Owens v. Beard, No. 3:CV-93-0320.

• Court: United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
• Writing for the Court: McCLURE
• Citation: 829 F. Supp. 736
• Parties: Robert C. OWENS, Petitioner, v. Jeffrey BEARD, Warden; and Attorney General of the Commonwealth of Pennsylvania, Respondents.
• Docket Number: No. 3:CV-93-0320.
• Decision Date: 13 August 1993

829 F. Supp. 736

Robert C. OWENS, Petitioner,
v.
Jeffrey BEARD, Warden; and Attorney General of the Commonwealth of Pennsylvania, Respondents.

No. 3:CV-93-0320.

United States District Court, M.D. Pennsylvania.

August 13, 1993.

829 F. Supp. 737

Irving L. Bloom, Greensburg, PA, for petitioner.

Ernest D. Preate, Jr., Office of Atty. Gen., Harrisburg, PA, Ray Gricar, Dist. Attorney's Office, Bellefonte, PA, for respondents.

MEMORANDUM

McCLURE, District Judge.

BACKGROUND

Petitioner Robert C. Owens, an inmate at the State Correctional Institution at Camp Hill, Pennsylvania, filed a petition for writ of habeas corpus¹ challenging the Pennsylvania courts' refusal to permit him to remain free on bail following his sentencing and pending appeal. Petitioner was free on $100,000.00 bail prior to sentencing.

829 F. Supp. 738

Petitioner was convicted in the Court of Common Pleas of Centre County, Pennsylvania on charges of indecent assault and involuntary deviate sexual intercourse² filed to Centre County CR No. 1990-1611. He was sentenced on June 16, 1992 by the Honorable David E. Grine to an aggregate minimum term of imprisonment of sixteen years and a maximum term of 65 years, on sixteen separate counts.³

Following petitioner's sentencing, the court revoked bail, stating that there existed a danger that the petitioner might commit other crimes if allowed to remain free on bail and citing the fact that he had been convicted of a felony. Petitioner appealed the bail revocation to the Pennsylvania Superior and Supreme Courts. Both denied the appeal. Petitioner's appeal from his conviction is still pending before the Pennsylvania Superior Court at No. 417 Harrisburg, 1992.

Petitioner contends in this action that the Pennsylvania courts' refusal to grant bail pending his appeal is a violation of the Eighth Amendment right to be free from excessive bail. He also challenges the alleged failure of the trial court judge to set forth on the record facts supporting his determination that bail revocation was appropriate because of the possibility that the defendant would commit other crimes. Pa. R.Crim.P. 4010 B(2)(c). Petitioner alleges that the trial court's failure to follow Pennsylvania procedural requirements constitutes a violation of his right to due process under the Fourteenth Amendment.

The case was assigned to the Honorable J. Andrew Smyser, United States Magistrate Judge. In a report and recommendation dated May 7, 1993 (Record Document No. 6), the magistrate judge recommends that the petition for writ of habeas corpus be denied without a hearing.

Petitioner filed objections to the magistrate judge's report and recommendation in which he argues that the Pennsylvania courts' bail revocation should be reversed because the trial court judge failed to state any factual basis on the record for his refusal to allow the petitioner to remain free on bail pending appeal. (Record Document No. 8).

Standard of review of magistrate judge's report

If objections are filed to the report of a magistrate judge, we are required to make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. We may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. 28 U.S.C. § 636(b)(1) and Local Rule 904.2. Although our review is de novo, we are permitted, by statute, to rely upon the magistrate judge's proposed findings and recommendations to the extent we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980). Accord: Goney v. Clark, 749 F.2d 5, 7 (3d Cir.1984).

Exhaustion of remedies

Federal courts may grant habeas corpus relief to a state prisoner only if available state remedies have been exhausted. Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir.1991), citing 28 U.S.C. § 2254(b). Petitioner has exhausted state remedies for the claims asserted here as required by 28 U.S.C. § 2254(b). Petitioner appealed the state trial court's revocation of bail to the Pennsylvania Superior and Supreme Courts. Both courts denied his appeal.

Bail revocation post-sentencing

Plaintiff alleges the violation of his Eighth Amendment and Fourteenth Amendment due process rights. To prove a violation of due process rights, a plaintiff must show that he was deprived of a liberty or property interest protected by the Fourteenth Amendment. Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 8, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979). "Liberty interests protected by the Fourteenth Amendment may arise from one of two sources — the Due Process Clause itself and the laws of the

829 F. Supp. 739

States." Hewitt v. Helms, 459 U.S. 460, 466, 103 S.Ct. 864, 868-69, 74 L.Ed.2d 675 (1983). Accord: Kentucky Department of Correction v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989)

It is clear that "a criminal defendant has no absolute federal constitutional right to bail pending appeal from a conviction." Lewis v. Maine, 736 F.Supp. 13, 14 (D.Me.1990). Accord: Finetti v. Harris, 609 F.2d 594, 599 (2d Cir.1979) and United States v. Aytch, 355 F.Supp. 630, 642 (E.D.Pa.1973). Hence, if such a right exists, it must stem from the laws of Pennsylvania.

"The existence of a statutorily created liberty interest depends upon the statutory language and `must be decided on a case-by-case basis.'" Reider v. Commonwealth, Bureau of Correction, 93 Pa.Cmwlth. 326, 502 A.2d 272, 275 (1985) quoting Greenholtz, supra, 442 U.S. at 12, 99 S.Ct. at 2106.

In Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983), the United States Supreme Court discussed the standard for determining whether a protected liberty interest has been created by state law, stating:

A state creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show `that particularized standards or criteria guide the State's decisionmakers.'.... If the decisionmaker is not `required to base its decisions on objective and defined criteria,' but instead `can deny the requested relief for any constitutionally permissible reason or for no reason at all,' ... the State has not created a constitutionally protected liberty interest.

Id.

State regulations which place no substantive limitations on official discretion "create no liberty interest entitled to protection under the Due Process Clause." Olim, supra, 461 U.S. at 249, 103 S.Ct. at 1747. Accord: Kentucky, supra, 490 U.S. at 461-62, 109 S.Ct. at 1909.

A state creates a liberty interest protected by the Due Process Clause if it enacts statutes or regulations using "language of an unmistakably mandatory character, requiring that certain procedures `shall,' `will,' or `must' be employed and that ... certain measures will or will not be taken absent specified substantive predicates". Hewitt, supra, 459 U.S. at 471-72, 103 S.Ct. at 871.

If the decision-making process is...