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May 21, 2004.

KENNETH D. KYLER, Superintendent, et al., Respondents

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 remedies.

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.

 I. Statement of Facts,

  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).

 II. Discussion

  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 states.*fn3

  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. at 848.

  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) (1873).

  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.

 A. Exhaustion Doctrine

  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, ...

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