The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
Theodore L. King, an inmate presently confined at the State
Correctional Institution, Huntingdon, Pennsylvania, filed this
pro se petition for writ of habeas corpus. Named as sole
Respondent is the Pennsylvania Board of Probation and Parole
("Parole Board"). Service of the petition was previously ordered.
Petitioner was convicted of murder, aggravated assault and
possession of an instrument of crime in the Philadelphia County
Court of Common Pleas. On June 10, 1980, he was sentenced to a
fifteen (15) to thirty (30) year term of incarceration. His
minimum sentence expired on February 9, 1995. The Petitioner's maximum sentence will not expire until February 9, 2010.*fn1
Since 1995, King has been denied parole eight (8) times.
Specifically, the Parole Board denied relief on April 4, 1995,
July 1, 1996, August 13, 1997, June 23, 1998, June 18, 1999,
December 28, 2000, September 27, 2002, and November 5, 2003.
King claims entitlement to federal habeas corpus relief on the
grounds that the Parole Board violated due process by basing its
denials of parole on the undefined standard "that the fair
administration of justice cannot be achieved through your
release." Id. at ¶ 8. Petitioner adds that the Respondent's
denial of parole following Pennsylvania's 1996 amendments to the
parole statute, "violated Petitioner's Constitutional right(s)
under the Ex Post Facto Clause." Doc. 1, p. 1.
King is also apparently arguing that the Parole Board's written
decisions failed to satisfy the requirements of due process
because they did not provide a brief statement of the reasons for
the denial of parole. Petitioner additionally indicates that his
claims were previously raised in an unsuccessful petition for
writ of mandamus before the Commonwealth Court of Pennsylvania
and that it would be futile to seek relief from the Pennsylvania Supreme Court.
Respondent argues that King is not entitled to habeas corpus
relief because: (1) he failed to exhaust state court remedies;
and (2) the most recent denial of parole did not violate the Ex
Post Facto Clause. This matter is ripe for consideration.
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).*fn2
King, citing Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59,
838 A.2d 684 (2003), argues that exhaustion of his state court remedies would have been futile in light of prior adverse
decisions by the Pennsylvania Supreme Court.
Since the filing of this action and submission of 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, 582 Pa. 27, 868 A.2d 416, 427 (2005), which
expressly overruled Finnegan, to the extent that the
Pennsylvania Supreme 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 King 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, 393 F.3d 439, 446 (3d Cir. 2005) (Weis, J.,
concurring). Nonetheless, the question of exhaustion need not be
resolved as the claims presented by King are clearly without
merit.*fn3 See 28 U.S.C. § 2254(b)(2) (a federal court can
deny a habeas petition "on the merits, notwithstanding the
failure of the applicant to exhaust the remedies available in the
courts of the State").
28 U.S.C. § 2254(d)(1) provides:
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States;. . . .
"The Antiterrorism and Effective Death Penalty Act of 1996
modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas
`retrials' and to ensure that state-court convictions are given
effect to the extent possible under law." Bell v. Cone,
535 U.S. 685, 693 (2002). Specifically, when a federal-law issue has
been adjudicated on the merits by a state court, the federal
court reverses only when the decision was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the United States Supreme Court.
28 U.S.C. § 2254(d)(1). See generally, Gattis v. Snyder,
278 F.3d 222
, 234 (3d Cir. 2002); Moore v. Morton, 255 F.3d 95
1040-5 (3d Cir. 2001). The Court has held that the "contrary to"
and "unreasonable application" clauses of § 2254(d)(1) have
independent meaning. Williams v. Taylor, 529 U.S. 362
(2000). As explained in Bell, 535 U.S. at 694:
A federal habeas court may issue the writ under the
`contrary to' clause if the state court applies a
rule different from the governing law set forth in
our cases, or if it decides a case differently than
we have done on a set of materially indistinguishable
facts. . . . The court may grant relief under the
`unreasonable application' clause if the state court
correctly identifies the governing legal principle
from our decisions but unreasonably applies it to the
facts of the particular case. . . . The focus of the
latter inquiry is on whether the state court's
application of clearly established federal law is
objectively unreasonable. . . .