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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 However, before being released, Petitioner received a misconduct for fighting with another inmate, and the Board rescinded its grant of parole on November 27, 2001, for this reason.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 ...

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