Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

YOUNG v. KLEM

United States District Court, M.D. Pennsylvania


November 29, 2005.

DANA E. YOUNG, SR., Petitioner,
v.
EDWARD KLEM, SUPERINTENDENT, SCI MAHANOY; COMMONWEALTH OF PENNSYLVANIA; PENNSYLVANIA BOARD OF PROBATION AND PAROLE; ATTORNEY GENERAL OF THE STATE OF PENNSYLVANIA, Respondents.

The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge

MEMORANDUM

Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. In his petition, petitioner challenges the actions of the Pennsylvania Board of Probation and Parole in denying his request for parole. For the reasons which follow, the petition for writ of habeas corpus will be DISMISSED.

Background

  Petitioner, Dana E. Young, Sr., a prisoner confined at S.C.I. Mahoney, Frackville, Pennsylvania, filed the instant petition for writ of habeas corpus on August 26, 2004. Named as respondents were Edward Klem, Superintendent at S.C.I. Mahoney, Commonwealth of Pennsylvania, Pennsylvania Board of Probation and Parole, and the Attorney General of the State of Pennsylvania. In his petition, petitioner challenges the denial of his parole asserting that the Board of Probation and Parole impermissibly applied 1996 amended policies and guidelines to his parole application in violation of the Ex Post Facto Clause of the United States Constitution. On September 13, 2004, petitioner paid the appropriate filing fee. An answer to the petition, memorandum of law in support thereof, and supporting exhibits were filed by respondents on November 3, 2004. On December 23, 2004, petitioner filed a brief in reply to respondents' answer. On May 9, 2005, petitioner filed a motion for leave to conduct discovery and a memorandum of law in support thereof.

  Discussion

  Petitioner, Dana E. Young, Sr., is currently serving a sentence of twenty-one to forty-two years imprisonment imposed by the Court of Common Pleas of Lehigh County as a result of his convictions for kidnaping, indecent assault and indecent exposure, rape and related charges.*fn1 The petitioner's sentence has a maximum term expiration date of April 6, 2024 and a minimum term expiration date of April 6, 2004, which became effective April 6, 1983.*fn2 The petitioner asserts that he has successfully completed several programs while incarcerated. The petitioner states that he has served the minimum term of his sentence, twenty-one years, and that he became eligible for parole on April 6, 2004.

  On February 10, 2004, the Board of Probation and Parole denied petitioner's application for parole. The petitioner asserts that the Parole Board applied the 1996 standard in denying his parole application.*fn3 Specifically, the petitioner argues that the Parole Board's retroactive application of the amended parole laws and guidelines to deny his application for parole violated the Ex Post Facto Clause of the United States Constitution.

  Petitioner asserts that following the February 10, 2004 denial of his parole application, he filed a request for reconsideration with the Parole Board. On February 17, 2004, the Parole Board advised petitioner that it was not required to consider or address petitioner's application. The petitioner states that on March 11, 2004, he filed a Petition for Writ of Mandamus in the Commonwealth Court. Following the filing of preliminary objections by the Parole Board, petitioner filed an amended petition. The Parole Board filed preliminary objections to the amended petition in the nature of a demurrer. On July 22, 2004, the Commonwealth Court sustained the Parole Board's demurrer and dismissed the petition. Petitioner concedes that he did not pursue his petition to the Pennsylvania Supreme Court. On August 26, 2004, petitioner filed the instant petition for writ of habeas corpus. In his request for relief, petitioner requests his immediate release, or in the alternative, a remand for further hearing before the Parole Board under standards that existed prior to the amendment. In the memorandum of law in response to the petition, respondents raise two arguments: (1) that the petition should be dismissed for failure to exhaust available state court remedies; and (2) that the petition should be dismissed for failure to state valid Ex Post Facto claims.

  As to respondents' first argument regarding the exhaustion of available state court remedies, it is clear that a mandamus action is available in the state courts where a challenge to the denial of parole is premised on the Ex Post Facto clause. DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005), cert. denied, ___ U.S. ___, 125 S.Ct. 2970 (2005), citing Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287 (2001). Following DeFoy, the Pennsylvania Supreme Court decided the case of Cimaszewski v. Board of Probation and Parole, 582 Pa. 27, 868 A.2d 416, 427 (2005), wherein it was recognized 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 if it can be shown that the amendments "create [] a significant risk of prolonging his incarceration." See also, Richardson v. Pennsylvania Board of Probation and Parole, 423 F.3d 282 (3d Cir. 2005). These recent developments indicate that there are state court remedies available to raise an Ex Post Facto claim such that exhaustion should not be excused. Parker v. Kelchner, ___ F.3d ___, 2005 WL 2979229 (3d Cir. Nov. 8, 2005).

  It is clear from the instant record, that while petitioner filed a petition and amended petition for writ of mandamus in the Commonwealth Court, which were dismissed, petitioner failed to seek review in the Supreme Court of Pennsylvania.*fn4 Thus, it is apparent that petitioner has failed to exhaust his state court remedies.*fn5 Accordingly, the instant petition for writ of habeas corpus will be DISMISSED.*fn6

20051129

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.