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FRIPP v. MEYERS

July 28, 2004.

CHARLES FRIPP
v.
SUPERINTENDENT MEYERS, ET AL.



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

REPORT AND RECOMMENDATION

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.

I. BACKGROUND AND PROCEDURAL HISTORY*fn1

  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.

  II. DISCUSSION

  A. EXHAUSTION & PROCEDURAL DEFAULT

  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 ...


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