Opinion
Civil Action No. 03-6639.
September 9, 2004
ORDER
AND NOW, this day of September, 2004, upon consideration of Petitioner's Habeas Corpus Petition (Doc. 1), and upon United States Magistrate Judge Angell's Report and Recommendation, it is hereby ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED;
2. The Petition for Writ of Habeas Corpus is DENIED AND DISMISSED WITHOUT AN EVIDENTIARY HEARING; and
3. A certificate of appealability shall not be issued.
In 1993, Petitioner was convicted of aggravated assault and several weapons charges. He was sentenced to an aggregate term of seven and one-half (7 1/2) to sixteen (16) years. Petitioner's minimum sentence date expired on June 14, 2001 and his maximum date is set to expire on December 14, 2009. On October 5, 2001, the Pennsylvania Board of Probation ("Board") granted Petitioner parole. On November 27, 2001, the Board rescinded its grant of parole, prior to Petitioner's release, due to a misconduct Petitioner received for fighting with another inmate. Petitioner was again denied parole in September, 2002, April, 2003, and April, 2004.
Petitioner satisfied the federal exhaustion requirement for the 2002 and 2003 parole denials. Generally, a state prisoner must exhaust all available state remedies before a federal court may consider a habeas corpus petition. See 28 U.S.C. § 2254(b)(1);O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). However, when the Pennsylvania Supreme Court quashed his appeal as untimely, a procedural default occurred. Federal courts are prohibited from reviewing the petitioner's claims that have been rejected by a state court due to a procedural default. Edwards v. Carpenter, 529 U.S. 446 (2000). For a federal court to hear such rejected claims, the petitioner must establish "cause and prejudice" or a "fundamental miscarriage of justice." Villot v. Varner, 373 F.3d 327, 337-38 (3d Cir. 2004). Petitioner has failed to establish any such grounds, and therefore, this Court is barred from hearing Petitioner's procedurally defaulted claims.
To the extent that the Petitioner is also challenging his April 1, 2004 parol denial, that claim is unexhausted. Nevertheless, on the merits, Petitioner has not set forth any evidence that the Board abused its discretion or acted capriciously when it denied parol. Duncan v. PA Board of Probation and Parole, 687 A.2d 1179 (Pa.Commw.Ct. 1997). Therefore, this challenge does not warrant federal habeas corpus relief.
Finally, because the Petitioner's claims are either procedurally defaulted or otherwise not cognizable under a habeas corpus petition, the Petition must fail. For the reasons set forth above, this Court adopts and approves Judge Angell's Report and Recommendation.
AND IT IS SO ORDERED.