United States District Court, E.D. Pennsylvania
July 19, 2004.
JOHN BALDWIN [CN-0788]
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another inmate, and the Board rescinded its grant of parole on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 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.