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United States District Court, E.D. Pennsylvania

July 19, 2004.


The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge


Presently before this Court is a pro se Petition for Writ of Habeas Corpus filed, pursuant to, 28 U.S.C. § 2254, by a state prisoner. Petitioner, Mr. John Baldwin, is currently incarcerated at Graterford State Correctional Institution. He is serving a sentence for aggravated assault and weapons offenses. For the reasons which follow, it is recommended that Mr. Baldwin's claims be denied and dismissed without an evidentiary hearing.


  In 1993, the Petitioner was convicted of aggravated assault and several weapons charges. Commonwealth's Answer: Exhibit 4. He was sentenced to an aggregate term of 7½ to 16 years. It is undisputed that Petitioner's minimum sentence date expired on June 14, 2001, and his maximum date is set to expire on December 14, 2009.

  On October 5, 2001, the Pennsylvania Board of Probation and Parole [Board] granted Mr. Baldwin parole. However, before being released, Petitioner received a misconduct for fighting with another inmate, and the Board rescinded its grant of parole on November 27, 2001, for this reason. Petitioner claims he was later exonerated of this misconduct. Subsequently, Mr. Baldwin has been denied parole in September, 2002, and again in April, 2003. Commonwealth's Answer: Exhibits 3 and 5.

  Mr. Baldwin believes that the failure of the Board to reinstate his parole after his exoneration of the above mentioned misconduct is a violation of his constitutional right to liberty under article 1 section 9 of the U.S. Constitution, and is a violation of Due Process under the 14th amendment of the U.S. Constitution. "Amendments to Petitioner's Petition for Writ of Habeas Corpus, Under 28 U.S.C. § 2254" [Docket Entry no. 9]: Memorandum of Law at pp. 1-3.

  Mr. Baldwin also believes that his refusal to participate in a sex offenders program is a main reason behind his denial of parole, and that since he was not convicted of a sex offense, the Board is violating his right to due process and equal protection. Petitioner argues that the lack of evidence from the Board to support the requirement of participation in a sex offenders program has resulted in incorrect information existing in his institutional files. Petitioner believes the Board has acted in bad faith, fraudulently, and capriciously. Id.

  Petitioner filed a writ of mandamus with the Pennsylvania commonwealth court, which was denied on June 12, 2003. He appealed the lower court's decision to the Pennsylvania Supreme Court. On November 10, 2003, the Pennsylvania Supreme Court quashed his appeal as untimely.

  The Commonwealth has responded to Mr. Baldwin's claims, arguing Petitioner has failed to demonstrate that he has exhausted his required state remedies under 28 U.S.C. § 2254, and in the alternate, that his claims are without merit. Commonwealth's Answer at pp. 2-4.


  A. Exhaustion/Procedural Default

  28 U.S.C. § 2254 requires that before a federal court considers a habeas corpus petition brought by a state prisoner, the petitioner must first exhaust all state remedies available. This rule ensures that a state prisoner presents all claims to each level of state court before presenting the claims to the federal court. 28 U.S.C. § 2254(b), O'Sullivan v. Boerckel, 526 U.S. 838 (1999).

  Pennsylvania state law requires a prisoner challenging a decision of a parole board to file a mandamus in the commonwealth court as the first step. Coady v. Vaughn, 770 A.2d 287 (2001). The Petitioner can then appeal the decision of the Commonwealth Court to the Pennsylvania Supreme Court within 30 days. 42 Pa. Cons. Stat. § 723(a), Pa. R.A.P. 903(a). Exhaustion is established when petitioner raises his claim(s) to the highest level of state court. 28 U.S.C. § 2254(c),*fn2 O'Sullivan at 845. "Late or untimely filings, even if insufficient under state procedural rules, satisfy the exhaustion doctrine." Barnhart v. Kyler, 1:03-CV-2297, 2004 WL 1127169 at *6, (M.D. Pa. May 21, 2004) (citing Swanger v. Zimmerman, 750 F.2d 291 (3d Cir. 1984)). In event of procedural default, federal courts are prohibited from reviewing the petitioner's claim(s). Edwards v. Carpenter, 529 U.S. 446 (2000).

  In this case, the petitioner in fact did meet the federal exhaustion requirement on his claims of the failure by the board to reinstate his parole after the November, 2001 recission, and the subsequent denials of parole in September, 2002, and April, 2003. He raised these claims to the commonwealth court and subsequently filed an appeal with the Pennsylvania Supreme Court. However, since the appeal was quashed as untimely, a procedural default has occurred.

  Federal courts must refuse to hear a petitioner's claim that has been rejected by a state court due to a procedural default. Edwards v. Carpenter, 529 U.S. 446 (2000). For a federal court to hear a prisoner's claim that was rejected in state court due to procedural default, the petitioner must establish "cause and prejudice" or a "fundamental miscarriage of justice" to excuse the procedural default. Villot v. Varner, ___ F.3d ___, 2004 WL 1462240 at* 7-8 (3d Cir. June 30, 2004).

  In this case, Mr. Baldwin has not stated any cause for his failure to file the appeal within the allowed 30 day period, nor has he established a "fundamental miscarriage of justice". Therefore this court is barred, due to procedural default, from hearing the claims which Petitioner defaulted in the state system.*fn3 B. Merits

  While not entirely clear from the pleadings and correspondence before me, it appears that Petitioner is also challenging the Board's denial of parole after the Pennsylvania Supreme Court quashed his untimely appeal on November 10, 2003. To the extent that Petitioner is challenging later decisions by the Board, this claim has not been exhausted in the state system.

  A reviewing court may deny a habeas claim on the merits, notwithstanding a failure by the petitioner to exhaust state remedies. 28 U.S.C. § 2254(b)(2). I believe it appropriate to address Petitioner's challenge to the April 1, 2004 denial of parole on the merits, despite his failure to exhaust.

  Mr. Baldwin is claiming that the Board's continuing denial of his parole is due to his failure to participate in a sex offenders program, and that this violates his constitutionally protected interest of due process because he was never charged with a sex offense.

  In its April 1, 2004 decision, the Board denied parole stating:

The reasons for the Board's decision include the following: Your version of the nature and circumstances of the offense(s) committed.
The recommendation made by the department of corrections. Your unacceptable compliance with prescribed institutional programs.
Your institutional behavior, including reported misconducts or CCC failure. Your interview with the hearing examiner and/or Board member. Other factors deemed pertinent in determining that you should not be paroled:
Refusal for sex offender program evaluation.*fn4
  The April 1, 2004 decision sets forth several factors involved in the denial of Mr. Baldwin's parole. His failure to participate in a sex offender program is the last item listed, and is not in any way shown to have been given more weight that any other factor listed. There is evidence in Petitioner's criminal history that he has been arrested for, but not convicted of, sex offenses. Commonwealth's Answer: Exhibit "4".

  The United States Supreme Court has held that a prisoner confined in custody in a state which provides only a possibility*fn5 of parole, is not entitled to due process protection because there is no liberty interest in being granted parole. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1 (1979). A court may interfere with the a decision of the Board only when the Board has abused its discretion, or acted capriciously. Duncan v. Pennsylvania Board of Probation and Parole, 687 A.2d 1179 (Pa. Commw. 1997). There is no evidence in this case that the Board abused discretion or acted capriciously, fraudulently, or in bad faith.

  Petitioner's due process claims do not warrant Federal Habeas Corpus relief. RECOMMENDATION

  Consistent with above discussion, it is recommended that Mr. Baldwin's habeas petition be denied and dismissed on the merits, without an evidentiary hearing. It is further recommended that a finding be made that there is no probable cause to issue a certificate of appealability.

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