The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court are objections (Doc. 14) by petitioner,
Robert S. Barnhart ("Barnhart"), to the report of the magistrate judge
finding petitioner's claim of unconstitutional denial of parole by
respondent, the Pennsylvania Board of Probation and Parole ("Board"), to
be procedurally barred and recommending dismissal of the petition for
writ of habeas corpus without prejudice to allow petitioner to seek
additional state collateral review of his claim. Petitioner contends that
his procedural default should be excused. Alternatively, he requests that
the instant action be held in abeyance while he pursues available state
Resolution of the objections requires an examination of the twin
doctrines of exhaustion and procedural default. For the following
reasons, the court adopts the finding of the magistrate judge that
petitioner's claim is procedurally barred. However, the court concludes
that a stay of this action is not warranted because state remedies are unavailable. Therefore, the court will dismiss
the petition for writ of habeas corpus with prejudice.
Only the procedural history of Barnhart's journey from the Board
through the state and federal courts is material to resolution of the
instant petition, and it may be summarized briefly. Barnhart, serving a
thirteen to thirty-year sentence of imprisonment relating to a 1980
conviction for rape and aggravated assault,*fn1 sought and was denied
parole on several occasions, the last by written decision of the Board on
April 24, 2002.*fn2 (Doc. 1 ¶¶ 1, 3-6; Doc. 10, Exs. A-F, N).
Barnhart responded by filing a petition for writ of mandamus in the
Commonwealth Court of Pennsylvania. (Doc. 10, Exs. J-K). He claimed that
the Board had applied post- 1996 parole guidelines to his pre- 1996
conviction in violation of the Ex Post Facto Clause of the Constitution.
See, U.S. CONST. art. I, § 9, cl. 3. The revised guidelines
emphasize public safety rather than rehabilitation as the "foremost"
factor in parole decisions. See PA. STAT. ANN. tit. 61, §
331.1. The commonwealth court rejected Barnhart's claim and denied the
petition by order dated November 22, 2002. Barnhart filed a motion for
reargument, which the court denied on December 12, 2002. (Doc. 10, Exs.
D-E). On January 13, 2003, Barnhart filed a notice of appeal to the Supreme
Court of Pennsylvania. (Doc. 10, Ex. K). The court quashed the action as
untimely, citing Pennsylvania Rule of Appellate Procedure 903(a), which
requires appeals to be filed within thirty days of the final order of the
lower court. It denied Barnhart's subsequent motion for reargument on May
21, 2003. (Doc. 10, Exs. H-I).
Barnhart filed the instant petition for writ of habeas corpus on
December 17, 2003, presenting the same claim of unconstitutional denial
of parole previously raised in the state petition for writ of mandamus.
(Doc. 1). In a report and recommendation dated March 10, 2004, the
magistrate judge to whom the case was assigned found that the claim was
procedurally barred by Barnhart's failure to file a timely appeal from
the order of the commonwealth court but concluded that Barnhart could
obtain further review through a state petition for writ of habeas corpus.
(Doc. 13). The report recommended that the case be dismissed without
prejudice to Barnhart's right to re-file his federal petition after the
Supreme Court of Pennsylvania was given an opportunity to adjudicate the
merits of the claim. (Doc. 13).
The "Great Writ" serves a unique role in the American legal system.
See Ex parte Bollman, 8 U.S. (4 Cranch) 75, 95 (1807)
(Marshall, C.J.). It provides a means by which prisoners, in state
custody pursuant to valid and enforceable judgments of state courts, may
challenge the legality of their detention in the inferior courts of the
federal government. 28 U.S.C. § 2254(a): see, Ex parte
Royall, 117 U.S. 241, 247-53 (1886). District courts presented with a petition for writ of
habeas corpus have the authority indeed the obligation to
overturn the judgment of a state tribunal and order the release of the
prisoner when necessary to vindicate rights guaranteed under the United
States Constitution. 28 U.S.C. § 2254(a): see Brown v.
Alien, 344 U.S. 443, 482-87 (1953): Mickens-Thomas v.
Vaughn, 355 F.3d 294, 309-10 (3d Cir. 2004). No other legal process
vests in federal courts such authority. Lehman v. Lycoming County
Children's Servs. Agency, 458 U.S. 502, 513 (1982) ("Federal habeas
involves a substantial thrust by the federal system into the sphere
normally reserved to the states and hence a change in the federal-state
balance.") (quoting Sylvander v. New Eng. Home for Little
Wanderers, 584 F.2d 1103, 1111-12 (1st Cir. 1978)). The Great Writ
serves as a stalwart protector of individual constitutional rights but
represents a significant encroachment on the sovereignty of the
Jurisprudential concerns over the intrusive nature of the writ, and the
desire to promote comity between the state and federal judiciaries, gave
rise to a pair of related doctrines, exhaustion and procedural default,
designed to accord greater deference to the adjudicatory authority of
state courts. See Coleman v. Thompson, 501 U.S. 722, 730
(1991): Wainwright v. Sykes. 433 U.S. 72, 80-81 (1977):
Rovail, 117 U.S. at 253. These doctrines operate to give state courts the
initial opportunity to pass on the legality of custody under federal law.
Murray v. Carrier, 477 U.S. 478, 485 (1986): Rose v.
Lundy, 455 U.S. 509, 516 (1982). Exhaustion requires that the
prisoner invoke available state procedures for presentation of a federal
claim before raising the claim in a petition for writ of habeas corpus.
O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999);
Rose, 455 U.S. at 516. Procedural default requires the district
court to reject a federal claim, even if meritorious, if previously
dismissed by the state courts based on a procedural violation.
Lambrix v. Singletary, 520 U.S. 518, 523 (1997):
Wainwright, 433 U.S. at 78-79. Together, these doctrines ensure
that a federal court will have the ability to negate a state decision
only after the state courts have had an adequate opportunity to
hear and pass on the merits of the claim. O'Sullivan, 526 U.S.
The interrelationship of these kindred doctrines has confounded the
federal judiciary. See, e.g., id., at 850-51 (Stevens, J.,
dissenting) (criticizing majority for "improperly comm[ing]" the
doctrines). Exhaustion may be established through default, since a
procedural bar may render state remedies unavailable. Id., at
844-45. Procedural default may be established through failure to exhaust,
if procedural rules operate to preclude resort to state courts.
Id., Where one doctrine ends and the other begins is a question
more often posited than answered and a distinction generally emphasized
but rarely clarified.
The confusion overshadowing these doctrines is evident in the briefs
and report filed in this case. Barnhart contends that procedural default
should be excused based on a failure to exhaust. The Board argues that the
claim is unexhausted and yet focuses its argument on procedural default.
The magistrate judge, cognizant that the parties veered off course,
concluded that the claim is procedurally defaulted but that exhaustion
cannot be excused.*fn4 Ships passing in the night is an apt metaphor.
See, HENRY WADSWORTH LONGFELLOW, The Theologian's Tale:
Elizabeth, in TALES OF A WAYSIDE INN 224 (Riverside Press 1913)
To set a signal in this darkness, the court will conduct a review of
each doctrine, examining its etiology and its application in this case.
Following this discussion, the court will examine whether procedural
default should result in dismissal or a stay of the action.
Exhaustion arose originally as a judicial construct, to balance the
need to protect individuals from unconstitutional detentions with the
desire to limit intrusions into states' adjudicatory power.
Rose, 455 U.S. at 515. Although now codified, the doctrine's
interpretation continues to be animated by the same equitable principles
from which it sprung. O'Sullivan, 526 U.S. at 844. The
statutory version of the exhaustion requirement provides as follows: An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State,