Opinion
Civil Action No. 04-934.
May 18, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is presently incarcerated at the State Correctional Institution at Graterford, Pennsylvania. For the reasons stated below, this court recommends that the petition be dismissed without prejudice for failure to exhaust state court remedies.
I. BACKGROUND
On February 22, 1990, petitioner was sentenced to serve between seven (7) and fourteen (14) years in state prison for the offenses of rape and indecent assault. Since his conviction, petitioner made several applications to be released on parole before the Pennsylvania Board of Probation and Parole ("the Board"). The Board denied petitioner's requests for release on parole on October 27, 1999, October 16, 2000, January 2, 2002 and August 12, 2003.
On February 4, 2002, petitioner filed a Petition for a Writ of Mandamus with the Commonwealth Court of Pennsylvania (Docket No. 44MD2002). (Response Ex. G.)
On April 3, 2002, petitioner filed an Amended Petition for Review in the Nature of Mandamus. Id. at Ex. H. In his Amended Petition in the Commonwealth Court, petitioner alleged an ex post facto claim arising from the 1996 changes to the Pennsylvania statute that addresses parole. In his Amended Petition, petitioner did not allege any claims under the First, Fifth or Fourteenth Amendments.
The Board filed its Answer and New Matter to Petitioner's Mandamus Petition on May 30, 2002 and petitioner filed his Response to the New Matter on June 21, 2002. Petitioner's mandamus petition remains pending in the Commonwealth Court.
On March 3, 2004, petitioner filed this petition for a writ of habeas corpus in this court. Petitioner alleges that the Board's application of the post-1996 amendment parole guidelines to his applications for parole violates the ex post facto clause of the United States Constitution (Art. One, Sec. 10). (Petition ¶¶ 12(A), (C) and (D).) Petitioner also alleges that denying him parole because he will not admit his guilt and take responsibility for his crimes violates the First, Fifth and Fourteenth Amendments (self-incrimination, equal protection and due process). Id. at ¶ 12(B).
II. DISCUSSION
It is well-established that a federal court may not entertain the merits of a petition for a writ of habeas corpus unless available state court remedies have been exhausted. 28 U.S.C. § 2254(b)(1)(A). O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Because the exhaustion doctrine is designed to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts, state prisoners must invoke one complete round of the state's established appellate review process. Id. at 845.See also Baldwin v. Reese, 124 S.Ct. 1347, 1349 (2004) ("To provide the State with the necessary `opportunity,' the prisoner must `fairly present' his claim in each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim.").
As recounted above, petitioner has filed a Petition for a Writ of Mandamus in the Commonwealth Court of Pennsylvania which is still pending. The Commonwealth Court will entertain a constitutional challenge to the decisions of the Board by way of Mandamus when discretionary action and criteria are not being contested but rather there is a challenge to the Board's application of statutory requirements. See Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001). Here, petitioner alleges, inter alia, that the Board improperly applied post-1996 statutory criteria to his application for parole. Thus, it appears that the Commonwealth can review petitioner's ex post facto claim by way of Mandamus. If the Commonwealth Court rules against the petitioner, he must seek discretionary review with the Pennsylvania Supreme Court in order to exhaust state court remedies.
On May 9, 2000, the Pennsylvania Supreme Court issued an order ("Order 218"), making Pennsylvania Superior Court appellate decisions complete exhaustion for federal habeas corpus cases. Order 218 does not apply to Pennsylvania Commonwealth Court decisions. Additionally, by its very terms, Order 218 applies only to "appeals from criminal convictions or post-conviction relief matters." The instant matter raising claims regarding parole is not covered by Order 218. See Order No. 218, Jud. Admin. Doc. No. 1, captioned: "In re Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases."
Petitioner's remaining First, Fifth and Fourteenth Amendment claims based on his refusal to admit his guilt to the Board were never raised in the state courts. As noted above, these claims were omitted from the mandamus petition filed in the Commonwealth Court. Because all of petitioner's claims are unexhausted in the state courts, the petition for a writ of habeas corpus must be dismissed without prejudice for failure to exhaust state court remedies.
Accordingly, for all of the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 18th day of May, 2004, it is respectfully recommended that the petition for a writ of habeas corpus be DISMISSED without prejudice for failure to exhaust state court remedies and that no certificate of appealability be issued.