Opinion
Civil Action No. 04-2064.
September 13, 2004
REPORT AND RECOMMENDATION
Presently before the Court is a pro se Petition for Writ of Habeas Corpus filed by the Petitioner, Micheal Murphy ("Petitioner"), pursuant to 28 U.S.C. section 2254. The Petitioner is currently incarcerated in the State Correctional Institution at Frackville, Pennsylvania. For the reasons that follow, it is recommended that the Petition should be denied with prejudice and dismissed without an evidentiary hearing.
This information is taken from the Petition for Writ of Habeas Corpus, the Response, and the exhibits attached to those pleadings.
On January 20, 1995, Petitioner was sentenced to a term of not less than seven nor more than fourteen years imprisonment for an aggravated assault conviction. Petitioner's minimum sentence date was February 5, 2001, and his maximum sentence date is February 5, 2008. Petitioner was denied parole by the Pennsylvania Board of Probation and Parole ("PBPP") on November 22, 2000, and October 23, 2003. The October 23, 2003 notice indicated that Petitioner would be reviewed in or after September, 2004. The PBPP indicated that it would consider at that September, 2004 review: (1) whether Petitioner maintained a favorable recommendation for parole from the Department of Corrections; (2) whether Petitioner maintained a clear conduct record and completed the Department of Corrections' prescriptive program(s); (3) Petitioner's efforts to secure an approved home plan; and (4) an updated psychological evaluation. See Resp., Ex. C.
The November 22, 2000 notice read:
Following an interview and review of your file, the PBPP has determined that the fair administration of justice cannot be achieved through your release on parole. You are therefore refused parole and ordered to: Be reviewed in or after November, 2003. At your next interview, the Board will review your file and consider:
whether you have successfully completed a treatment program for: substance abuse.
whether you have received a favorable recommendation for parole from the Department of Corrections.
whether you have maintained a clear conduct record and completed the Department of Corrections' prescriptive program(s).See Resp., Ex. B.
The Notice related to the October 23, 2003 hearing stated:
Following an interview with you and a review of your file, and having considered all matters required pursuant to the parole act of 1941, as amended, 61 P.S. § 331.1 et seq., the Board of Probation and Parole, in the exercise of its discretion, has determined at this time that: your best interests do not justify or require you being paroled/reparoled; and, the interests of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time. The reasons for the Board's decision include the following:
Your lack of remorse for the offense(s) committed.
Reports, evaluation and assessments concerning your physical, mental and behavior condition and history.
Your need to participate in and complete additional institutional programs.
Your failure to develop an approved release plan.
Your interview with the hearing examiner and/or Board member.
See Resp., Ex. C.
Petitioner filed a petition for writ of mandamus in the Commonwealth Court of Pennsylvania on May 14, 2003, following the November 22, 2000 denial of his first parole, but before the PBPP's denial of his second parole application on October 23, 2003. The mandamus petition alleged an ex post facto claim arising from the 1996 amendment to the policy statement of the Pennsylvania Parole Act. The Commonwealth Court granted Petitioner's motion to proceed in forma pauperis on May 21, 2003, and on July 1, 2003, the PBPP filed preliminary objections to the mandamus petition. On July 9, 2003, the Commonwealth Court sustained the PBPP's objections and ordered Petitioner to file an amended petition in conformity with the Pennsylvania Rules of Appellate Procedure, or the petition would be dismissed. On August 20, 2003, because Petitioner did not file an amended petition, the Commonwealth Court dismissed the petition. Petitioner did not appeal that order or take any further action in state court.
On May 13, 2004, Petitioner filed the instant pro se Petition. The Honorable Clarence C. Newcomer referred it to this Court for preparation of a Report and Recommendation on June 4, 2004. The Response was filed on July 29, 2004. Respondents contend that the claim in the Petition has not been exhausted in the state court, and, at a minimum, the Petition should be dismissed without prejudice. They also argue that, even if Petitioner has exhausted his state court remedies, his allegation that the PBPP violated the Ex Post Facto Clause is meritless and should be denied.
II. DISCUSSION.
Petitioner must first exhaust his remedies in state court before this Court may grant habeas relief. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). It is the habeas petitioner's burden to show that all of the claims alleged have been "fairly presented" to the state courts, which demands that the federal court claims must be the "substantial equivalent" of the claims presented in state court. Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied, 459 U.S. 1115 (1983). If a petition is unexhausted in the state courts, the federal court should dismiss the petition without prejudice or else risk depriving the state courts of the "opportunity to correct their own errors, if any." Toulson v. Beyer, 987 F.2d 984, 989 (3d Cir. 1993).
Pursuant to 28 U.S.C. section 2254(b)(1)(B), exhaustion of state remedies may be excused when there is an absence of remedies available to the petitioner or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1)(B). Here, Petitioner claims that the denial of his parole is in violation of the Ex Post Facto Clause of the United States Constitution, and that when the PBPP reviewed his parole application, it applied the parole policies formulated in 1996 which were different from and harsher than those in effect at the time of his offense and conviction. In order to circumvent his failure to fully exhaust his claim in the state courts, Petitioner argues that any pursuit of his claim in state court would be futile because of the Pennsylvania Supreme Court rulings in Winklespecht v. Pa. Bd. of Prob. Parole, 813 A.2d 688 (Pa. 2002), and Finnegan v. Pa. Bd. of Prob. Parole, 838 A.2d 684 (Pa. 2003). Respondents contend that this argument is speculative at best and belies Petitioner's failure to amend his petition and then present it to the Commonwealth Court for disposition, as he was directed by that court.
In Winkelspecht v. Pa. Bd. of Prob. Parole, 813 A.2d 688 (Pa. 2002), which was decided just prior to the Third Circuit's decision in Mickens-Thomas, the Pennsylvania Supreme Court held that the 1996 amendments to the parole policy did not change Pennsylvania policy regarding the criteria considered for parole eligibility. Id. at 692. The Winklespecht court stated that "[t]he rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense." Id. at 691.
The Pennsylvania Supreme Court held in Finnegan v. Pa. Bd. of Prob. Parole, 838 A.2d 684 (Pa. 2003), that "the 1996 revision of § 331.1 of the Parole Act does not violate the ex post facto clause when applied to a prisoner convicted prior to the revision." Id. at 690. The Finnegan court held that:
[a]lthough the phrases `protect the safety of the public' and `assist in the fair administration of justice' were added in 1996, these concepts have always been underlying concerns. Both versions of § 331.1 leave the grant of parole within the discretion of the Board. Adding language which clarified the policy underlying the parole process does not make appellant's punishment more severe; his maximum sentence remains the same.Id. at 688 (citation omitted). The Finnegan court also held that the PBPP's guidelines are an aid to for the PBPP's exercise of its discretion. Id. at 690 (citation omitted).
A petition containing an unexhausted claim should not be denied on the merits unless "it is perfectly clear that the applicant does not raise even a colorable federal claim."Lambert v. Blackwell, 134 F.3d 506, 514-515 (3d Cir. 1998),cert. denied, 532 U.S. 919 (2001) (quoting Granberry v. Greer, 481 U.S. 129, 135 (1987)). The Pennsylvania Supreme Court has "exclusive jurisdiction of appeals from final orders of the Commonwealth Court entered in any matter which was originally commenced in the Commonwealth Court." See 42 Pa. C.S.A. § 723(a). Under 42 Pa. C.S.A. section 5105(a) and Pennsylvania Rule of Appellate Procedure 1101(a), Petitioner maintains a right of appeal from the Commonwealth Court to the Pennsylvania Supreme Court. Despite the availability of this state remedy, Petitioner made no attempt to present his claims to the Pennsylvania Supreme Court. Thus, under O'Sullivan, 526 U.S. 838, this claim remains unexhausted.
Petitioner is most likely barred from procedural and substantive relief in state court, however, and dismissal of this Petition for the purpose of exhausting his claims would be futile. Fripp v. Superintendent Meyers, No. 03-4942, 2004 WL 1699071, at *5 (E.D. Pa. July 28, 2004) (citations omitted). Petitioner's claims are therefore procedurally defaulted in this Court. See 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 735 (1991). In order to excuse the procedural default and avoid dismissal of the Petition, Petitioner must meet the cause and prejudice requirement or must show that this Court's failure to consider his claims will result in a fundamental miscarriage of justice. See 28 U.S.C. § 2254(b)(1)(B);Coleman, 501 U.S. at 750. Petitioner has provided no support for any theory that objective factors, external to the defense, prevented either his timely amendment of the mandamus petition or his timely appeal of the dismissal of his mandamus petition to the Pennsylvania Supreme Court. Thus, the Petition can be dismissed on procedural grounds.
Requiring a prisoner to pursue all available state remedies is favored, but a prisoner's failure to do so "is not an absolute bar to appellate consideration of his claims." Granberry v. Greer, 481 U.S. 129, 131 (1987). This Court can deny a meritless claim. See Fripp, 2004 WL 1699071, at *6 (citing 28 U.S.C. § 2254(b)(2) and Burkett v. Love, 89 F.3d 135, 138 (1996)). Thus, the merits of this Petition are hereafter addressed.
"To fall within the ex post facto prohibition," according to the United States Supreme Court, "a law must be retrospective — that is it must apply to events occurring before its enactment — and it must disadvantage the offender affected by it by altering the definition of criminal conduct or increasing the punishment for the crime." Lynce v. Mathis, 117 S.Ct. 891, 896 (1997) (citation and quotation omitted). Petitioner contends that the PBPP, in reviewing his parole applications, improperly and retroactively applied the 1996 amendment to the parole policy statement, thereby altering the criteria under which he, as an inmate convicted before 1996, had his parole application reviewed. Petitioner apparently challenges both of his parole denials. This Court, however, will focus solely on his October 2003 parole denial because any alleged problems with his November 2000 parole hearing and denial were rendered moot by the second parole review in October, 2003. Thus, the October 2003 decision is only ripe for consideration.
It appears that Petitioner relies on Mickens-Thomas v. Vaughn, 321 F.3d 374 (3d Cir. 2003), to support his claim. Respondents contend that even if Petitioner had exhausted his state court remedies, his ex post facto claim is meritless. TheMickens-Thomas case involved an inmate who was serving a life sentence for the 1964 rape and murder of a twelve year-old who had his sentence commuted by the Pennsylvania Pardons Board and the governor. Id. at 376-377. The PBPP denied Mickens-Thomas' applications for parole, and he alleged the denial of his parole was based more upon the 1996 amendment to the introductory language of the parole statute which allegedly tightened the standards for parole, than the parole guidelines in effect when he was convicted. Id. at 383.
The United States Court of Appeals for the Third Circuit held that Mickens-Thomas was entitled to a parole hearing based upon the pre-1996 guidelines. Id. at 390-391, 393. The Third Circuit found that the PBPP's denial of the parole application violated the Ex Post Facto Clause since it appeared that the 1996 amendment to 61 P.S. section 331.1 had changed the standards under which parole is granted or denied in Pennsylvania, and the application had been evaluated under these new standards. The court concluded "to retroactively apply changes in the parole laws made after conviction for a life sentence in Pennsylvania that adversely affect the release of prisoners whose sentences have been commuted, violates the Ex Post Facto clause." Id. at 393.
Section 1 of the Parole Act was amended in 1996, and the complete statute reads as follows:
The parole system provides several benefits to the criminal justice system, including the provision of adequate supervision of the offender while protecting the public, the opportunity for the offender to become a useful member of society and the diversion of appropriate offenders from prison. In providing these benefits to the criminal justice system, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control, and treatment of paroled offenders.61 P.S. § 331.1. From 1941 through 1996, the statute provided that:
The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment, and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.61 P.S. § 331.1 (pre-1996 version).
In Mickens-Thomas, the Third Circuit acknowledgedWinklespecht, but explained that Winklespecht was decided after Mickens-Thomas' parole consideration. Therefore, the PBPP had the benefit of the Pennsylvania Supreme Court's analysis of the 1996 amendments to the Parole Act following Winkelspecht, and the knowledge that the Pennsylvania Supreme Court regarded the 1996 amendments to the Parole Act as having no change in the state's parole policies. Mickens-Thomas did not address the PBPP's powers to attach conditions to parole. The statute continues to state that the PBPP may attach special conditions "as it deems necessary." See 61 P.S. § 331.23.
PBPP decisions made after Winkelspecht continue to examine the various factors in the actual parole guidelines. See Johnson v. Lavan, No. 04-0860, 2004 WL 1291973 (E.D. Pa. June 11, 2004), approved and adopted by 2004 WL 1622051 (E.D. Pa. July 20, 2001); Davis v. Pa. Bd. of Prob. Parole, No. 03-3997 (E.D. Pa. Mar. 11, 2004); and Evans v. Pa. Bd. of Prob. Parole, No. 03-4849 (E.D. Pa. Feb. 4, 2004). In the instant case, the PBPP's most recent parole decision on October 23, 2003 post-dates Winklespecht and is presumed to include the pre-1996 criteria. The PBPP provided a list of specific reasons and requirements supporting denial of parole, including: (1) Petitioner's lack of remorse for the offense(s) committed; (2) Reports, evaluation and assessments concerning Petitioner's physical, mental and behavior condition and history; (3) Petitioner's need to participate in and complete additional institutional programs; (4) Petitioner's failure to develop an approved release plan; and (5) Petitioner's interview with the hearing examiner and/or Board member. See Resp., Ex. C.
In its decision denying parole, the PBPP stated that Petitioner would be reviewed again in September 2004 and that the PBPP would determine whether Petitioner had received a favorable recommendation from the DOC, and whether he maintained a clear conduct record and completed the DOC's prescriptive programs. In addition, Petitioner's efforts to secure an approved home plan and an updated psychological evaluation report would be submitted to the PBPP at the time of the review in or after September, 2004. See Resp., Ex. B. There is no indication that the PBPP placed undue weight on the interests of public safety in denying Petitioner parole in October, 2003. Thus, the PBPP's most recent consideration of Petitioner's parole does not violate the Ex Post Facto Clause, and this claim should be denied.
Therefore, I make the following: