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United States District Court, E.D. Pennsylvania

July 28, 2004.


The opinion of the court was delivered by: CAROL WELLS, Magistrate Judge


Presently before this Court is a Petition for Writ of Habeas Corpus filed, pro se, pursuant to 28 U.S.C. § 2254. Charles Julius Fripp ("Petitioner") currently is incarcerated at the State Correctional Institution at Rockview, Pennsylvania. Petitioner seeks habeas corpus relief based on alleged unconstitutional denial of his parole applications. The Honorable John R. Padova referred this matter to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1). For reasons that follow, Petitioner's procedurally defaulted claims should be denied and dismissed with prejudice and without an evidentiary hearing.


  The Commonwealth presented evidence that, on August 27, 1988, Petitioner forcibly raped his girlfriend's eight-year-old daughter while she was asleep. See Commonwealth v. Fripp, No. 5226 Phl. 97 (Ct. Com. Pl. June 30, 1998). Following a jury trial, on January 17, 1990, Petitioner was convicted of Rape, Corruption of a Minor, and Simple Assault. See id. at 1-2. The Honorable Marvin R. Halbert, on January 3, 1991, sentenced Petitioner to seven and one-half (7½) to fifteen (15) years of imprisonment for the rape conviction; two and one-half (2½) to five (5) years of imprisonment for the corruption conviction and one (1) to two (2) years of imprisonment for the assault conviction; all sentences are to run concurrently. See id. at 1-2. After receiving credit for time served, Petitioner's minimum release date was July 16, 1997; his maximum release date is January 16, 2005. See Commonwealth v. Fripp, No. 0632, Mem. Op. (Ct. Com. Pl. Phila. County June 24, 2002); Respondent's Answer, to Pet. for Writ of Habeas Corpus ("Resp.") at Exh. R. 1.

  On May 13, 1997, the Pennsylvania Board of Probation and Parole (alternatively, "the Board" or "the Parole Board") denied Petitioner's first application for parole. See id. at Exhibit R-2. The Board cited the following reasons for its denial: (1) assaultive instant offense; (2) very high assaultive behavior potential; (3) need for counseling and treatment; (4) failure to participate in and benefit from a sex offender treatment program; and (5) unfavorable recommendation from the Department of Corrections ("DOC."). See id. The Board ordered Petitioner to "participate in [a] prescriptive program plan, including sex therapy . . . maintain a clear conduct record . . . [and] earn an institutional recommendation for parole." Id.

  On May 21, 1999, and May 14, 2001, following interviews with Petitioner and reviews of his files, the Board denied Petitioner's second and third applications for parole. The Board reasoned that "the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through [Petitioner's] release on parole." See id. at Exhibits R-3 and R-4. The Board informed Petitioner that, at its next review, it would consider if he had (1) successfully completed a treatment program for sex offenders; (2) received a favorable recommendation for parole from the DOC; (3) maintained a clean conduct record; and (4) completed the DOC's prescriptive program(s). See Id. Additionally, after the third review, the Board wanted the "status and/or disposition of [Petitioner's] appeal to be available at [the] time of [his next] review." Id.

  Petitioner's fourth parole review and denial occurred on or about May 17, 2002. See id. at R-5. Citing "fair administration of justice" grounds, the Board ordered that Petitioner "serve [his] unexpired maximum sentence, 01/16/2005 or be reviewed, if recommended by the [DOC.]" Id. The Board's decision rested on the ongoing deficiencies it had itemized in 2002, as well as the additional requirement that a "sex offender treatment evaluation [be made] available at [the] time of the review." Id.

  Petitioner timely sought review of the fourth denial in the Commonwealth Court of Pennsylvania, on May 21, 2003. See Petition for Review ("Pet. for Review"); Resp., at Exh. R-8. In his mandamus action, Petitioner averred that the Board, in its denials of his parole applications: (1) failed to provide him "a brief statement of its reasons for denying his second, third, and fourth parole applications," hence precluding a valid assessment of "whether the Board employed the proper factors in its decision-making process;" (2) "erred as a mater of law or arbitrarily abused its discretion so as to deny [P]etitioner his substantive due process rights . . . [by not] providing him a brief statement of its reasons for the denial;" (3) "was influenced by [the] 1996 amendments to the Probation and Parole laws, 61 P.S. § 331.1 et seq. . . . and corresponding changes in the parole decision-making policies of the Board" because the amended laws "and corresponding policies of the Board altered the fundament[als] for reviewing parole applications in that, by reason of those amendments and corresponding policies, public safety became the first and foremost concern in the Board's decision making process of parole applications;" (4) violated the "Ex Post Facto clause of the United States Constitution, by applying retroactively the amended 1996 Parole Laws and corresponding policies in its decision-making process;" and (5) Petitioner "was in compliance [when the Board considered his fourth application] with the institution's prescriptive program plan, and neither . . . his trial judge nor prosecuting attorney [n]or the victim filed a statement or report opposing his release on parole." See Pet. for Review, at 2-4, Exhs. R-7, R-8.

  The Commonwealth Court, treating Petitioner's filing as a Motion for Writ of Mandamus, directed the Board to file an answer. See Fripp v. Pa. Bd. of Prob. and Parole, No. 330 M.D. 2003, Order (Pa. Commw. Ct. May 22, 2003), Exh. R-9. Before the Commonwealth Court ruled on Petitioner's mandamus claim, the Board, on May 23, 2003, clarified its May 17, 2002 decision:

Following an interview with you and a review of your file, and having considered all matters required pursuant to the parole act of 1941, as amended, 61 P.S. § 331.1 et seq., the [Board], in the exercise of its discretion, has determined at this time that: your best interests do not justify or require you being paroled/reparoled; and, the interest of the Commonwealth will be injured if you were paroled/reparoled. Therefore, you are refused parole/reparole at this time, the reasons for the Board's decision include the following:
Your refusal to accept responsibility for the offense(s) committed. The recommendation made by the [DOC]. Your unacceptable compliance with prescribed institutional programs. Your need to participate in and complete additional institutional programs. Other factors deemed pertinent in determining that you should not be paroled: habitual offender (aggravated assault, firearms offense, disorderly conduct); assaultive instant offense (forcibly raped 8-yearold girl); victim injury.
You will serve your unexpired maximum sentence, 01-16-2005, or be reviewed, if recommended by the [DOC].
Id. at Exh. R-6. Factors to be considered at Petitioner's next review remained identical to those provided in the May 2002 Board decision. Id.

  In its response of June 23, 2003, the Board urged the court to dismiss Petitioner's Mandamus petition, inasmuch as reasons for his parole denial had, now, been specified. See Resp. at Exhs. R-7, R-10. The Commonwealth Court, on July 16, 2003, relying on Winklespecht v. Pa. Bd. of Prob. and Parole, 571 Pa. 685, 813 A.2d 688 (Pa. Commw. Ct. Dec. 31, 2002) and Reynolds v. Pa. Bd. of Prob. and Parole, 809 A.2d 426, 2002 Pa. Commw. LEXIS 841 (Oct. 21, 2002), issued a per curiam decision rejecting the merits of Petitioner's application and finding his claim that the Board failed to provide reasons for denying Petitioner parole status to be moot. See Fripp v. Pa. Bd. of Prob. and Parole, No. 330 M.D. 2003, Order (Pa. Commw. Ct. July 16, 2003). Petitioner did not appeal this adverse decision to the state's highest court.

  Rather, on September 2, 2003, Petitioner filed the instant federal habeas corpus Petition. He alleges, inter alia, as well as in an amended petition filed September 19, 2003, that the Board's second, third, and fourth parole decisions violate the Ex Post Facto Clause of the United States Constitution.*fn2 See Petition for writ of Habeas Corpus ("Pet.") at 9-10. Specifically, Petitioner alleges that:

1. The Board's retroactive application of the changes in the parole law amendments was arbitrary and capricious;
2. The Board's application of the amended parole laws used "impermissible factors;"
3. The Board's application of the amended parole law "effectively nullifies Petitioner's pre-existing parole eligibility, setting him aside for harsher treatment, changing the quantum of punishment;" and
4. The Board's application of the amended parole laws deprives Petitioner of numerous constitutional protections.
See id. See also Petitioner's Memorandum in Support of Petition for Writ of Habeas Corpus ("Memo"). Respondents reply that Petitioner's unexhausted and meritless Ex Post Facto claims should be dismissed. See Resp. at 4-8.



  A state prisoner is required to exhaust all avenues of state review of his claims prior to filing a petition for federal habeas review.*fn3 See 28 U.S.C. § 2254(b)(1). See also Rose v. Lundy, 455 U.S. 509, 519 (1982); Toulson v. Beyer, 987 F.2d 984, 987 (3rd Cir. 1993), aff'd. 30 F.3d 1488 (3rd Cir. 1994) (citations omitted). The total exhaustion doctrine, rooted in our tradition of comity, gives the state the "initial opportunity to pass upon and correct" alleged violations of a habeas petitioner's constitutional rights. See Picard v. Connor, 404 U.S. 270, 275 (1971) (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). See also Tillet v. Freeman, 868 F.2d 106 (3rd Cir. 1989). A claim is exhausted if it has been "fairly presented" once to the state's trial court, intermediate appellate court, and highest court of appeal. 28 U.S.C. § 2254(b); Evans v. Court of Common Pleas, Delaware County, Pennsylvania, 959 F.2d 1227, 1230-31 (3rd Cir. 1992) (citing Picard, 404 U.S. at 275) (1971)).

  Petitioner never presented any of his parole/ex post facto claims to the highest available state court, hence, his claims are unexhausted. Generally, this court will dismiss an unexhausted petition and allow the petitioner to return to the state courts to cure the default. See Rose v. Lundy, 455 U.S. 509, 522 (1982); Lambert v. Blackwell, 134 F.3d 506, 509 (3d Cir. 1997). To avoid dismissal and to overcome his non-compliance with the total exhaustion requirement, Petitioner invokes the "futility" doctrine. See Pet. at 4-9; Pet. Motion at [4]. He contends that application to the Supreme Court of Pennsylvania to argue violations of the Ex Post Facto Clause would be futile, because of an "absence of available state corrective process." Pet. Motion at [2]. Petitioner further argues that, since the state courts "have soundly rejected [his] issues, and, therefore, expressly have foreclosed any `[f]ruitful' response or remedy" to Petitioner, total exhaustion should be excused. See Pet. at 4. The crux of this latter position is that the Pennsylvania state courts' adherence to its holdings in Reynolds and Winklespecht,*fn4 supra, stating that 1996 changes to the new parole laws cause no ex post facto violation, renders useless any petition to the state court for parole relief based on his ex post facto arguments.

  Respondents concede that § 2254 carves out a futility exception to the exhaustion requirement, but deny that Petitioner is entitled to it. See Resp. at 6 n2. This court, however, finds that Petitioner's return to state court would be futile for both procedural and substantive reasons.

  A return to state court is excused as futile when the


state's highest court has ruled unfavorably on a claim involving facts and issues materially identical to those undergirding a federal habeas petition and there is no plausible reason to believe that a replay will persuade the court to reverse its field, where the state provides no means of seeking the relief sought, or where the state courts have failed to alleviate obstacles to state review presented by circumstances such as the petitioner's pro se status, poor handwriting and illiteracy.
Whitney v. Horn, 280 F.3d 240, 250 (3d Cir. 2002) (citing Lines v. Larkins, 208 F.3d at 153 (3rd Cir. 2000) (citations and quotations omitted). The rationale behind the "futility exception" is that, if state procedural rules bar the applicant from seeking further relief on the unexhausted claims in the state courts, the exhaustion requirement is satisfied because there is "an absence of available State corrective process." 28 U.S.C. § 2254(b). See Coleman, 501 U.S. at 750; Lines, 208 F.3d at 165-66; Henry v. Horn, No. 98-CV-2187 (E.D. Pa. May 16, 2002). Thus, futility may be found to exist when "exhaustion is not possible because the state court would refuse on procedural grounds to hear the merits of the claims." Id. (citing Doctor v. Walters, 96 F.3d 675, 681 (3rd Cir. 1996); see e.g. Hollawell 65 Fed. Appx. at 2 (citing Hollawell v. Pa. Bd. of Prob. and Parole, No. 688 M.D. 1999 (Pa. Commw. Ct. Dec. 13, 1999)[*6]) (finding futility where the Commonwealth Court had refused to entertain the merits of a petition for writ of mandamus, dismissing it for lack of jurisdiction and where identical relief was sought from the Supreme Court of Pennsylvania via writ of mandamus.) The futility doctrine also applies if, in state court


an appropriate remedy does not exist or its utilization is frustrated by the state system . . . the deference accorded the state judicial process must give way to the primary role of the federal courts to redress constitutional deprivations. . . . If it appears that the prisoner's rights have become an "empty shell" or that the state process is a "procedural morass" offering no hope of relief, then the federal courts may excuse the prisoner from exhausting state remedies and may directly consider the prisoner's constitutional claims.
Whitney, 280 F.3d at 163 (citing Hankins v. Fulcomer, 941 F.2d 246, 249-250 (3rd Cir. 1991)).

  Petitioner had an effective state remedy, both procedurally and substantively. The Supreme Court of Pennsylvania, in 1999, well before Petitioner's claim arose, expressly held that disappointed parole applicants could contest unconstitutional parole decisions by means of a mandamus action commenced in the Commonwealth Court. See Rogers v. Pennsylvania Board of Probation and Parole, 555 Pa. 285, 724 A.2d 319, 323 (Pa. 1999); Coady v. Vaughn, 770 A.2d 287, 290 (Pa. 2001) (affirming availability of the writ of mandamus to rectify unconstitutional parole determinations). In fact, Petitioner, without interference or procedural difficulties, filed his petition for writ of mandamus in Commonwealth Court. He could have pursued an appeal in the Supreme Court of Pennsylvania or, alternatively, he could have instituted a subsequent mandamus action invoking the original jurisdiction of the state's highest court, but failed to do so in a timely manner.

  It is highly improbable that any state court will entertain Petitioner's claim now, since his appeal period lapsed, on or about August 15, 2003, thirty days after Commonwealth Court denied his mandamus petition. Moreover, as will be discussed more fully infra, Section D, the Pennsylvania court's most recent pronouncement in Hall v. Pa. Bd. of Prob. and Parole, No. 40 EAP 2002, Slip Op., 2004 WL 1385937 (Pa.June 22, 2004), holding that 1996 modifications to the Parole laws*fn5 in 1996 did not create an ex post facto violation, removes even a glimmer of hope that any different substantive result would be achieved by a return to the state Supreme Court. Thus, since Petitioner is now barred procedurally and substantively from procuring relief from any state court, dismissal for the purpose of exhausting his claims would clearly be an exercise in futility. See Whitney, 280 F.3d at 250 (citing Gray v. Netherland, 518 U.S. 152, 161 (1996); Pursell v. Horn, 187 F. Supp.2d 260 (W.D. PA., 2002) (finding Petitioner's attempt to exhaust futile, since the "state's highest court had already rejected identical constitutional challenges to its proportionality review. 28 U.S.C. § 2254(b).")

  This court's finding of futility, however, renders Petitioner's claims procedurally defaulted for purposes of federal review. See Coleman v. Thompson, 501 U.S. 722, 735n. 1 (1991); 28 U.S.C. § 2254(b)(1)(A); 42 Pa.C.S. § 9544(a)-(c). Petitioner must meet a rigorous test before his procedurally defaulted claims will be considered on the merits. See Pursell, 187 F. Supp.2d 260. Specifically, he must demonstrate both "cause" for the default and "actual prejudice" as a result of the alleged violation of federal law," or that the court's failure to consider the claims will result in "fundamental miscarriage of justice" to avoid dismissal. See 28 U.S.C. § 2254(b)(1)(B); Harris v. Reed, 489 U.S. 255, 260-64(1989); Coleman, 501 U.S. at 750.

  The fundamental miscarriage of justice exception is limited to "truly extraordinary cases where there is a showing of `actual innocence' by the petitioner." See Barnhart v. Kyler, 2004 WL 1127169 (M.D. Pa. 2004). Actual innocence encompasses instances in which newly discovered evidence makes it "more likely than not" that a reasonable juror would find a petitioner not guilty. See Coleman, 501 U.S. at 750; Schlup v. Delo, 513 U.S. 298, 329 (1995); see also Caswell, 953 F.2d at 857. Petitioner does not herein challenge his conviction. Rather, he is objecting to the Board's refusal to grant parole. Thus, this court's refusal to consider the merits of the petition does not implicate a miscarriage of justice that would excuse his default. See Schlup, 513 U.S. at 298. Hence, Petitioner is confined to demonstrating "cause and prejudice" to excuse his procedural default.

  "Cause" sufficient to excuse procedural default requires a showing that some objective factor, outside of counsel or Petitioner's control, prevented compliance with state procedural rules. See Murray v. Carrier, 477 U.S. 478, 488 (1986); Caswell, 953 F.2d at 862. "Actual prejudice" occurred if an error caused Petitioner "actual and substantial disadvantage." See U.S. v. Frady, 456 U.S. 152, 170 (1972). The burden of proof falls on Petitioner to establish both cause for the default and prejudice resulting therefrom. See Teague v. Lane, 489 U.S. 288, 298 (1989); Coleman, 501 U.S. at 754; Caswell, 953 F.2d at 962.

  Petitioner cannot meet the "cause" prong of this test. He has not adduced facts indicating that objective factors, external to the defense, prevented timely appeal of the adverse Commonwealth Court mandamus determination to the Pennsylvania Supreme Court. No governmental entity is alleged to have misled him to believe further appeal was not required. Inasmuch as Petitioner cannot show any legally acceptable cause for his default, inquiry into prejudice potentially suffered is impermissible and this petition should be dismissed on procedural grounds.


  Notwithstanding Petitioner's failure to exhaust state remedies, federal courts can, in the interest of judicial efficiency, deny a meritless claim. See § 2254(b)(2); Burkett v. Love, 89 F.3d 135,138 (1996) (holding that "a federal court may deny an application on the merits notwithstanding an applicant's failure to exhaust state remedies"). Petitioner states that, because the 1996 amendments to the Parole Act materially changed the criteria for granting and denying parole, their application to his parole request violated the constitutional prohibition against ex post facto laws. Specifically, Petitioner contends that the Board's "retroactive application of the changes in the parole law amendments was arbitrary and capricious;" the Board impermissibly applied the amended Parole Act to his application, "effectively nullif[ying] [his] pre-existing parole eligibility, setting him aside for harsher treatment, changing the quantum of punishment," and, thus, causing him to suffer "numerous Constitutional violations." See Pet. at 9-10.

  1. Habeas Corpus Standard of Review

  Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal habeas court may overturn a state court's resolution of the merits of a constitutional issue only if the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court of the United States, in Williams v. Taylor, 529 U.S. 362 (2000), discussed the analysis required by § 2254(d)(1):

[Under the "contrary to" clause] a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Id. at 1498. See also Mitchell v. Esparza, 540 U.S. 12 (2003); Yarborough v. Alvarado, ___ U.S. ___, 124 S.Ct. 2140 (2004). The Third Circuit Court, consistent with the Williams v. Taylor interpretation, has set forth in Marino v. Superintendent, SCI-Albion, 171 F.3d 877 (3rd Cir. 1999), cert. denied, 528 U.S. 824 (1999), a two-tier approach to determining § 2254(d)(1) issues:
First, the federal habeas court must determine whether the state court decision was "contrary to" Supreme Court precedent that governs the petitioner's claim. Relief is appropriate only if the petitioner shows that "Supreme Court precedent requires an outcome contrary to that reached by the relevant state court." O'Brien [v. Dubois], 145 F.3d [16], 24-25 [(1st Cir. 1998]. In the absence of such a showing, the federal habeas court must ask whether the state court decision represents an "unreasonable application" of Supreme Court precedent; that is, whether the state court decision, evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified. If so, then the petition should be granted.
Id. at 891. The phrase "clearly established Federal law," as the term is used in Section 2254(d)(1), is restricted "to holdings, as opposed to the dicta of [United States Supreme Court] decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 365. Under the "reasonable application" clause,


a federal habeas court may not grant relief simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.
Id. The AEDPA further provides for relief if an adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). State factual determinations, presumptively correct, may be rebutted only upon presentation of clear and convincing evidence. See 28 U.S.C. § 2254(c)(1).

  2. Pennsylvania's Parole statutes

  Petitioner asserts that a change in parole law has caused him to be incarcerated longer than would have been the case when he was initially sentenced. He relies upon the Third Circuit's decision in Mickens-Thomas v. Vaughn, 321 F.3dd 374 (3d Cir. 2003) and its progeny for support. The Third Circuit in Mickens-Thomas held that 1996 changes to the Pennsylvania Parole Law offended the Ex Post Facto Clause of the United States Constitution, as applied to the petitioner in that case. The former parole statute provided as follows:

The value of parole as a disciplinary and corrective influence and process is hereby recognized, and it is declared to be the public policy of this Commonwealth that persons subject or sentenced to imprisonment for crime shall, on release therefrom, be subjected to a period of parole during which their rehabilitation, adjustment and restoration to social and economic life and activities shall be aided and facilitated by guidance and supervision under a competent and efficient parole administration, and to that end it is the intent of this act to create a uniform and exclusive system for the administration of parole in this Commonwealth.
Act 1941, Aug. 6, P.L. 861, § 1. Post-1996, section 1 of the parole Act contained the following new public policy statement:
In providing these benefits [relating to parole] to the criminal justice system, the board shall first and foremost seek to protect the safety of the public. In addition to this goal, the board shall address input by crime victims and assist in the fair administration of justice by ensuring the custody, control and treatment of paroled offenders.
61 P.S. § 331.1. In order to effectuate the public policy statement, Pennsylvania law grants the Parole Board vast discretion to refuse or deny parole. See 61 Pa. Const. Stat. Ann. § 331.21. The statute provides:
The Board is hereby authorized to release on parole any convict confined in any penal institution of this Commonwealth as to whom power to parole is herein granted to said board . . . whenever in its opinion the best interests of the convict justify or require his being paroled and it does not appear that the interests of the Commonwealth will be injured thereby . . . Said board shall have the power during the period for which a person shall have been sentenced to recommit one paroled for violation of the terms and conditions of his parole and from time to time to reparole and recommit in the same manner and with the same procedure as in the case of an original parole or recommitment . . .
61 Pa. Const. Stat. Ann. § 331.21. The law also authorizes the Board, in its discretion, to consider various factors in granting or denying parole. See 61 Pa. Const. Stat. Ann. § 331.19. Pennsylvania courts have affirmed the Board's complete discretion to parole a convict, and consider relevant factors, including a convict's failure to complete a sex offender program. See, e.g., Rogers v. Board of Prob. and Parole, 555 Pa. 285, 724 A.2d 319 (1999); Weaver v. Board of Prob. and Parole, 514 A.2d 967, 971 (Pa. Commw. 1986); Reider v. Board of Prob. and Parole, 514 A.2d 967 (Pa. Commw. 1986).

  Conflict has arisen between how the state and federal courts view the change in policy statement's impact on the Parole Board's implementation of its overall directives. In Mickens-Thomas v. Vaughn, 321 F.3d 374, the Third Circuit held that the 1996 changes in language increased the Board's emphasis on public safety, thus, amounting to a substantive ex post facto change to parole criteria. The court articulated the resultant constitutional problem as follows:

Pre-1996, release upon eligibility for parole was presumed, and any decision to deny parole based on public safety considerations had to be supported by specific reasons, which outweighed those factors favoring release. . . . [P]rior to 1996, the Board's concern for potential risks to public safety could not be the sole or dominant basis for parole denial under the existing Guidelines. Considerations of public safety were already incorporated into its Guidelines analysis; the board had to point to "unique" factors as a basis for its rejection of the Guidelines. Moreover, the Board had to weigh all factors, militating for and against parole, and make its decision on the totality of the factors pertinent to parole and give appropriate weight to the interests of the inmate. Heavy foot application on one factor could not have been the basis for granting or rejecting parole. Policy declarations in and after 1996 demonstrate that Board stance shifted and that, indeed, post-1996 considerations of public safety became the dominant concern of the Board.
Mickens-Thomas, at 386. Unlike the petitioner in Mickens-Thomas, however, Petitioner in this instance was denied parole after December 31, 2002, when Winklespecht v. Pa. Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (Pa. 2002) was decided by the state's highest court. The Winklespecht court pronounced that the recent amendments to the parole act (61 P.S. § 331.1) did not alter Pennsylvania policy regarding appropriate considerations for parole release eligibility. See Winklespecht at 692.

  The rewording of 61 P.S. § 331.1 did not create a substantial risk that parole would be denied any more frequently than under the previous wording, nor did the addition of this language create a new offense or increase the penalty for an existing offense. . . . Although the language concerning "protect[ing] the safety of the public" and "assist[ing] in the fair administration of justice" was added to § 331.1 in 1996, these concepts are nothing new to the parole process and have always been underlying concerns. Both versions of § 331.1 leave the decision regarding the grant of parole within the discretion of the Board; the fact that some language was added in 1996, which clarified the policy underlying the parole process, does nothing that increases Winklespecht's punishment. Winklespecht at 691-92. The Third Circuit did not follow Winklespecht in Thomas, because the Winklespecht case could not have retrospectively clarified the manner in which the new parole language had already been applied in cases determined before the Pennsylvania Supreme Court, via its Winklespecht decision informed parole officials that no change in interpretation was intended. Thus, Winklespecht, decided


after the Board's actions on Thomas's parole, came too late to alter the Board's view of the statutory amendment on the outcome of this case. Not having the benefit of the Supreme Court decision, the evidence before us shows that the Board interpreted § 331.1 to mandate foremost the consideration of public safety. The Board mistakenly construed the 1996 statutory change to signify a substantive change in its parole function.
Mickens-Thomas, 321 F.3d at 391. An appropriate extension of the Mickens-Thomas holding would, therefore, be that, since Petitioner in the case sub judice is contesting a parole determination that occurred on May 17, 2002, five months after Winklespecht clarified for the Board how it should interpret the language change, there was no longer any danger that the Board inappropriately interpreted the post 1996 policy statement to require application of a harsher standard than that applied pre-1996. Hence, it is unclear that the Third Circuit would per se find an ex post facto violation as applied to this case.

  On the other hand, this court can conclusively state that the Pennsylvania Supreme Court would find no merit to Petitioner's ex post facto assertions in applying its holding in Winklespecht. On June 22, 2004, the state's highest court, reiterated its stance (notably over the strong dissent of Chief Justice Cappy) that the legislative change in language after 1996 occasioned no change in application of parole guidelines. See Hall, supra at 7. The state high court, having reviewed Mickens-Thomas and its progeny,*fn6 expressly refused to give deference to the Third Circuit, holding instead that:

[w]ithin our federal system of governance, there is only one judicial body vested with the authority to overrule a decision that this Court reaches on a matter of federal law: the United States Supreme Court. Absent a contrary ruling from that tribunal, it is the law of this Commonwealth that application of the 1996 amendments to the Parole Act to persons sentenced prior to their adoption does not violate the ex post facto clause of the United States Constitution.
Hall 2004 WL 1385937 at *9. Thus, the state court was not bound by the Third Circuit's decision in Mickens-Thomas.

  3. Application of controlling law to Petitioner's case

  The Ex Post Facto Clause of the United States Constitution "forbids the enactment of any law which imposes a punishment for an act `which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.'" Coady v. Vaughn, 251 F.3d 480, 487 (3d Cir. 2001) (quoting Weaver v. Graham, 450 U.S. 24, 28 (1981). Although two United States Supreme Court decisions relied upon by the Third Circuit Court in Mickens-Thomas establish that ex post facto restrictions apply to parole matters, no United States Supreme Court case, to date, has examined the precise issue at hand and determined that a similar state court interpretation of the law is incorrect. See Garner v. Jones, 529 U.S. 244 (2000) and California Department of Corrections v. Morales, 514 U.S. 499 (1995) (both involving the issue of whether changes in the frequency of parole review violated the ex post facto prohibition). Therefore, this court cannot find that the state court's position in Winklespecht and Hall contravenes Supreme Court precedent. Hence, this federal court lacks the authority to overrule the Pennsylvania Supreme Court's interpretation. Factually, Petitioner is not entitled to the relief he seeks, even if this court were to follow the holding in Mickens-Thomas. Except for individuals whose parole decisions were made after adoption of the 1996 changes and before Winklespecht clarified the fact that both policies would be administered identically, no deviation in the level of scrutiny given parole applicants can be presumed. Petitioner does not fall within this narrow class of persons who were denied parole. Thus he suffered no ex post facto violation.

  In Mickens-Thomas, the petitioner, but for the perceived change in emphasis on public safety would have been released. Thomas' life sentence had been commuted, he had completed all prescribed plans, and Thomas had received favorable institutional recommendations. Petitioner herein, by contrast, would not have qualified for parole under previous or new standards. He consistently failed to complete sex offender and other prescribed institutional programs, to earn a favorable DOC recommendation, or to maintain a clean conduct record. A full review of Petitioner's parole file confirms that he was not denied due process. He was advised, at the time of each refusal, exactly what the Board would consider relevant at the next parole review. The state court's application of law to Petitioner's situation, therefore, was not unreasonable.

  In this case, the Parole Board's decisions, responsive to Petitioner's assaultive misconduct, supervision failures, need to complete sex offender program, and adverse recommendations from the DOC, clearly comply with Pennsylvania's statutory requirements. Accordingly, Petitioner has not shown that, but for the 1996 change in the wording of the parole statute, he would have been entitled to release. Therefore, the Board's adverse decisions do not indicate reliance upon ex post facto or any other unconstitutional factors. This court finds that the Board's exercise of discretion was neither arbitrary nor capricious, and did not violate substantive due process. Therefore, Petitioner's contentions lack merit and the state court's determination, in Petitioner's situation, was neither contrary to nor an unreasonable application of federal law. See Burkett, 89 F.3d 135, 140. See also, Lindeman v. Bd. of Prob. and Parole, No. 97-4824, 1999 U.S. Dist. LEXIS 19416 at *8-9 (Dec. 17, 1999) (holding that a state may not deny parole on unconstitutionally impermissible grounds, such as race or in retaliation for exercising constitutional rights.)


  For reasons stated above, I would dismiss Petitioner's procedurally defaulted habeas corpus petition. Alternatively, inasmuch as Petitioner has never fully met the Board's requirements for early release, he was not entitled to relief under either the pre-1996 or present Parole statute. Petitioner failed to satisfy habeas review requirements or to make a showing of denial of a constitutional right. Therefore, a certificate of appealability should not be issued.

  Accordingly, I make the following:

  AND NOW, this 28th day of July 2004, for the reasons contained in the preceding report, it is hereby RECOMMENDED that Petitioner's procedurally defaulted Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be DENIED and DISMISSED without an evidentiary hearing. Petitioner has not met the procedural requirements to have his petition reviewed; therefore, he has not shown a denial of a constitutional right. Consequently, a certificate of appealability should not be issued. Petitioner, presumably, would further rely on a June 22, 2004 decision rendered by the Pennsylvania Supreme Court in Hall v. Pa. Bd. of Prob. and Parole, No. 40 EAP 2002, 2004 Pa. LEXIS 1327, Slip Op. (Pa. 2004). In Hall, the Supreme Court of Pennsylvania squarely addressed the issue of whether the application of the newly-amended Parole Act to an inmate sentenced prior to the promulgation of those amendments violated the Ex Post Facto Clause of the U.S. Constitution. See id. at *6. As in the case sub judice, in Hall, the Parole Board had rejected the petitioner's application for parole, because "mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved through your release on parole." Id. at *3. After repeated parole denials, Hall filed a mandamus action in the Commonwealth Court; he contended that the Board's application of the 1996 amendments to the Parole Act violated the prohibition against ex post facto laws. See id. at 4. While Hall's mandamus action before the Commonwealth Court was pending, the Board, as in the instant case, modified its decision to deny parole, substituting as its grounds the "public safety" language utilized in this case. See id.*fn7 Following the Commonwealth Court's denial of mandamus, Hall filed an appeal to the Supreme Court. See id.

  The question before the Pennsylvania Supreme Court in Hall was whether the Third Circuit's decision in Mickens-Thomas, supra, overruling Winklespecht, a "fractured" Commonwealth Court opinion, ("three Justices agreed that there was no ex post facto violation") Hall at *6-7, and its decision in Finnegan v. Pa. Bd. of Prob. and Parole, 576 Pa. 59, 838 A.2d 684 ( Pa. 2003), in which "a clear majority" of the state's highest court upheld the constitutionality of application of the 1996 amendment to the Parole Act to persons incarcerated prior to the effective date of those amendments. Id. at *7, were binding on the Pennsylvania Supreme Court. In Hall, Justice Newman (Justice Baer concurring), decided that the Third Circuit's decision in Mickens-Thomas was not binding and, therefore, affirmed the Commonwealth Court's dismissal of Hall's application, finding no ex post facto violation. See Hall at *19.

  Following a careful review of Petitioner's claims, the procedural history in this case, the decisions of the Parole Board, and the relevant state and federal case law, this court concludes that Petitioner has not properly exhausted his state court remedies. Hence, this petition should be dismissed based upon broad principles of separation of powers and stare decisis, rather than on the merits. The Supreme Court of Pennsylvania was and remains available to Petitioner as a viable means to seek redress of his grievance. Notwithstanding the Commonwealth Court's reliance upon Winklespecht, supra, and the Pennsylvania Supreme Court's decision in Hall, it is not a foregone conclusion that the Supreme Court would have refused Petitioner the relief he seeks. [cite to the footnote in one of the state cases that indicates a flicker of hope] In the absence of other reasons that may trigger exceptions to the exhaustion rule, including abnormal delay, the Commonwealth's highest court deserves the initial opportunity to review and adjudicate Petitioner's claims.

  Moreover, Petitioner's presumptive reliance on Hollawell v. Gillis to excuse exhaustion is misplaced. See Pet. Motion to Expedite at 1. In Hollawell, rejection of the petition for mandamus in Commonwealth Court, see Hollawell, 65 Fed. Appx. 809, *810, was timely appealed to the state Supreme Court, which also refused relief. Id. Following another denial by the Board, Hollawell filed a second writ of mandamus in Commonwealth Court raising his Ex Post Facto arguments. After this appeal was dismissed, id. at *811, Hollawell preserved his issues in a writ of mandamus in the Pennsylvania Supreme Court. Id. The district court adopted, sub silentio, a magistrate judge's finding that Hollawell had exhausted his state court remedies before seeking federal habeas relief, but denied him relief on the merits. Id. at *811-*812. The Third Circuit vacated the district court's decision and remanded the case to the district court to order the Board to re-adjudicate Hollawell's parole application applying the pre-1996 statute and corresponding rules. Id. at *816. Unlike Hollawell, Petitioner herein has never sought redress in the state's highest court and, in the interest of comity, this court should refrain from considering Petitioner's habeas corpus petition, until he has done so.

  Petitioner relies upon Hollawell v. Gillis, 65 Fed. Appx. 809, 816, 2003 WL 19919371 (3d Cir. April 23, 2003), cert. denied, ___ S.Ct. ___, 2003 WL21692664 (Oct. 6, 2003) and Mickens-Thomas, to show that Winkelspect was wrongly decided and, therefore, to urge his immediate release. The Third Circuit, thus, did not suggest that the state court's stance in Winklespecht automatically warranted relief from addressing the state's high court on grounds of futility.*fn8 Nor are the facts that were presented in Winklespecht identical to those presented herein. State what is distinct. Petitioner failed to petition the Pennsylvania Supreme Court, directly or collaterally. It is not clear that his petition would not have been fairly considered on the merits in state court. During the time period when Petitioner should have filed his appeal to the state Supreme Court, July-August 2003, the Third Circuit Court had issued its seminal ex post facto decision (favorable to Petitioner), Mickens-Thomas, 321 F.3d 374 (3d Cir. 2003), and the Pennsylvania Supreme Court had not yet been afforded the opportunity to respond. If the state adopted the Third Circuit's rationale, Petitioner's appeal would not have been futile.*fn9 Accordingly, this court will not excuse Petitioner's default on futility grounds and recommends dismissal of his Petition.

  This court finds that the Board's stated reasons for denying him parole were sound and belie his claims of Ex Post Facto violations. In Mickens-Thomas, the petitioner was serving a life sentence for the 1964 rape and murder of a twelve-year-old girl. Mickens-Thomas, 321 F.3d at 376. Following Governor Casey's commutations of Thomas's life sentence, rendering him eligible for parole, Thomas applied for parole on three occasions between 1996 and 2000, but was denied. Id. at 380-83. Unlike this case, the Board denied several applications for parole despite the fact that Thomas had received release recommendations from the DOC staff, successful participation in counseling and therapy, and favorable psychiatric evaluations. Id. at 381-82. While the Board used similar language as in this case to deny Thomas's application ("assaultive instant offense," "very high assaultive behavior potential," and the need "to protect the safety of the public and to assist in the far administration of justice") the similarities end there. In this case, the Board's reasons to deny Petitioner's applications for parole were consistently: Petitioner's failure to complete sex offender treatment program, failure to obtain favorable recommendation from the DOC, failure to maintain a clear conduct record, failure to complete the DOC's prescriptive program(s), and his status as a habitual offender. Mickens-Thomas instructs that an unfavorable DOC recommendation is a significant and appropriate factor under pre-1996 guidelines. See Mickens-Thomas, 321 F.3d at 379 n. 8.

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