The opinion of the court was delivered by: Katz, Senior District Judge.
Petitioner Noah Carter has applied for parole several times
since he became eligible to do so in 1995, and each time his
parole has been denied. He alleges that these denials violate
various of his constitutional rights, and on that basis seeks
a writ of habeas corpus. The Magistrate Judge's Report and
Recommendation recommends that Mr. Carter's petition be
dismissed for failure to exhaust state remedies. I agree with
the Report and Recommendation's reasoning and conclusion, but
I write further to elaborate on my assessment of the current
state of Pennsylvania's law regarding exhaustion, and
additionally to deny the petition on its merits.
Exhaustion of State Remedies
The Third Circuit's ruling in Burkett v. Love, 89 F.3d 135
(3d Cir. 1996) is binding on this court. There, the Third
Circuit said, "It appears to us . . . that [petitioner] has
available three potential ways of attacking the denial of
parole in Pennsylvania courts — appeal, mandamus, or habeas
corpus." Id. at 142. The court acknowledged, however, that it
so held in the face of "somewhat unsettled state law in this
area," and noted that "[o]bviously, a ruling by the state
Supreme Court or Commonwealth Court discussing the . . . proper
channels for bringing such claims would be helpful in this
frequently litigated area of state law." Id.
Since the Third Circuit's request for clarification in
Burkett, both the Pennsylvania Commonwealth Court and Supreme
Court have more or less obliged, most notably in Weaver v.
Pennsylvania Board of Probation and Parole, 688 A.2d 766 (Pa.
Commw. Ct. 1997), Myers v. Ridge, 712 A.2d 791 (Pa. Commw. Ct.
1998), and Rogers v. Pennsylvania Board of Probation and
Parole, 724 A.2d 319 (Pa. 1999). These decisions make it clear
that two of the three potential state avenues Burkett predicted
are foreclosed. First, direct appeal is not available. See
Rogers, 724 A.2d at 322 ("parole decisions are not ones which
are subject to appellate review by the courts").*fn1 Next,
although the Rogers court did not address the availability of
state habeas corpus relief, the Commonwealth Court in Weaver
explicitly responded to Burkett and "disagree[d] with the Third
Circuit's conclusion that a prisoner can challenge a decision
of the Board denying parole by filing a petition for a writ of
habeas corpus." 688 A.2d at 775 n. 17.
In Weaver v. Pennsylvania Board of Probation and Parole,
688 A.2d 766 (Pa. Commw. Ct. 1997), the court flatly said that
mandamus was not available to a prisoner denied parole based
upon an unconstitutional factor. See id. at 772. The court
Mandamus is based upon a duty by an agency to
follow a law and is available only when, under a
correct interpretation of that law, the agency
has an absolute ministerial duty — no choice — to
act in a certain way. Mandamus cannot be used to
say that an agency considered improper factors,
that its findings of fact were wrong, or that the
reasons set forth in its decision are a pretense.
If that was the nature of mandamus, there would be
no difference between it and an appeal from the
agency's decision or other forms of actions to
address those concerns.
Id. at 777 (footnote omitted).*fn2 In an opinion issued less
than a year later that does not mention Weaver, the
Commonwealth Court decided Myers v. Ridge, 712 A.2d 791 (Pa.
Commw. Ct. 1998). There, a prisoner filed "a petition for
review in the nature of a mandamus in [the Commonwealth
Court's] original jurisdiction," claiming deprivations of due
process, an ex post facto violation, and a denial of equal
protection. Id. at 794. The court dismissed the petition upon
the government's motion, but only after a thorough
consideration of the merits of each constitutional claim. The
court's preliminary statement was that "decisions to grant or
deny parole are generally not appealable except to the extent
that a constitutional or statutory violation has occurred."
Id. Of course, implicit in that statement, and confirmed by the
court's action, is the rule that parole decisions are
reviewable to the extent that a constitutional or statutory
violation has occurred.*fn3
In sum, based on my reading of the state case law since the
Third Circuit's decision in Burkett, the Pennsylvania courts
provide a single avenue of relief to prisoners claiming their
parole denials were unconstitutional: a mandamus action in the
Commonwealth Court's original jurisdiction. Because Mr. Carter
did not exhaust this available remedy, the Report and
Recommendation correctly concludes that his petition must be
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 ...