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October 24, 2005.


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



Ronald G. Robinson, an inmate presently confined at the State Correctional Institution, Camp Hill, Pennsylvania (SCI-Camp Hill), filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Named as Respondent is SCI-Camp Hill Superintendent Donald Kelchner. Service of the petition was previously ordered.

  Petitioner states that on February 6, 1984, he was convicted of burglary (9 counts); criminal trespass; and receiving stolen property (8 counts) in the Allegheny County Court of Common Pleas. Robinson was subsequently sentenced to a five (5) to twenty (20) year term of incarceration.

  By decision dated August 22, 1988, the Pennsylvania Board of Probation and Parole (Parole Board) granted Robinson parole effective September 1, 1988 (the expiration of his minimum sentence). Between 1988 through 1996 the Petitioner's parole was revoked and he was granted reparole on various occasions.

  In December 1996, the Pennsylvania state legislature amended the law governing parole (61 Pa. Stat. § 331). Under the modified criteria, protection of the safety of the public is the paramount condition which must be considered in determining parole eligibility. On April 2, 1998, Robinson's parole was revoked and he was ordered to serve twelve (12) months backtime following his conviction for harassment. Petitioner was denied parole on March 4, 1999. However, Robinson was reparoled on August 31, 1999.

  On May 19, 2002, Robinson was arrested in Pittsburgh and charged with criminal trespass and criminal mischief. As a consequence of this arrest, the Parole Board issued a detainer. Petitioner was subsequently convicted of those charges. Thereafter, the Parole Board issued a decision on July 30, 2003 which ordered Robinson to be recommitted as a convicted parole violator and serve nine (9) months backtime. The decision also advised Robinson that in order to obtain a favorable determination at his next parole review he should comply with prescriptive program requirements, undergo drug and alcohol counseling, and avoid institutional misconduct. See Doc. 11, Exhibit F.

  Petitioner was denied parole on June 1, 2004. His present action contends that the Parole Board violated the Ex Post Facto Clause by not applying the parole regulations which were in effect at the time of his original sentencing in 1984. His petition adds that he should be excused from the exhaustion of state remedies requirement because to do so would be a "fruitless and wasted effort." Doc. 1, ¶ 13.

  Respondent argues that Robinson 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).*fn1

  As previously noted, Robinson argues that exhaustion of his state court remedies would have been futile in light of prior adverse decisions by the Pennsylvania Supreme Court. See Doc. 1, ¶ 13.

  Since the filing of this action on November 2, 2004 and the subsequent submission of the Respondent's answer 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 F.3d 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 overruled Finnegan v. Bd. of Prob. & Parole, 576 Pa. 59, 838 A.2d 684 (2003), by recognizing that an ex ...

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