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
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 Between 1988 through 1996 the Petitioner's parole was revoked and he was granted reparole on various occasions.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 On April 2, 1998, Robinson's parole was revoked and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,
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
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 ...