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Defoy v. McCullough

January 4, 2005



Before: Nygaard, McKEE, and Weis, Circuit Judges.

The opinion of the court was delivered by: Nygaard, Circuit Judge


ARGUED MAY 11, 2004


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.


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.*fn1 Finally, the sentencing judge recommended 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.*fn2 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.

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 presented to the state courts in order to satisfy the exhaustion requirement."


We have jurisdiction over a District Court's final order dismissing a habeas petition pursuant to 28 U.S.C. §§ 2253 and 1291.


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 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 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 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.*fn3


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 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 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 ...

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