Denial on the Merits
Moreover, even though Mr. Carter has not exhausted the
available state court remedy of mandamus, his petition must be
denied on its merits. See 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust
the remedies available in the courts of the State.").
The petitioner claims that the Parole Board violated his
constitutional rights each time it denied his parole.
Petitioner's claims can basically be broken into two groups.
First, he claims that in order to qualify Pennsylvania for
federal grants under the 1996 amendments to the Violent
Offenders Incarceration and Truth-in-Sentencing Incentive
Grants Act (42 U.S.C. § 13701 et seq.), the Parole Board denies
parole to prisoners who have served less than 85% of their
maximum term, although Pennsylvania law provides that prisoners
are eligible for parole upon completion of 50% of their maximum
term. See 42 Pa. C.S. § 9756(b) (providing for a minimum term
not exceeding one-half of the maximum term); 61 P.S. § 331.21
(providing that parole may be granted after the expiration of
the minimum term). This practice, petitioner contends, is an
unconstitutionally arbitrary exercise of the Board's power and
is an ex post facto violation.
Constitutional claims against the Commonwealth's
participation in the program have been soundly rebuffed by the
Pennsylvania Commonwealth Court in Stewart v. Pennsylvania
Board of Probation and Parole, 714 A.2d 502 (Pa. Commw. Ct.
1998) and by another judge of this court in Carter v. Ridge,
Civ.A. No. 97-5414, 1998 WL 221035 (E.D.Pa. May 5, 1998). In
both those cases, the courts thoroughly explained that
Pennsylvania's participation in the federal grant program does
not in fact require it to deny parole to prisoners who have
served less than 85% of their sentences. The state is eligible
under a provision that requires that a "person convicted of
[the specified crimes] on average serve not less than 85
percent of the prison term established under the State's
sentencing and release guidelines." 42 U.S.C. § 13704(a)(3)(A).
It is true that the alternative way for a state with an
indeterminate sentencing regime to qualify is by showing that
such prisoners "on average serve not less than 85 percent of
the maximum prison term," 42 U.S.C. § 13704(a)(3)(B), but
Pennsylvania does not use this provision. Pennsylvania
qualifies under subsection (A) and thus is not required to keep
its prisoners incarcerated for 85% of their maximum terms. See
Carter, 1998 WL 221035, at *2-3. The Commonwealth's regime of
parole eligibility at the completion of prisoners' minimum
sentences remains unaffected by the 1996 federal grant act.
Thus, petitioner fails to state grounds for habeas relief on
Second, Mr. Carter contends that his failure to complete a
sex offenders' treatment program is an unconstitutional basis
for denying his parole.*fn5 He argues that because such
programs have no rehabilitative value to prisoners,
participation is an arbitrary requirement. He also argues that
because he is no longer serving a sentence for rape, the sex
does not apply to him.*fn6 These claims also fail to
establish grounds for habeas relief, because the consideration
of whether prisoners complete relevant treatment programs
before being released into the community is not at all
arbitrary. Notwithstanding petitioner's own beliefs that the
programs do not work and that he does not need one because the
term of his rape sentence expired some years ago, considering
a prisoner's participation in treatment is entirely consistent
with the Parole Board's duty to "procure information as full
and complete as may be obtainable with regard to the
character, mental characteristics, habits, antecedents,
connections and environment" of the prospective parolee. 61
P.S. § 331.19; see also Weaver v. Pennsylvania Bd. of Probation
and Parole, 688 A.2d 766, 775 (Pa. Commw. Ct. 1997) ("the
Board's requirement that he receive treatment and be `cured'
prior to being released on parole . . . is a legitimate
requirement imposed by the Board to ensure that a prisoner is
suitable for parole").*fn7
An appropriate Order follows.
AND NOW, this 8th day of April, 1999, after independent
consideration of the petition for habeas corpus and the answer
thereto, the motion for appointment of counsel, and after
review of the Report and Recommendation of United States
Magistrate Judge Diane M. Welsh, it is ORDERED as follows:
(1) The Report and Recommendation is APPROVED and ADOPTED.
(2) The petition for a writ of habeas corpus is
DENIED and DISMISSED.
(3) There is no probable cause for appeal and no substantial
showing of the denial of a constitutional right requiring the
issuance of a certificate of appealability.
(4) The motion for appointment of counsel is