Coady v. Vaughn

Opinions of the United
2001 Decisions States Court of Appeals
for the Third Circuit

5-31-2001

Coady v. Vaughn
Precedential or Non-Precedential:

Docket 98-1311

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Filed May 31, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-1311

JOSEPH COADY
Appellant

v.

DONALD T. VAUGHN; THE DISTRICT A TTORNEY OF THE
COUNTY OF MONTGOMERY; THE ATTORNEY GENERAL
OF THE STATE OF PENNSYLVANIA

On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 97-cv-07498)
District Judge: Honorable John R. Padova

Argued December 10, 1998

Before: BECKER, Chief Judge, ST APLETON and WEIS,*
Circuit Judges

(Filed: May 31, 2001)

_________________________________________________________________
* Honorable Stanley S. Harris, United States District Judge for the
District of Columbia, who sat by designation on the original panel,
retired from the bench. The panel was reconstituted to substitute Hon.
Joseph F. Weis, Jr., in his stead.
 Nancy Winkelman (Argued)
Gillian Thomas
Schnader, Harrison, Segal & Lewis
1600 Market Street, Suite 3600
Philadelphia, PA 19103

Attorneys for Appellant

Kiersten M. Murray (Argued)
John O.J. Shellenberger
Office of the Attorney General of
Pennsylvania
21 South 12th Street
Philadelphia, PA 19107

Attorney for Appellees

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner Joseph Coady, a state prisoner incar cerated at
the State Correctional Institution at Grater ford,
Pennsylvania, appeals from the dismissal of his petition for
a writ of habeas corpus. Coady was convicted of rape and
indecent assault in the Montgomery County Court of
Common Pleas and sentenced to six to twelve years of
imprisonment, effective June 14, 1990. He became eligible
for parole on June 14, 1996, the date of expiration of his
minimum sentence. On August 19, 1996, the Pennsylvania
Board of Probation and Parole ("PBPP") reviewed his file and
denied his application for parole, specifying the following
grounds: substance abuse, habitual offender, assaultive
instant offense, very high assaultive behavior potential,
victim injury, petitioner's need for treatment, failure to
benefit from treatment program for sex offenders and
substance abuse, and an unfavorable recommendation
from the Department of Corrections. On September 16,
1997, the PBPP again reviewed Coady's file and denied his
application for many of the same reasons cited in their
1996 decision in addition to his need for continued
counseling and treatment and his multiple rape
convictions.

2
Shortly thereafter, Coady filed a petition for a writ of
habeas corpus challenging the PBPP's denial of his parole
as a violation of his rights under the United States
Constitution. He invoked the jurisdiction of the District
Court under 28 U.S.C. S 2254 and sought immediate
release from prison. A month later , Coady filed an amended
petition in which he predicated jurisdiction on 28 U.S.C.
S 2241(c)(3).

The Magistrate Judge to whom Coady's petition was
referred treated it as a Section 2241 petition and
recommended that it be dismissed for failur e to state a
claim. The District Court adopted the Magistrate Judge's
Report and Recommendation and dismissed the petition
without issuing a certificate of appealability. This timely
appeal followed. We appointed counsel to r epresent Coady,
who had previously been proceeding pr o se.

I.

Section 2253(c) of Title 28 provides in r elevant part:

(1) Unless a circuit justice or judge issues a certificate
of appealability, an appeal may not be taken to the
court of appeals from --

(A) the final order in a habeas corpus pr oceeding in
which the detention complained of arises out of pr ocess
issued by a State court, or

(B) the final order in a proceeding under section 2255.

Coady maintains that a certificate of appealability is not
a prerequisite to our entertaining his appeal. He advances
two alternative arguments in support of this proposition: (1)
that his petition, which challenges his denial of parole as
opposed to his conviction, is properly br ought under 28
U.S.C. S 2241, and Section 2253(c) does not r equire a
certificate in an appeal from the dismissal or denial of a
Section 2241 petition; and (2) that even if his petition is
properly brought under Section 2254, rather than Section
2241, Section 2253(c)(1) does not requir e a certificate
because "the detention complained of [in these
circumstances does not arise] out of pr ocess issued by a
state court." 28 U.S.C. S 2253(c)(1)(A). Additionally, Coady

3
insists that, even if a certificate were r equired, he is entitled
to have one issued because he has made "a substantial
showing of the denial of a constitutional right." 28 U.S.C.
S 2253(c)(2).

Respondent maintains that a certificate of appealability is
required, that there is no substantial showing of a
constitutional violation, and that Coady has, in any event,
failed to exhaust his state remedies.

II.

Section 2241 confers jurisdiction on district courts to
issue writs of habeas corpus in response to a petition from
a state or federal prisoner who "is in custody in violation of
the Constitution or laws or treaties of the United States."
28 U.S.C. SS 2241(a) and (c)(3).

Section 2254 confers jurisdiction on district courts to
issue "writs of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court . . . on
the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States." 28
U.S.C. S 2254(a).

It is a well-established canon of statutory construction
that when two statutes cover the same situation, the more
specific statute takes precedence over the more general one.
See Edmond v. United States, 520 U.S. 651, 657 (1997)
("Ordinarily, where a specific pr ovision conflicts with a
general one, the specific governs."); Preiser v. Rodriquez,
411 U.S. 475, 488-89 (1973) (holding that prisoner
challenging validity of his confinement on federal
constitutional grounds must rely on federal habeas corpus
statute, which Congress specifically designed for that
purpose, rather than broad language of Section 1983); West
v. Keve, 721 F.2d 91, 96 (3d Cir. 1983). The rationale for
this canon is that a general provision should not be applied
"when doing so would undermine limitations created by a
more specific provision." V arity v. Howe, 516 U.S. 489, 511
(1996). In the instant action, both Sections 2241 and 2254
authorize Coady's challenge to the legality of his continued
state custody. However, with respect to habeas petitions
filed by state prisoners pursuant to Section 2254, Congress

4
has restricted the availability of second and successive
petitions through Section 2244(b).1 Allowing Coady to file
_________________________________________________________________

1. Section 2244(b) provides:

(1) A claim presented in a second or successive habeas corpus
application under Section 2254 that was presented in a prior
application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus
application under Section 2254 that was not pr esented in a prior
application shall be dismissed unless--

(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by
the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light
of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

(3)(A) Before a second or successive application permitted by this
section is filed in the district court, the applicant shall move in
the
appropriate court of appeals for an order authorizing the district
court to consider the application.

(B) A motion in the court of appeals for an or der authorizing the
district court to consider a second or successive application shall
be
determined by a three-judge panel of the court of appeals.

(C) The court of appeals may authorize the filing of a second or
successive application only if it determines that the application
makes a prima facie showing that the application satisfies the
requirements of this subsection.

(D) The court of appeals shall grant or deny the authorization to
file
a second or successive application not later than 30 days after the
filing of the motion.

(E) The grant or denial of an authorization by a court of appeals
to
 file a second or successive application shall not be appealable and
shall not be the subject of a petition for r ehearing or for a writ
of
certiorari.

(4) A district court shall dismiss any claim pr esented in a second
or
successive application that the court of appeals has authorized to
be
filed unless the applicant shows that the claim satisfies the
requirements of this section.

5
the instant petition in federal court pursuant to Section
2241 without reliance on Section 2254 would cir cumvent
this particular restriction in the event that Coady seeks to
repetition for habeas relief and would thereby thwart
Congressional intent. Thus, applying the "specific governs
the general" canon of statutory construction to this action,
we hold that Coady must rely on Section 2254 in
challenging the execution of his sentence.

Having so concluded, we find it unnecessary to address
the validity of the proposition that no certificate of
appealability is required in a proceeding initiated under
Section 2241. We note only that if Coady is correct in
arguing that a certificate is not required in such a
proceeding, this would provide an additional reason for
holding that Congress has attached restrictions to Section
2254 proceedings that should not be cir cumvented by
permitting a petitioner to go forward under the more
general authority conferred by Section 2241.

In reaching our conclusion that Section 2254 is the
controlling statute in the circumstances before us, we are
not unmindful of the cases which hold that federal
prisoners challenging some aspect of the execution of their
sentence, such as denial of parole, may pr oceed under
Section 2241. This difference arises fr om the fact that
Section 2255, which like Section 2241 confers habeas
corpus jurisdiction over petitions from federal prisoners, is
expressly limited to challenges to the validity of the
petitioner's sentence.2 Thus, Section 2241 is the only
statute that confers habeas jurisdiction to hear the petition
of a federal prisoner who is challenging not the validity but
the execution of his sentence. See U.S. v. Addonizio, 442
_________________________________________________________________

2.Section 2255 provides in relevant part:

A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws
of
the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.

6
U.S. 178, 185-88 (1979) (holding that Section 2255
authorizes challenges to the lawfulness of a federal
sentence, not to the lawfulness of the perfor mance of
judgment and sentence); Bennett v. Soto, 850 F.2d 161,
162-63 (3d Cir. 1988) (holding that Section 2255 does not
encompass the power to entertain federal prisoner's claim
of wrongful revocation of parole); U.S. v. Kennedy, 851 F.2d
689, 691 & n.4 (3d Cir. 1988) (challenge to parole
commission's execution of federal sentence pr operly
challenged under Section 2241); U.S. v. Jalili , 925 F.2d 889,
893 (6th Cir. 1991) (challenge to place of imprisonment, not
fact of federal conviction, properly br ought under Section
2241); U.S. v. Mares, 868 F.2d 151, 151 (5th Cir. 1989)
(claim for credit for time served prior to date of federal
sentence must proceed under Section 2241). As we have
pointed out, Section 2254, in contrast to Section 2255,
confers broad jurisdiction to hear the petition of any state
prisoner "in custody in violation of federal law." Thus it is
unnecessary to proceed under the more general Section
2241 in order to consider a state prisoner's challenge to the
execution of his sentence.

III.

Having concluded that Coady must rely on Section 2254,
we turn to Coady's argument that Section 2253(c)(1) does
not require a certificate of appealability in a Section 2254
proceeding that challenges the constitutionality of a denial
of parole. Noting that Section 2253(c)(1) r equires a
certificate in a habeas proceeding br ought by a state
prisoner only where "the detention complained of arises out
of process issued by a State court," Coady asserts that the
decision of the parole board he challenges is neither
"process" nor "issued by a State court." While this assertion
may in fact be true, Coady misunderstands the application
of Section 2253(c)(1)(A). Under Section 2253(c)(1)(A), only
the "detention complained of" must arise out of process
issued by the state court. The state action alleged in the
petition to deprive the petitioner of his federal rights need
not itself be process issued by a state court. Because Coady
challenges his continued detention, which resulted initially
from a state court judgment, we hold that a certificate of
appealability is required before we can accept jurisdiction.

7
Our holding is consistent with the decisions of other
Courts of Appeals that have required certificates of
appealability where the petitioner is in custody pursuant to
a state court judgment even though the decision under
attack is not that judgment but its execution. See
Wildermuth v. Furlong, 140 F.3d 856, 857 n.2 (10th Cir.
1998) (noting Court's ability to review District Court's
denial of habeas petition filed by state prisoner challenging
denial of parole since District Court issued necessary
certificate); Else v. Johnson, 104 F .3d 82, 82-83 (5th Cir.
1997) (holding that petitioner's challenge to par ole board's
consideration of dismissed criminal charges satisfied
requirements for issuing a certificate of appealability);
Hallmark v. Johnson, 118 F.3d 1073, 1076-77 (1st Cir.
1997) (requiring certificate in challenge to ex post facto
application of state directive eliminating discretion of official
to restore previously forfeited good time credits), cert.
denied 522 U.S. 1003 (1997).

IV.

Our conclusion that a certificate of appealability is
required for this appeal to go forwar d does not compel
dismissal. Because Coady filed a timely notice of appeal, we
construe this notice as a request for a certificate of
appealability pursuant to Section 2253(c)(1) and Fed. R.
App. Proc. 22(b).3 Se e Miller v. N.J. State Dept. of
_________________________________________________________________

3. When Coady filed his notice of appeal, Federal Rule of Appellate
Procedure 22(b) provided:

In a habeas corpus proceeding in which the detention complained of
arises out of process issued by a State court, an appeal by the
applicant for the writ may not proceed unless a district or a
circuit
judge issues a certificate of appealability pursuant to section
2253(c)
of title 28, United States Code. If an appeal is taken by the
applicant, the district judge who render ed the judgment shall
either
issue a certificate of appealability or state the reasons why such
a
certificate should not issue. The certificate or the statement
shall be
forwarded to the court of appeals with the notice of appeal and the
file of the proceedings in the district court. If the district
judge has
denied the certificate, the applicant for the writ may then request
issuance of the certificate by a circuit judge. If such a request
is
8
Corrections, 145 F.3d 616, 617 (3d Cir. 1998) (construing
timely appeal as request for certificate of appealability).
Before this Court may issue a certificate of appealability,
petitioner Coady must make "a substantial showing of the
denial of a constitutional right," see 28 U.S.C. S 2253(c)(2),
and any such certificate must "indicate which specific issue
or issues" satisfy this requirement. See 28 U.S.C.
S 2253(c)(3). Accordingly, we now tur n to Coady's claims
that the denials of his parole violated substantive due
process and the ex post facto clause.

A.

Citing Block v. Potter, 631 F.2d 233 (3d Cir. 1980), Coady
insists that the decisions of PBPP violated substantive due
process because they were arbitrary and capricious. It is
not altogether clear to us why Coady regar ds these
decisions as arbitrary and capricious. It is clear to us that
the allegations of his petition do not make the r equired
showing.

The petition first alleges that the PBPP used
constitutionally impermissible criteria. W e find all of the
considerations mentioned in the decisions of the Board to
be rationally related to the issues befor e it, however, and
none to be foreclosed by the Constitution.

The petition also alleges that the challenged decisions
resulted from the Board's "applying erroneous descriptions
of the conduct underlying the offense." App. at 56.
However, federal courts are not authorized by the due
process clause to second-guess parole boar ds and the
_________________________________________________________________

addressed to the court of appeals, it shall be deemed addressed to
the judges thereof and shall be consider ed by a circuit judge or
judges as the court deems appropriate. If no express request for a
certificate is filed, the notice of appeal shall be deemed to
constitute
a request addressed to the judges of the court of appeals. If an
appeal is taken by a State or its representative, a certificate of
appealability is not required.

Fed. R. App. P. 22(b) (1998) (amended Apr . 24, 1998, effective Dec. 1,
1998).

9
requirements of substantive due pr ocess are met if there is
some basis for the challenged decision. Here, the petition
affirmatively alleges that the Board r elied upon the
presentence report in evaluating the underlying offense.
App. at 58 (the Board "considers the underlying nature of
the offense based on the official version which the Court of
Common Pleas had already considered when imposing the
definite sentence.").

Finally, while the petition alleges that the Boar d
considered false information, it does not specify the basis
for this allegation, and it is apparent fr om the petition that
Coady simply has a different opinion with respect to the
factors cited by the Board and believes it gave inadequate
weight to information about his institutional experience
tending to support his opinion.

We decline to issue a certificate of appealability with
respect to Coady's substantive due process claims.

B.

Article I, S10, of the Constitution prohibits the States
from passing any "ex post facto law." This clause forbids
enactment of any law "which imposes a punishment for an
act which was not punishable at the time it was committed;
or imposes additional punishment to that then pr escribed."
Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting
Cummings v. Missouri, 4 Wall. 277, 325-26 (1867)). The
prohibition of ex post facto laws has two purposes: (1) it
prevents legislatures from inter fering with the executive
and judicial roles of prosecution and punishment; and (2)
it assures that legislative acts give fair war ning of what
actions will be punished and the degree to which they will
be punished. In accord with these purposes, two critical
elements must be present before a court may find that
criminal or penal law violates the ex post facto clause: (1)
the law must be retrospective, applying to events occurring
before its enactment; and (2) it must disadvantage the
offender affected by it. See id. at 29; U.S. ex rel. D'Agostino
v. Keohane, 877 F.2d 1167, 1173 (3d Cir . 1989).

Coady alleges that between the time he committed his
offense and the time he was considered for parole, the

10
criteria for granting and denying parole underwent a
fundamental change as the result of (a) an internal policy
decision to require the affirmative agreement of three
reviewers to grant parole to "violent offenders," (b) a new set
of parole guidelines promulgated in 1990, (c) an
amendment to Pennsylvania's Parole Act in 1996, and (d)
an agreement between Pennsylvania and the federal
government under the Federal Violent Of fender and Truth-
in-Sentencing Program. The new parole guidelines are said
to operate not as "mere guideposts" but rather as criteria
qualifying under our jurisprudence as "laws" for the
purposes of the ex post facto clause. See United States ex
rel. Forman v. McCall, 709 F .2d 852-53 (3d Cir. 1983).
Coady emphasizes that in 1991, eighty percent of state
prisoners were released at the completion of their minimum
sentence while by the first quarter of 1996, that number
had fallen to twenty-nine percent.

We conclude that Coady has made a substantial showing
of the denial of a constitutional right and will issue a
certificate of appealability with respect to his ex post facto
claims. The finding of a substantial showing of the denial of
a constitutional right is a prerequisite to our consideration
of the procedural issues in an appeal under Section 2254.
See Morris v. Horn, 187 F.3d 333, 341 n.4 (3d Cir. 1999);
cf. Nichols v. Bowersox, 172 F .3d 1068, 1070 n.2 (8th Cir.
1999) (en banc) (holding that a substantial showing of a
constitutional right is not required befor e a court may grant
a certificate and review a procedural issue).

We cannot reach the merits of this claim because we
conclude that Coady has failed to exhaust his state
remedies. Under Section 2254, a writ of habeas corpus may
not be granted unless the applicant has exhausted
remedies available in state court or "unless there is an
absence of available corrective state pr ocess or state
remedies are ineffective." Morris, 187 F.3d at 337; 28 U.S.C.
S 2254(b)(1).

While exhaustion is mandated by Section 2254, it"has
developed through decisional law in applying principles of
comity and federalism as to claims brought under 28
U.S.C. S 2241." See Schandelmeier v. Cunningham, 819
F.2d 52, 53 (3d Cir. 1986). Exhaustion is not a

11
jurisdictional requirement but rather addr esses federalism
and comity concerns by "affor d[ing] the state courts a
meaningful opportunity to consider allegations of legal error
without interference from the federal judiciary." Vasquez v.
Hillery, 474 U.S. 254, 257 (1986) (citing Rose v. Lundy, 455
U.S. 509, 515 (1982)). The habeas petitioner has the
burden of proving exhaustion of all available state
remedies. See Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.
1993).

Our initial review of Pennsylvania law left us uncertain
whether any state process was available to r emedy Coady's
alleged injury.4 In the inter ests of judicial comity and
efficiency, we certified to the Pennsylvania Supreme Court
(pursuant to Pennsylvania Supreme Court Or der No. 197,
Judicial Administration, Docket No. 1, dated October 18,
1998) the following two questions:

1. May a person who has been denied parole fr om a
Pennsylvania sentence obtain review from a Pennsylvania
state court of a claim that the denial of par ole 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?

The Pennsylvania Supreme Court granted our petition for
certification and issued an opinion addressing the two
certified issues. The Supreme Court ther e advised that
where
_________________________________________________________________

4. The Pennsylvania Supreme Court's opinion in Rogers v. Pennsylvania
Board of Probation and Parole , 724 A.2d 319 (1999), had appeared to
foreclose the availability of direct r eview of claims that parole board
decisions violated the ex post facto clause. Nevertheless, we saw a
tension between our reading of Rogers and two decisions of the
Pennsylvania Commonwealth Court, Stewart v. Pennsylvania Board of
Probation and Parole, 714 A.2d 502, 509 (Pa. Commw. Ct. 1998)
(deciding an ex post facto clause claim on the basis that parole policies
are not "laws"), and Myers v. Ridge , 712 A.2d 791 (Pa. Commw. Ct.
1998) (considering the merits of an ex post facto clause claim in a
manner suggesting that constitutional and statutory violations relating
to parole decisions are appealable).

12
 discretionary actions and criteria are not being
contested but rather the actions of the boar d taken
pursuant to changed statutory requirements are being
challenged, an action for mandamus remains viable as
a means for examining whether statutory requir ements
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 par ole,
however, denial of parole would generally constitute a
discretionary matter that is not subject to r eview.

Coady v. Vaughn, 2001 Pa. LEXIS 567, at *6-7.

Coady asserts that the PBPP's application of the 1996
amendment to Pennsylvania's Parole Act to his case
violated his rights under the ex post facto clause of the
United States Constitution. Thus, he has clearly raised a
challenge to "actions of the board taken pursuant to
changed statutory requirements" and he clearly has a state
court remedy with respect to that claim which he has not
exhausted. It necessarily follows that Coady's was at least
a "mixed petition" and that the District Court properly
dismissed that petition for failure to exhaust. Rose v.
Lundy, 455 U.S. at 510.

Moreover, we note that our case law for ecloses a District
Court from excusing exhaustion "unless state law clearly
forecloses state court review of claims which have not
previously been presented to a state court." Lines v. Larkin,
208 F.3d 153, 163 (3d Cir. 2000) (emphasis in original).
Thus, in cases where there is any doubt about the
availability of a state remedy, the claim must be dismissed.
Id. This is relevant here for two r easons.

First it is not clear to us that the Pennsylvania Supreme
Court utilized the term "statutes" as narrowly as Coady
suggests. The Court may well have employed the phrase
"statutes governing parole" as synonymous with "laws
governing parole," and it is conceivable to us that the
Commonwealth Court will find that it has jurisdiction to
entertain Coady's other ex post facto claims.5
_________________________________________________________________

5. To persuade us that his claims based on the parole board policy are
cognizable under the ex post facto clause, Coady cites to the recent

13
Second, Justice Castille, in a concurring opinion,
expressed his belief that "a constitutional claim arising in
connection with a prisoner's continued confinement may be
cognizable under Pennsylvania's habeas corpus statute."
Coady, 2001 Pa. LEXIS 567, at *7. The availability of
habeas relief in this situation had not been ar gued to the
Court, however, and Justice Castille declar ed that he would
"await an actual case or controversy, with adversarial
presentations, to definitively resolve the question." Id. at
*27. Apparently, for the same reason, the opinion of the
Court does not comment on the availability of such r elief.
As a result, we do not read the Court's opinion as ruling
out the possibility of such relief.

CONCLUSION

We will issue a certificate of appealability with respect to
Coady's ex post facto claims. We will affir m the order of the
District Court dismissing his complaint, however , because
he has failed to exhaust all state remedies.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

decision of the United States Supreme Court in Garner v. Jones, 529
U.S. 244 (2000). In Garner, the Supr eme Court found that courts must
consider the practical effect of parole board policies in the course of
determining whether a statute violates the"ex post facto law" clause of
the Constitution. To the extent that Gar ner is instructive here, we
observe that Coady's constitutional arguments based upon the
pronouncements of the United States Supr eme Court should be equally
persuasive in the courts of Pennsylvania.

14