Opinion
Civil Action No. 05-639J.
July 6, 2006
Report and Recommendation
Recommendation
Petitioner filed a petition for a writ of habeas corpus 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 summarily dismissed both as unexhausted and as meritless pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, and that a certificate of appealability be denied.
Report
Petitioner alleges he is serving an 10-20 year sentence imposed by the Court of Common Pleas of Franklin County in 1995. He alleges that on March 28, 2005, he was denied parole by the Pennsylvania Board of Probation and Parole because the Board used the post-1996 version of 61 P.S. § 331.1, the statute governing parole, which he alleges focuses more on the safety of the public and less on the rehabilitation of the offender. Petitioner argues that this violates the Ex Post Facto Clause.
I
Petitioner, like many others, relies on the Court of Appeals for the Third Circuit's decision in Mickens-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 in Mickens-Thomas, been applied in a manner which violated the Ex Post Facto Clause.After Mickens-Thomas, a colorable Ex Post Facto Clause claim is not established by allegations that a petitioner is serving a sentence imposed before 1996, and that he was denied parole after the statutory amendments of 1996, and that the reasons given by the Board are, in petitioner's words, "boilerplate." Rather, petitioner must show both a retroactive change in the law, and that this change created a "significant risk of increasing his punishment." Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282, 284 (3d Cir. 2005) (quoting Garner v. Jones, 529 U.S. 244, 255 (2000). Even to deserve a hearing, a petitioner must proffer "some evidence" that the likelihood of his being paroled has been reduced by application of the post-1996 statute's greater emphasis on the interest of public safety. Richardson, supra 423 F.3d at 293-94. Aside from alleging that he has completed all the required programs offered by the Pennsylvania Department of Corrections, petitioner offers no evidence that he would have been likely to be paroled under the pre-1996 guidelines, and I do not presume that the Board routinely granted parole in homicide cases at any point.
Under Pennsylvania law, petitioner's sentence is his maximum sentence. Commonwealth v. Daniel, 243 A.2d 400, 403 (Pa. 1968). Although petitioner is eligible for parole, he has no right under state law to be paroled, Rogers v. Pennsylvania Board of Probation and Parole, 724 A.2d 319 (Pa. 1999); Reider v. Pennsylvania Board of Probation and Parole, 100 Pa.Cmwlth. 967, 514 A.2d 967 (1986), and no federal right to parole, Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12 (1979). He therefore has no independent federal right even to be considered for parole. See Brandon v. District of Columbia Board of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987) ("Appellant's claim that he has a constitutionally protected liberty interest in a reparole hearing and thus a due process right to have the Board adhere to its regulations lacks support in law or logic; indeed, it is `analytically indefensible.'") Petitioner certainly cannot obtain a writ of habeas corpus by citing Mickens-Thomas and saying "me too."
II
Before even reaching the merits of petitioner's 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 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," since the Pennsylvania courts consistently reject Ex Post Facto Clause challenges to post-1996 parole denials.
There is no doubt that 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 DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005) (deciding that a writ of mandamus was not an available state remedy for constitutional claims other than Ex Post Facto Clause claims); see also Richardson, supra, 423 F.3d at 287; Cimaszewski v. Pennsylvania Board of Probation and Parole, 868 A.2d 416 (Pa. 2005).
There is, additionally, no "futility-based exception" to exhaustion. 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 it 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 (or was) hostile to similar claims, he need not advance those claim in state court at all. This is incorrect, as the courts which have considered this argument 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.Appx. 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).")
This matter illustrates perfectly why there is no merits-based based futility exception. The Pennsylvania Supreme Court's holding in Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 634 (Pa. 2003), on which petitioner relies to excuse his bypass of the state courts, was overruled in relevant part by Cimaszewski, and petitioner clearly has a state forum in which to prove that the Board violated the Ex Post Facto Clause in denying him parole. See e.g., Sheffield v. Pennsylvania Board of Probation and Parole, 894 A.2d 836 (Pa.Cmwlth. 2006). He must exhaust that remedy before proceeding here.
The petitioner's petition should be dismissed either on the merits or 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.