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June 3, 2005.

ROBERT T. SMITH, Petitioner,

The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District


I. Introduction

On July 26, 2004, Robert T. Smith, an inmate confined at the Huntingdon State Correctional Institution ("SCI-Huntingdon"), Huntingdon, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is the Pennsylvania Board of Probation and Parole ("Board").*fn1 Smith challenges the Board's April 18, 2003 denial of parole on two grounds: (1) he claims the Board impermissibly applied the 1996 amended policies and guidelines of the Parole Act that were not in effect in 1988 at the time of his conviction; and (2) the Board inappropriately considered unspecified "other factors" when denying him parole.

  Pursuant to this Court's Show Cause Order issued on August 2, 2004, Respondent filed a response to the petition with a supporting brief on September 8, 2004. (Dkt. Entries 5, 9-11.) Smith has not filed a traverse. The petition is ripe for consideration, and, for the reasons that follow, will be denied.

  II. Background

  Smith is currently serving a fifteen (15) to thirty (30) year sentence imposed by the Philadelphia Court of Common Pleas following Smith's conviction for aggravated assault and third degree murder.*fn2 (Dkt. Entry 11, Ex. A, Declaration of Benjamin A. Martinez ("Martinez Decl."), ¶ 25; Ex. B, Sentence Status Summary.) Smith's minimum sentence expired on July 20, 2003, and his maximum sentence date is July 20, 2018. (Id.)

  In addition to his current convictions, Smith's criminal history extends back to 1979, and is marked with prior arrests and/or convictions in New Jersey, New York, Florida and Pennsylvania. The following authorities have lodged detainers against Smith: (1) Delaware County (1988) — criminal conspiracy and altering ID-Weapon; (2) Bureau of Immigrations and Customs Enforcement — Smith, a Jamaican, may be subject to removal proceedings; and (3) the US Marshals — a Racketeer Influenced and Corrupt Organizations Act conviction, for which Smith was sentenced to life imprisonment without the possibility of parole. (Martinez Decl. at ¶¶ 27-28.)

  Smith challenges the Board's April 18, 2003 adverse decision on its first review on his current sentence. (Dkt. Entry 1.) In its decision the Board noted that it had considered "all matters required pursuant to the parole act of 1941, as amended, 61 P.S. § 331.1 et seq." (Dkt. Entry 11, Exhibit C, Notice of Board Decision, dated 04/18/03.) It determined that Smith's "best interests do not justify or require [him] being paroled/reparoled; and, the interests of the Commonwealth will be injured if [he was] paroled/reparoled." (Id.) The Board then listed the following individual reasons supporting its decision: Smith's "refusal to accept responsibility for the offense(s) committed; the recommendation of the prosecuting attorney; and his interview with the Hearing Examiner and Board member." (Id.) The Board also noted that it considered "other factors deemed pertinent in determining that [Smith] should not be paroled: [Smith's] refusal to discuss [his] convictions at [his] parole interview indicate [he is] not a suitable candidate for parole." (Id.) Although directing that he serve his unexpired maximum sentence, the Board indicated that it "will review Smith for parole again if he files an application for parole." (Martinez Decl. at ¶ 29.)

  Smith admits that he did not seek review of the Board's April 2003 decision in Pennsylvania state courts. He proceeded directly to federal court in filing the instant petition, arguing that it would be futile for him to pursue state court remedies. (See Dkt. Entry 1, Subject Matter Jurisdiction.) Without much elaboration, Smith claims the Board's application of the 1996 amendment of § 331.1 to him "is clearly" a violation of the Ex Post Facto Clause as similarly found in Mickens-Thomas, 321 F.3d 374 (3d Cir. 2003). He also asserts a Due Process violation as a result of the Board failing to explain its reasoning for deviating from its standard practices when it considered "other factors" in denying parole. Smith asks that the Board be compelled to "re-evalut[e] his case" or that he be released on parole. (Id., Conclusion.)

  III. Discussion

  A. Exhaustion of State Court Remedies

  As a threshold matter, a habeas petitioner must either show that the federal constitutional claims asserted in the federal habeas petition have been "fairly presented" to the state courts, or that there is an absence of available state court corrective process, or that circumstances exist rendering the available state court process ineffective to protect the petitioner's rights. See 28 U.S.C. § 2254(b).*fn3 Smith argues that state court remedies are ineffective because the state courts would find that they lack jurisdiction to consider his claims.

  Since the filing of the Petition and the Response there have been important federal and state case law developments in the area of when, and if, a Pennsylvania state prisoner must seek state court review of a denial of parole. Specifically, in January of 2005, the Third Circuit Court of Appeals in Defoy v. McCullough, 393 F3d 439, 445 (3d Cir. 2005), held that a state prisoner challenging the denial of parole on constitutional grounds, other than for a violation of the ex post facto clause, was not required to exhaust state court remedies before pursuing federal habeas review. Almost exactly one month later, the Pennsylvania Supreme Court decided Cimaszewski v. Bd. of Prob. & Parole, ___ Pa. ___, 868 A.2d 416, 427 (2005), which expressly overruled Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59, 838 A.2d 684 (2003), to the extent that the Pennsylvania Court now recognizes that an ex post facto claim may arise from the application of the 1996 amendments to an applicant convicted prior to the enactment of the amendments who can show that they "create? a significant risk of prolonging his incarceration." These recent case developments support the Respondent's contention that exhaustion should not be excused. However, as Smith filed his petition several months prior to Defoy and Cimaszewski, and given the "considerable jurisprudential confusion" at the time surrounding this issue, it is unreasonable to expect that he could have predicted the Pennsylvania Supreme Court's decision. Defoy v. McCullough, 3 ...

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