Opinion
Civil Action No. 04-185J.
May 8, 2006
Report and Recommendation
Recommendation
Petitioner is incarcerated at S.C.I. Houtzdale, and has filed a petition under 28 U.S.C. § 2254, alleging that the Pennsylvania Board of Probation and Parole's denial of parole to him violates the Ex Post Facto Clause of the constitution. I recommend that the petition be denied as unexhausted, and a certificate of appealability denied.
Report
Petitioner is serving an 5-20 year sentence imposed by the Court of Common Pleas of Huntingdon County in 1992. docket no. 1, Petition at 3; docket no. 12, Response, Exhibit 1. Petitioner became eligible for parole in 1996, but was denied parole in 2003, 2004, and 2005, for a number of reasons stated by the Pennsylvania Board of Probation and Parole on its "green sheet." docket no. 12, Response, Exhibits 2, 3, 4. The reasons given by the Board differ from denial to denial, and petitioner claims that his denial of parole really is due to the Board's violation of the Ex Post Facto Clause, because the Board is applying the post-1996 version of the statute governing parole, 61 P.S. § 331.1, to petitioner's pre-1996 conviction. Petitioner, like many others, relies on the Court of Appeals for the Third Circuit's decision inMickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003) (Mickens-Thomas I), which held that the 1996 statutory amendment of Pennsylvania's Probation and Parole Act, 61 P.S. §§ 331.1-331.34a, had altered the standards used by the Pennsylvania Board of Probation and Parole in considering parole and had, in the unique circumstances presented by the petitioner inMickens-Thomas I, been applied in a manner which violated the Ex Post Facto Clause.
Exhaustion
The respondent defends on the basis that petitioner has not exhausted his state court remedies. Before reaching the merits of petitioner's Ex Post Facto Clause claim, the requirement of exhaustion of state remedies applies: a petitioner cannot obtain a writ of habeas corpus in federal court unless he has first exhausted his claim in the state courts by fairly presenting the substance of the federal claim to each available level of the state court, or shown that there is no available state remedy.See 28 U.S.C. § 2254 (b) (1). Petitioner admits, docket no. 1, Petition at 8-12, that he has made no effort to bring his Ex Post Facto Clause claim to the attention of the state courts, but contends that he is excused from doing so because it would be futile, because the Pennsylvania courts have consistently rejected Ex Post Facto Clause challenges to post-1996 parole denials.
An inmate denied parole by the Pennsylvania Board of Probation and Parole can bring a petition for a writ of mandamus raising an Ex Post Facto Clause claim in the Pennsylvania Commonwealth Court. See e.g. Sheffield v. Pennsylvania Board of Probation and Parole, 894 A.2d 836 (Pa.Cmwlth. 2006). Even if the state courts had in the past held that there was no Ex Post Facto Clause violation in applying the post-1996 amendments, see Cimaszewski v. Pennsylvania Board of Probation and Parole, 868 A.2d 416 (Pa. 2005) (overruling Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 634 (Pa. 2003)), there is no "futility-based exception" to exhaustion as petitioner uses that term. The futility exception to exhaustion, as the term "futility" is used by the Court of Appeals for the Third Circuit, refers to cases in which state court remedies are no longer available because of a procedural rule with which a petitioner cannot comply. See e.g. Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000); Lambert v. Blackwell, 137 F.3d 506, 518-19 (3d Cir. 1997). If pursuing a state remedy is futile because the remedy is no longer available, this futility does not excuse exhaustion and direct the federal court to consider the claim on its merits, it directs the federal court to dismiss the petitioner's claim as procedurally defaulted unless he can show cause for his default attributable to the State, and prejudice.
Petitioner uses "futility" to mean that if the state court is hostile to all (or perhaps even a majority of) similar claims, he need not advance that claim in state court at all. This is incorrect, as the courts which have encountered this claim have held, both in this circuit, Parker v. Kelchner, 429 F.3d 58, 63 (3d Cir. 2005) ("[W]e agree with our sister Circuits that have reasoned that likely futility on the merits does not excuse a failure to exhaust a claim in state court.") and elsewhere, see e.g. Parson v. San Quentin Prison Warden, 158 Fed.Appdx. 814, 815 (9th Cir. 2005) ("[E]ven if the California Supreme Court has previously rejected the same federal constitutional challenges in other cases involving different petitioners, Mr. Parson would still be required to exhaust his state remedies. See Engle v. Isaac, 456 U.S. 107, 130, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) (rejecting futility argument because state courts may reconsider previous holdings).") Because petitioner has always had a state forum for his Ex Post Facto Clause claim, regardless of his likelihood of success on the merits in that forum, petitioner cannot proceed here until he has exhausted that remedy.
The petitioner's petition should be dismissed as unexhausted. No certificate of appealability should issue.
Pursuant to 28 U.S.C. § 636 (b) (1), the parties are given notice that they have ten days to serve and file written objections to this Report and Recommendation.