Pennsylvania courts.
The exhaustion of state remedies requirement is excused
when resort to the state courts would be futile. Lynce v.
Mathias, 519 U.S. 433 (1997); Whitney v. Horn, 280 F.3d 240
(3d Cir. 2002); Lines v. Larkins, 208 F.3d 153 (3d Cir. 2000).
The Pennsylvania courts have rejected the constitutional theory
espoused by DeFoy on a number of occasions and there is no
reason to expect a different result if he would be required to
bring an action for mandamus. See Byrd v. Pennsylvania Bd. of
Prob. & Parole, 826 A.2d 65 (Pa. Commw. Ct. 2003); Sontag v.
7. In Winklespecht, the court noted, “. . . we leave for another day the question of the propriety of habeas corpus as a remedy.” Winklespecht, 813 A.2d at 692.
29 Ward, 789 A.2d 778 (Pa. Commw. Ct. 2001); Weaver, 688 A.
2d 766 (Pa. Commw. Ct. 1997).
C.
In these circumstances, where a remedy potentially exists
but attempting to exercise it would be futile, I agree with the
majority that exhaustion is not required and the District Court
should decide the case.
The issues in this case are important, but in the absence
of a fully developed record, like the majority, I intimate no view
as to whether DeFoy has a cause of action. Some sources
bearing on the issue are McKune v. Lile, 536 U.S. 24 (2002);
Ainsworth v. Risley, 317 F.3d 1 (1 st Cir. 2002); see also Rauser
v. Horn, 241 F.3d 330 (3d Cir. 2001); Kerr v. Farrey, 95 F.3d
472 (7 th Cir. 1996); Seth Grossman, Note: A Thin Line Between
Concurrence and Dissent: Rehabilitating Sex Offenders in the
Wake of M cKune v. Lile, 25 Cardoza L. Rev. 1111 (2004)
(reviewing denial of parole to inmates later vindicated by DNA
evidence).
A development of the record on the current practices of
the Department of Corrections and the Board of Parole with
30 respect to the implementation of the Sex Offender Treatment
Program may be in order. Consideration of alternatives to
admissions of guilt as a prerequisite to participation in a
program or eligibility for parole may be crucial. See e.g.,
Jonathan Kaden, Therapy for Convicted Sex Offenders:
Pursuing Rehabilitation Without Incrimination, 89 J. Crim. L. &
Criminology 347 (1998); Colorado Dep’t of Corrections: State
Sex Offender Treatment Programs, 50 State Survey 2000.