The opinion of the court was delivered by: M. FAITH ANGELL, Magistrate Judge
REPORT AND RECOMMENDATION
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another inmate, and the Board rescinded its grant of parole on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
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
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 ...