Roman v. DiGuglielmo

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 06-4644
_____________

MARTIN A. ROMAN,

Appellant

v.

DAVID DIGUGLIELMO, Superintendent;
PENNSYLVANIA BOARD OF
PROBATION AND PAROLE; THE DISTRICT
ATTORNEY OF THE COUNTY
OF PHILADELPHIA; THE ATTORNEY GENERAL OF
THE STATE OF PENNSYLVANIA

_____________

On Appeal from the District Court
for the Eastern District of Pennsylvania
(No. 2:05-cv-05771)
District Judge: Honorable Anita B. Brody
___________

Argued on October 5, 2011
Before: McKEE, Chief Judge, FUENTES and GREENBERG,
Circuit Judges

(Opinion Filed: April 4, 2012)

Mary Gibbons, Esq. (ARGUED)
600 Mule Road, #16
Toms River, NJ 08757

Attorney for Appellant

William H. Ryan, Jr.
Claudia M. Tesoro (ARGUED)
Calvin R. Koons
John G. Knorr, III
Office of the Attorney General
21 South 12th Street, 3d Floor
Philadelphia, PA 19107

Attorneys for Appellees

OPINION OF THE COURT

2
Fuentes, Circuit Judge:

Martin Roman was convicted of indecent assault and
corruption of a minor, both crimes involving his daughter,
and is currently a prisoner of the Pennsylvania Department of
Corrections. As part of his sentence, the State of
Pennsylvania recommended that Roman participate in a sex
offender treatment program. In order to do so, he is required
to admit that he committed the sex crime for which he was
convicted. Roman has refused to participate in the program
because, he contends, any such admission would constitute
compelled self-incrimination in violation of the Fifth
Amendment and would have compromised his then-pending
appeal of his sex offense conviction. Based on his refusal to
participate, Roman repeatedly has been denied parole. The
primary issue before us is whether the State‟s decision to
deny Roman parole, unless he admits his guilt and
participates in the sex offender treatment program, violates
his Fifth Amendment right against self incrimination. We
hold that it does not.

I.

In 1977 a jury found Roman guilty of two counts of
third-degree murder. He received an aggregate sentence of
15-30 years. Roman was released on parole in 1992, shortly
after his minimum release date. Eight years later, while still
on parole for the homicide conviction, Roman was accused of
inappropriately touching his six-year-old daughter. He was
charged with endangering the welfare of a child, corruption of
a minor, unlawful restraint, simple assault, recklessly
endangering another person, false imprisonment, and indecent
assault.

3
 Ultimately, Roman was convicted of indecent assault
and corruption of a minor in 2001, and was sentenced to serve
16-32 months in a state correctional facility, to be followed
by two years‟ probation. The sentencing report recommended
that he serve his sentence at a facility offering treatment for
“Sexual Offenders and Abusers.”

Following Roman‟s 2001 conviction, the Pennsylvania
Board of Probation and Parole (the “Board”) met and
determined that Roman‟s conduct violated the terms of his
parole from his homicide conviction. The Board ordered him
to serve backtime and the remainder of his sentence for
murder, pending parole, prior to beginning his sentence for
his 2001 conviction. The Board‟s decision stated that,
“[w]hile confined, [Roman] must comply with the
institution‟s prescriptive program requirements and have no
misconducts. [Roman] must participate in sex offender
treatment.” (App. 74.) Pennsylvania‟s sex offender treatment
program requires that an inmate admit guilt for the offending
conduct in order to participate. Roman says that he refused to
participate because admitting his guilt could have jeopardized
his then-pending appeal of his conviction for indecent assault
and corruption of minors.

The Board first denied Roman parole in August 2003,
following a hearing. In its decision, the Board considered
Roman‟s version of the nature and circumstances surrounding
his homicide offense,1 his prior history of parole failure, and
his unacceptable compliance with the sex offender treatment

1
It appears from the record that Roman continued to maintain
that the homicides for which he was convicted in 1977 were
acts of self-defense.

4
program prescribed to him in his sentencing. The Board
stated that in Roman‟s next review it would consider
“whether [Roman had] participated in/successfully completed
a treatment program for: sex offenders” and whether prison
officials still recommended him for parole. (App. 84.)

The Board denied Roman parole a second time in
August 2004, citing the same factors it relied on in its 2003
decision. It again listed Roman‟s failure to complete the
prison sex offenders program as one of the bases for its
decision, and again stated that it would consider whether he
had completed the program as part of its next review of his
eligibility for parole.

Roman sought review of these parole denials in the
Commonwealth Court of Pennsylvania, requesting a writ of
mandamus directing the Board to “correct [its] misapplication
of the law.” (App. 88.) The Court dismissed his petition,
finding that the Board had acted within the scope of its
discretion. Roman v. Pennsylvania Board of Probation and
Parole, No. 682 M.D. 2004 (Pa. Commw. Ct. Dec. 13, 2004).
The Pennsylvania Supreme Court affirmed that decision the
following year. Roman v. Pa. Bd. of Probation & Parole,
881 A.2d 1263 (Pa. 2005). Roman did not assert a Fifth
Amendment claim during either of those proceedings.

In November 2005, Roman filed a pro se petition for
habeas corpus in the Eastern District of Pennsylvania, arguing
that the Board “violate[d the] constitutional . . . protections of
the ex post facto clause when it ordered Mr. Roman to
participate in a sex offender program before considering his
parole application of the 1977 conviction in violation of the
Fifth and Fourteenth Amendments.” At the time he filed his
petition, Roman‟s appeal of his 2001 conviction for indecent

5
assault and corruption of minors was still pending in state
court.2

Roman‟s petition was assigned to a Magistrate Judge,
who issued a Report and Recommendation stating that
Roman had failed to exhaust his claims in state court, as
required under federal habeas law. In the alternative, he
found that Roman‟s petition failed on the merits. The
Magistrate Judge interpreted Roman‟s claim as an ex post
facto challenge and determined that, because Roman could
not demonstrate that a change in the law governing
Pennsylvania parole decisions had affected his sentence, his
claim failed.

2
Roman‟s appeal of his 2001 state court conviction for
indecent assault and corruption of a minor was denied in
February 2006, rendering his conviction final. No party has
suggested that this renders this case moot. Indeed, Roman
remains incarcerated and subject to the demands of the Board.
Assuming, arguendo, that Roman can show that the Board‟s
actions were unconstitutional and affected the length of time
he was required to remain incarcerated for his first sentence
for murder, our decision here would affect the length of time
remaining on that sentence and his release date. DeFoy v.
McCullough, 393 F.3d 439, 442 (3d Cir. 2005); cf. United
States v. Kissinger, 309 F.3d 179, 181 (2002) (stating that an
inmate who has been unconditionally released from prison
must demonstrate collateral consequences continuing from
the constitutional injury, lest her claim be rendered moot).

6
 In response, Roman filed an objection to the
Magistrate Judge‟s Report and Recommendation, more fully
articulating that the conditions on his parole were problematic
because, in order “to participate in a sex offender program,
which requires admission of the crime as a stepping stone for
admission [into the program],” Roman would be “require[d] .
. . to waive his Fifth Amendment[] rights against self
incrimination.” (App. 13.) Roman objected that he could not
waive those rights because he had yet to exhaust his
challenges to his 2001 state court conviction.
Notwithstanding Roman‟s objections, the District Court
adopted the Magistrate Judge‟s Report and Recommendation
and denied Roman‟s habeas claim.

In May 2007, this Court issued a certificate of
appealability pursuant to 28 U.S.C. § 2253(c) on two issues:
(1) “whether [Roman] ha[d] exhausted his claim that the
denial of parole based on his failure to complete the sex
offender treatment program violates his Fifth Amendment
right against self-incrimination with respect to a conviction
that is not final; and (2) if so, whether the denial of parole
violated [Roman‟s] right against self incrimination with
respect to the conviction that was not final.”

II.

The District Court exercised jurisdiction over Roman‟s
claims under 28 U.S.C. § 2254. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.

Where, as here, a district court dismisses a habeas
petition without first holding an evidentiary hearing, our
review is plenary. Palmer v. Hendricks, 592 F.3d 386, 392
(3d Cir. 2010). We review de novo all questions of law, and

7
consider all factual allegations in a light most favorable to the
petitioner to determine whether he has stated a cognizable
claim for habeas relief. Zettlemoyer v. Fulcomer, 923 F.2d
284, 291 (3d Cir. 1991). We then determine whether an
evidentiary hearing is necessary to develop the facts before
us. Id.

III.

A. Exhaustion Requirement

A federal court 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 doing so would be futile because state procedures
are unavailable or ineffective.” DeFoy v. McCullough, 393
F.3d 439, 442 (3d Cir. 2005) (quoting 28 U.S.C. § 2254(b)
(internal quotation marks omitted)). In order to satisfy the
futility exception to the exhaustion requirement, a petitioner
must show that the state remedy is so “clearly foreclosed” by
state law that we can “conclude with certainty” that state
courts afford no recourse for the claim. Lines v. Larkins, 208
F.3d 153, 165, 163 (3d Cir. 2000). Where, however, a
petitioner has failed to raise his claims in state court and we
find that some state process is available to address those
claims, notions of federalism and comity require that we
dismiss the habeas petition. DeFoy, 393 F.3d at 442.
Alternatively, we may bypass the exhaustion issue
altogether should we decide that the petitioner‟s habeas claim
fails on the merits. 28 U.S.C. § 2254(b)(2) (“An application
for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State.”); Taylor v.
Horn, 504 F.3d 416, 427 (3d Cir. 2007).

8
 Roman now argues that the exhaustion requirement is
no bar to his claim because, as this Circuit recognized in
DeFoy, 393 F.3d 439, Pennsylvania law affords no remedy
for claims challenging the constitutionality of a denial of
parole. Thus, he argues, any attempt to raise his argument in
state court would have been futile. 3 In response, the State
argues that DeFoy no longer controls because Commonwealth
Courts since that decision have adjudicated mandamus
actions involving parole denials by the Board and have
considered constitutional claims other than ex post facto
claims.

Because we will deny Roman‟s claims on the merits,
we need not address the issue of exhaustion in this case.
However, we pause to note that, to the extent there has been

3
In DeFoy, faced with a habeas petition similar to Roman‟s,
a district court dismissed the petitioner‟s Fifth Amendment
claims against the parole board as unexhausted because
DeFoy could have first filed a petition for a writ of mandamus
in the Pennsylvania state courts. 393 F.3d at 441. We
reversed, reading Pennsylvania‟s case law up to that point to
permit prisoners challenging the denial of parole to seek writs
of mandamus, but only under the ex post facto clause, and not
on other constitutional grounds. See id. at 444 (quoting
Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (“Absent a
change in the statutes governing parole, . . . denial of parole
would generally constitute a discretionary matter that is not
subject to review.”)). Therefore, we held that “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.” Id. at 444.

9
any shift in Pennsylvania law, we cannot comfortably say that
it is clear enough to alter our decision in DeFoy.4

B. Fifth Amendment Claim

The Fifth Amendment, as incorporated and made
applicable to the states through the Fourteenth Amendment,
provides that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. CONST. amend. V.
Though a prisoner already may have been convicted and
imprisoned for an offense, the Fifth Amendment still applies
to ensure that the individual not be compelled to bear witness
against himself or to divulge information that might
4
The availability of Pennsylvania mandamus review for
inmates challenging the denial of their parole on non-ex post
facto grounds remains unsettled. Though certain courts since
DeFoy have demonstrated some willingness to consider
constitutional claims outside the ex post facto context, none
have addressed or acknowledged the language that drove our
reading of Coady. See Nieves v. Pa. Bd. of Prob. & Parole,
995 A.2d 412, 418 (Pa. Commw. Ct. 2010) (substantive due
process and ex post facto); Wilson v. Pa. Bd. of Prob. &
Parole, 942 A.2d 270 (Pa. Cmwlth. Ct. 2008) (Fifth
Amendment in context of sexual offender rehabilitation
program); Dodgson v. Pa. Bd. of Prob. & Parole, 922 A.2d
1023, 1026 (Pa. Commw. Ct. 2007) (due process, equal
protection, Fifth Amendment, court access and ex post facto);
Nickson v. Pa. Bd. of Prob. & Parole, 880 A.2d 21, 13 (Pa.
Commw. Ct. 2005) (Eighth Amendment). But see Nieves,
995 A.2d at 421-22 (Leavitt, J., concurring) (citing Coady for
the proposition that “mandamus will not lie” in challenges to
the denial of parole and arguing that the court need not have
considered the claims before it at all).

10
incriminate him in future criminal proceedings. Minnesota v.
Murphy, 465 U.S. 420, 426 (1984). An individual trying to
make out a Fifth Amendment claim must demonstrate two
key elements: compulsion and use. Id.

Roman argues that the Board‟s decisions requiring that
he participate in the sex offender rehabilitation program
violated his right against self-incrimination under the Fifth
Amendment, since the Board effectively compelled him to
choose between admitting his guilt for a sexual offense—a
requirement for admission to the program—and relinquishing
his opportunity for parole. Roman further argues that, at the
time he filed this petition, his conviction for the sex offense
was not yet final and thus any admission he made could be
used against him in that appeal or in any future proceedings.
The State responds that Roman has not demonstrated a Fifth
Amendment violation because the consequences of his refusal
to participate in the program are not severe enough to
constitute compulsion under the Fifth Amendment. Further,
it argues that Roman is unable to show that his statements
were or would have been used against him in a criminal
proceeding, had he decided to participate in the program.

The record before us is not clear as to the extent to
which Roman‟s refusal to participate in the program was the
sole or primary cause of the Board‟s repeated refusal to grant
him parole. In each Board letter, it is listed as one among
several reasons for denying him parole, including his history
of previous failures under supervised release. However, even
assuming arguendo that the Board‟s refusal was the sole
driver of its decisions to refuse Roman parole, we hold that
the actions of the Board do not amount to “compulsion”
within the meaning of the Fifth Amendment.

11
 Though the privilege against self-incrimination “does
not terminate at the jailhouse door,” it is well established that
a “broad range of choices that might infringe constitutional
rights in a free society fall within the expected conditions of
confinement of those who have suffered a lawful conviction.”
McKune v. Lile, 536 U.S. 24, 36 (2002) (plurality opinion)
(Kennedy, J.). Thus, in circumstances such as these, where a
prisoner‟s liberties are already curtailed as a necessary and
essential element of his incarceration, that prisoner faces
unique challenges in demonstrating that a particular penalty
or punishment inflicts a constitutional injury upon him. In the
context of the Fifth Amendment, specifically, compulsion is
the linchpin of any such claim.

Where, as here, a prisoner argues that the
consequences of his refusal to participate in a prison program
that requires him to admit guilt violate the Fifth Amendment,
we must ask “whether the State‟s program, and the
consequences for non-participation in it, combine to create a
compulsion that encumbers” that prisoner‟s right against self-
incrimination. Id. at 35. Though drawing the distinction
between a lawful condition of confinement and a condition
that impermissibly encumbers a prisoner‟s rights can be
challenging, it is a distinction that rests on the difference
between merely pressuring or encouraging an inmate to
incriminate himself, and compelling him to do so through the
threat of consequences so “grave” as to leave him no choice
at all. See id. at 50 (O‟Connor, J., concurring).

The Supreme Court outlined the contours of this
analysis in McKune v. Lile, 536 U.S. 24 (2002). In that case
Lile, a convicted sex offender, brought a Fifth Amendment
challenge to Kansas‟ compulsory sex offender program,
which required him to admit guilt for his crime of

12
incarceration as well as any previous sex crimes. Id. at 29.
Under the Kansas program, any such admissions were not
privileged and could be used in future criminal proceedings.
Id. at 30. Lile, who was convicted of rape but had maintained
all along that the encounter was consensual, refused to admit
guilt and faced losing substantial prison privileges as a result.
In particular, prison officials threatened to restrict his
visitation rights, earnings, prison job opportunities, and
ability to send money to his family. Lile was also told he
would be moved to a maximum-security prison, which
necessarily entailed less comfortable living conditions and
housed more dangerous inmates, in order to make room for
prisoners who were willing to participate in the program. Id.
at 30-31.

In a fractured opinion, a plurality of the Court agreed
that Lile—though faced with a difficult choice between
asserting his right to remain silent and receiving the benefits
and comforts of the prison conditions then afforded to him—
had failed to demonstrate that the reduction in his prison
privileges rose to the level of compulsion proscribed under
the Fifth Amendment. Id. at 46-48. The plurality opinion,
authored by Justice Kennedy, distinguished the punishment
meted against Lile from the “so-called penalty cases” in
which the Court had previously held that consequences
involving the loss of employment or professional reputation
were sufficient to constitute compulsion under the Fifth
Amendment. Those cases, the plurality wrote, involved free
citizens, not already subject to the limitations of prison life,
and were thus “not easily extended to the prison context.” Id.
at 40 (citing Garity v. New Jersey, 385 U.S. 493 (1967);
Spevak v. Klein, 385 U.S. 511, 516 (1967)). Instead, the
plurality applied a very stringent test that required that the

13
inmate demonstrate the imposition of “atypical and
significant hardships on [inmates] in relation to the ordinary
incidents of prison life.” Id. at 37 (adopting the test for due
process claims established in Sandin v. Conner, 515 U.S. 472
(1995)). In effect, the plurality‟s test limited compulsion to
instances not served by a legitimate penal interest, where the
punishment actually lengthened a prisoner‟s sentence or
altogether denied him eligibility for good-time credits or
parole. Id. Justice Stevens, joined by Justices Souter,
Ginsburg and Breyer, dissented, urging that the Court adopt a
much broader test which recognized that the threat of
revoking privileges was sufficient to trigger the Fifth
Amendment, absent some grant of immunity assuring that the
statements could not be used against the prisoner. McKune,
536 U.S. at 59, 69-70 (Stevens, J., dissenting).

Justice O‟Connor, whose opinion controls,5 concurred
on narrow grounds, agreeing with the plurality‟s judgment
that Lile‟s Fifth Amendment claim failed but agreeing with
the dissent that “the Fifth Amendment compulsion standard is
broader than the „atypical and significant hardship‟ standard
[the Court had] adopted for evaluating due process claims in
prisons.” Id. at 48 (O‟Connor, J., concurring).

5
Marks v. United States, 430 U.S. 188 (1977); see also
United States v. Naranjo, 426 F.3d 221, 231 (3d Cir. 2005)
(When “no one view garners a majority of the Justices . . . the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the
narrowest grounds.” (internal quotation marks and citations
omitted)).

14
 Justice O‟Connor did not, herself, state a particular test
for determining what degree of penalty amounts to
compulsion in the prison context. She noted, however, that a
proper inquiry should “recognize that it is generally
acceptable to impose the risk of punishment, however great,
so long as the actual imposition of such punishment is
accomplished through a fair criminal process” and so long as
it stops short of punishments such as “longer incarceration or
execution”—penalties that “would surely implicate a „liberty
interest.‟” Id. at 53, 52 (citing McGautha v. California, 482
U.S. 183, 213 (1971)). Importantly, under Justice
O‟Connor‟s analysis, the “Fifth Amendment does not prohibit
all penalties levied in response to a person‟s refusal to
incriminate himself or herself . . . . Not all pressure
necessarily „compels‟ incriminating statements.” Id. at 49;
see also Ohio v. Woodward, 523 U.S. 272, 286 (1998) (noting
in the context of voluntary clemency hearings that “it has
never been suggested that such pressures constitute
„compulsion‟ for Fifth Amendment purposes”); McGautha,
402 U.S. at 213 (noting that a criminal defendant is often
faced with “the making of difficult judgments as to which
course to follow” but that “the Constitution does not . . .
always forbid requiring him to choose”).

Though the prison in McKune threatened to restrict
Lile‟s privileges and transfer him to less comfortable
accommodations, Justice O‟Connor found it instructive that
he would still be provided with basic necessities—food and
shelter, and would still “retain[] the ability to see his attorney,
his family, and members of the clergy.” McKune, 536 U.S. at
51. Nor had Lile shown that the consequences of his refusal
to incriminate himself were more restrictive than the same
sanctions applied to discipline any inmates who refused to

15
comply with any number of prison requirements, or that that
the transfer to another prison would result in bodily harm. Id.
Instead, because Lile‟s confinement already, by definition,
subjected him to such conditions, the consequences of his
refusal to speak were punishments within the scope of his
conviction, rather than “stark[] . . . government attempts to
compel testimony.” Id. at 53; see also id. at 50
(distinguishing penalties imposed upon Lile from the more
severe penalties inflicted on individuals outside the context of
the prison environment).

There is no precedent in our Circuit that interprets or
applies McKune, or that governs the case before us. Since
McKune, several of our sister circuits have confronted cases
similar to the one at hand, and have faced the challenge of
interpreting and applying that decision to the facts before
them. However, to the extent these circuits have attempted to
articulate a standard that governs these cases, the results have
been varied.6 In Ainsworth v. Stanley, the First Circuit,
noting that McKune provided “no clear guideposts,”
“resort[ed] to [its] own sound judgment” in denying the Fifth
Amendment claim before it. 317 F.3d 1, 4 (1st Cir. 2002).
The court adopted its own pre-McKune test, which it found
consistent with that decision, and evaluated whether the
burden imposed by the sex offender treatment program was

6
Notably, some have taken McKune at face value, relying on
factual comparisons alone in reaching a conclusion. See, e.g.,
Reed v. McKune, 298 F.3d 946 (10th Cir. 2002) (relying
solely on comparison with facts in McKune in dismissing a
similar case levied against the same rehabilitation program
evaluated in McKune); Searcy v. Simmons, 299 F.3d 1220
(10th Cir. 2002) (same).

16
“unreasonable” in light of the state‟s interest and the
availability of other, less burdensome means of achieving that
interest. Id. at 5 (dismissing Fifth Amendment claim
involving New Hampshire‟s sex offender treatment program).
In contrast, in United States v. Antelope, the Ninth Circuit
stated that “the status of the person claiming the Fifth
Amendment privilege” or the “severity of the penalty
imposed” are not, alone, determinative. 395 F.3d 1128, 1137
(9th Cir. 2005). Instead, it placed a premium on the state‟s
purpose in imposing the penalty and on the extent to which
the penalty went beyond that already imposed by fair criminal
process. Id. at 1137 (finding Fifth Amendment violation
where District Court actually lengthened term of
probationer‟s supervised release based on his refusal to
submit to repeat polygraph tests asking whether he had
engaged in prohibited sexual conduct).

Thus, in light of the lack of clear consensus from other
circuits and because Justice O‟Connor‟s controlling opinion
in McKune stops short of articulating its own test, we are
tasked with the responsibility of distilling the core principles
of that decision. To that end, we note that three things are
abundantly clear:

First, a state program that requires an inmate to
incriminate himself solely for the purposes of gathering
incriminating statements against him will not pass
constitutional muster. While the conditions inherent to
imprisonment may alter our definition and application of
“compulsion” under the Fifth Amendment, a state wielding its
control over an inmate solely as “mere subterfuge for the
conduct of a criminal investigation,” is the very sort of
conduct that the Fifth Amendment is intended to prohibit.
McKune, 536 U.S. at 34; id. at 41 (discussing “elaborate

17
attempt” to avoid Fifth Amendment protections); id. at 53
(O‟Connor, J., concurring) (distinguishing Kansas‟ program
from “stark[] . . . government attempts to compel testimony”);
id. at 68 (Stevens, J., dissenting) (conceding that the state‟s
interest in rehabilitation is persuasive, but arguing that the
state‟s need does not justify overriding Fifth Amendment
protections). Thus, the statement sought—whether the inmate
decides to speak or to remain silent—must be tethered to
some independent, legitimate state purpose, such as
rehabilitating inmates convicted of certain crimes. The more
attenuated the relationship between the two, the greater our
concern that the penalty is indicative of a state attempt to
wield its power in an impermissible manner.

Second, it is undisputed by the plurality, the
concurrence and the dissent that, in the event the penalty
imposed does amount to an atypical and significant hardship
on the petitioner‟s prison conditions, that penalty is
sufficiently compelling to constitute a Fifth Amendment
violation. While the plurality opinion treats this standard as
the minimum showing necessary under the Fifth Amendment,
id. at 37, both Justice O‟Connor and the dissent advocate for a
more flexible, permissive standard, albeit to varying degrees.
Id. at 48-49 (O‟Connor, J., concurring); id. at 59, 69-70
(Stevens, J., dissenting). It thus stands to reason that a
prisoner who demonstrates that the consequences of his
refusal to incriminate himself inflict an atypical and
significant hardship on the conditions of his incarceration has
made a sufficient, though not a necessary, showing under the
Fifth Amendment.

Third, and relatedly, in light of Justice O‟Connor‟s
opinion, it is clear that there exists some realm of penalties
just short of those that amount to atypical and significant

18
hardships, which, given the context, are sufficient to
constitute compulsion. The distinction between an
impermissible penalty and a mere consequence requires that
we examine the penalty assessed in light of the conditions and
restrictions already incumbent on the confinement itself. Id.
at 51 (O‟Connor, J., concurring).

Thus, under McKune, those penalties that merely alter
the degree of comfort or freedom that an inmate is afforded,
within the context of his confinement, but that otherwise
remain within the permissible bounds of the inmate‟s
prescribed sentence, are differences in measure alone and thus
do not amount to compulsion under the Fifth Amendment.
See id. at 51-54. In contrast, penalties that go beyond the
mere “unpleasant” and are different in kind than those
conditions of confinement imposed on all prisoners—that
strike at the core of an inmate‟s recognized entitlements, that
threaten his bodily safety, or that impose additional
punishment beyond that already imposed by fair judicial
process—constitute impermissible compulsion under the Fifth
Amendment. Id. at 51.

In light of this analysis, Roman‟s Fifth Amendment
claim fails because the consequence he faces—the repeat
denial of parole for refusing to participate in the sex offender
rehabilitation program—does not rise to the level of
compulsion necessary to violate the Fifth Amendment.

Roman has no right or entitlement to parole under
Pennsylvania law. Commonwealth v. Brittingham, 275 A.2d
83, 85 (Pa. 1971). His sentence has not been lengthened, nor
have the actual conditions of his imprisonment been altered.
Cf. Antelope, 395 F.3d at 1138 (finding it determinative that
defendant was “sentenced to a longer prison term for refusing

19
to comply with [the rehabilitation program‟s] disclosure
requirements”). At most and reading the facts he has plead in
his favor, Roman—in deciding to assert his right to remain
silent and thereby refusing to participate in the sex offender
rehabilitation program—has forfeited his opportunity for
early release on his 1971 murder sentence, the terms of which
were imposed following full and fair criminal proceedings.
See McKune, 536 U.S. at 53 (O‟Connor, J., concurring);
Searcy, 299 F.3d at 1226 (describing loss of good-time
credits, which are permissive but not guaranteed, as a loss of
an “opportunity” for early release); see also Ohio v.
Woodward, 523 U.S. at 286-88 (“It is difficult to see how a
voluntary interview could „compel‟ respondent to speak . . . .
[The] pressure to speak in the hope of improving his chance
of being granted clemency does not make the interview
compelled.”). Nor is the penalty itself unique in its nature or
severity: An inmate in Pennsylvania may be denied parole
for many forms of misbehavior or violation of prison policies,
all of which are designed to ensure order in the prison or to
further the state‟s legitimate interest in rehabilitation. See
McKune, 536 U.S. at 52 (O‟Connor, J., concurring) (drawing
a distinction between typical sanctions and those sanctions so
unique as to arise to a higher level of coercion).

Moreover, the nature of the penalty in this case is in no
way suggestive of the “stark[] . . . government attempts to
compel testimony” relied on by previous cases in fleshing out
the scope of the Fifth Amendment. Id. at 53. Though the
Board refused Roman parole, that consequence flowed
naturally from his decision not to participate in an established
prison program designed to further Pennsylvania‟s legitimate
interest in rehabilitating inmates, such as Roman, who have
been convicted of sexual offenses. Id.; see also id. at 37-38

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(Kennedy, J.) (discussing state‟s legitimate interest in
compelling inmate participation in rehabilitative programs);
Ainsworth v. Stanley, 317 F.3d 1, 5 (1st Cir. 2002) (same).
Whether we view the Board‟s focus on Roman‟s participation
in the program as a measure of his fitness for parole, or as a
condition of parole, it stands to reason that a state may offer
an incentive for participation in such rehabilitative
programs—here, the opportunity for early release—without
obligating itself to reward an inmate who chooses not to
participate because he considers that reward outweighed by
the cost. Cf. Allison v. Snyder, 332 F.3d 1076, 1080 (7th Cir.
2003) (noting, in context of similar § 1983 claim that
prisoners can refuse to participate in the treatment program,
and that “[t]his may make it harder to show that their
problems are behind them, that release is in order, and that the
criminal charges should be dismissed, but this does not make
the choice any less willing or intelligent” (citing United States
v. Klotz, 943 F.2d 707, 710-11 (7th Cir. 1991))).

While we do not dispute that Roman was, in this case,
presented with an exceedingly difficult choice, the law is
clear that it is a choice he may be forced to make. We
therefore hold that Roman‟s Fifth Amendment claim fails on
the merits.

IV.

For the reasons stated above, we will affirm the
District Court‟s order dismissing Roman‟s habeas petition.

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