Folk v. Atty. Gen. of Commonwealth of Pa.

• Decision Date: 27 March 2006
• Docket Number: No. CIV.A. 03-222J.,CIV.A. 03-222J.
• Citation: 425 F.Supp.2d 663
• Parties: Russell E. FOLK, Petitioner, v. ATTORNEY GENERAL OF THE COMMONWEALTH OF PA; George Patrick, Superintendent, Respondents.
• Court: U.S. District Court — Western District of Pennsylvania

425 F.Supp.2d 663

Russell E. FOLK, Petitioner, v. ATTORNEY GENERAL OF THE COMMONWEALTH OF PA; George Patrick, Superintendent, Respondents.

No. CIV.A. 03-222J.

United States District Court, W.D. Pennsylvania.

March 27, 2006.

COPYRIGHT MATERIAL OMITTED

Russell E. Folk, Houtzdale, PA, Pro se.

Mary Lynch Friedline, Office of the Attorney General, Susan J. Forney, Office of Attorney General, Pittsburgh, PA, for Respondents.

ORDER

GIBSON, District Judge.

The above captioned case was initiated by the filing of a Petition and a Motion to Proceed In Forma Pauperis on October 6, 2003, and was referred to United States Magistrate Judge Ila Jeanne Sensenich for pretrial proceedings in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates. The case was transferred to Magistrate Judge Lisa Pupo Lenihan on April 6, 2004.

The magistrate judge's Report and Recommendation (Doc. No. 25), filed on October 24, 2005, recommended that the habeas petition filed pursuant to 28 U.S.C. Section 2254 be dismissed. It was also recommended that a certificate of appealability be denied. The report and recommendation was served on the Petitioner at SCI Houtzdale, P.O. Box 1000, Houtzdale, PA 16698-4000, and on counsel for the Respondents. The parties were advised they were allowed ten (10) days from the date of service to file written objections to the report and recommendation. No objections have been filed. After review of the pleadings and documents in the case, together with the report and recommendation, the following order is entered:

AND NOW, this 27th day of March, 2006;

IT IS HEREBY ORDERED that the habeas petition filed pursuant to 28 U.S.C. Section 2254 is DISMISSED.

IT IS HEREBY ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that the Report and Recommendation (Doc. No. 25) of Magistrate Judge Lenihan, dated October 24, 2005, is adopted as the opinion of the court.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

LENIHAN, United States Magistrate Judge.

RECOMMENDATION

It is respectfully recommended that the petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254 be dismissed. It is also recommended that a certificate of appealability be denied.

REPORT

Russell E. Folk, (Petitioner) seeks habeas relief. Because Petitioner has failed to show that the Pennsylvania Parole Board's consideration, in its parole determinations, of whether he accepted responsibility for the crimes of which he was convicted and/or its consideration of whether he successfully completed rehabilitation programs, which required him to admit guilt, violated any of his federal rights, the Section 2254 petition should be dismissed.

A. Relevant Facts and Procedural History

Petitioner's habeas petition is not a model of clarity. Petitioner was convicted in Berks County of various sexual offenses committed against his seven year old grandson and is serving an aggregate sentence of 6-30 years. Petitioner was denied parole on August 15, 2003. Petitioner complains that the parole board and parole system in Pennsylvania violate the United States Constitution because there is no provision for parole in the Pennsylvania Constitution of 1968 or of the Pennsylvania Constitution of 1873. Second, Petitioner complains that the Board's consideration of his participation or lack thereof in rehabilitative programs which require that he admit his guilt violates his First, Fourth, Fifth, Sixth and Fourteenth Amendment rights.

B. Applicable Legal Principles

The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, tit. I, § 101 (1996) (AEDPA) which amended the standards for granting state prisoners federal habeas relief for petitions filed under 28 U.S.C. § 2254 was enacted on April 24, 1996. Because petitioner's habeas petition was filed in the year 2003, AEDPA is applicable to this case. Werts v. Vaughn, 228 F.3d 178, 195 (3d Cir.2000).

Generally, a federal habeas petitioner is required to have exhausted his state remedies before filing his habeas petition. 28 U.S.C. § 2254(b) & (c). However, a court need not address the exhaustion requirement if it can dismiss the habeas petition on other grounds. See, e.g., 28 U.S.C. § 2254(b)(2).

A state prisoner may seek federal habeas corpus relief only if he is in custody in violation of the United States Constitution or federal law. 28 U.S.C. § 2254(a). Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982); Geschwendt v. Ryan, 967 F.2d 877 (3d Cir. 1992). Violations of state law or procedural rules alone are not sufficient; a petitioner must allege a deprivation of federal rights before habeas relief may be granted. Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982); Wells v. Petsock, 941 F.2d 253 (3d Cir.1991). A federal court's scope of review is limited as it does not sit to retry state cases de novo but examines the proceedings in the state tribunal to determine if there has been a violation of federal constitutional standards. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed.2d 1090 (1983), superseded by statute on other grounds as recognized in, Rickman v. Bell, 131 F.3d 1150, 1165 (6th Cir.1997); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

C. Discussion

The most recent Board order denying Petitioner parole, a copy of which was provided by the Petitioner as an attachment to his habeas petition, indicates that the Board denied Petitioner parole on August 15, 2003. In that denial, the Board cited, inter alia, the following reasons for denying him parole: "YOUR REFUSAL TO ACCEPT RESPONSIBILITY FOR THE OFFENSES COMMITTED. THE RECOMMENDATION MADE BY THE DEPARTMENT OF CORRECTIONS .... YOUR UNACCEPTABLE COMPLIANCE WITH PRESCRIBED INSTITUTIONAL PROGRAMS." Doc. 3, Ex B-1.

(1) The Fifth Amendment is not Violated

The first issue Petitioner raises is that the Board and the Department of Corrections ("DOC") violate his Fifth Amendment rights against self incrimination when, based on his refusal to admit guilt to sexual crimes as apparently required by the rehabilitation programs, DOC denies him a recommendation for parole. The Board denies him parole based partially upon these refusals as well as his failure to complete the rehabilitation programs and failure to obtain the DOC's recommendation.

Petitioner's Fifth Amendment claim fails for at least two reasons: 1) the Fifth Amendment right is not violated until compelled statements are used against a person in a criminal case and parole proceedings do not constitute a criminal case, and 2) the statements required to be made by Petitioner in order to participate in the rehabilitation programs are not "compelled" within the meaning of the Fifth Amendment.

The Fifth Amendment right is not violated until compelled statements are used against a person in a criminal case. Chavez v. Martinez, 538 U.S. 760, 766-68, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003) (plurality). The Fifth Amendment provides in relevant part that "[n]o person shall be ... compelled in any criminal case to be a witness against himself[.]" As explained recently by a plurality of the Supreme Court, the Fifth Amendment right against being compelled to be a witness against oneself in a criminal trial (as opposed to the "right" to various prophylactic rules set forth by the court in aid of the Fifth Amendment right) is a trial right and is not violated unless and until the compelled statements are utilized in a criminal case. As explained by the Court:

Statements compelled by police interrogations of course may not be used against a defendant at trial, but it is not until their use in a criminal case that a violation of the Self-Incrimination Clause occurs, see United States v. Verdugo-Urquidez, 494 U.S. 259, 264, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990)....

. . . . .

Here, Martinez was never made to be a "witness" against himself in violation of the Fifth Amendment's Self-Incrimination Clause because his statements were never admitted as testimony against him in a criminal case. Nor was he ever placed under oath and exposed to "`the cruel trilemma of self-accusation, perjury or contempt.'"

. . . . .

Our holdings in these cases demonstrate that, contrary to the Ninth Circuit's view, mere coercion does not violate the text of the Self-Incrimination Clause absent use of the compelled statements in a criminal case against the witness.

Chavez v. Martinez, 538 U.S. 760, 766-68, 123 S.Ct. 1994, 155 L.Ed.2d 984 (2003)(some citations omitted). The requirements of both the DOC and the Parole Board which demand that Petitioner admit to the sexual crimes he was convicted of, do not constitute compulsion under the Fifth Amendment, because Petitioner, like Martinez, was "never made to be a `witness' against himself in violation of the Fifth Amendment's Self-Incrimination Clause ...." His statements were never admitted as testimony against him in a criminal case, therefore, Petitioner fails to establish that his Fifth Amendment rights were violated. Martinez, 538 U.S. at 767, 123 S.Ct. 1994.

As a plurality opinion, Martinez is not binding authority for this proposition. However, in this Circuit the issue is settled by the binding authority of Renda v. King, 347 F.3d 550, 559 (3d Cir.2003). In Renda, the Court held that

our prior decision in Giuffre [v. Bissell, 31 F.3d 1241 (3d Cir.1994) ] compels the conclusion that it is the use of coerced statements during a criminal trial, and not in obtaining an indictment, that violates the Constitution. See 31 F.3d at 1256. In Giuffre, as in the present case, the police used statements allegedly obtained from a custodial interrogation where the plaintiff was not properly warned of his Miranda rights as a basis for filing criminal charges, but those charges were later dropped. See id. at 1250-51. Under these circumstances, we held that Giuffre's constitutional right against...