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October 19, 2005.

THEODORE L. KING, Petitioner

The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge


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.


  I. Exhaustion

  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").

  II. Standard of Review

  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 claim —
(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, 404-405 (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. . . .
Resol ...

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