The opinion of the court was delivered by: Judge Conaboy
Curtis T. McCoy, an inmate presently confined at the State Correctional Institution, Huntingdon Pennsylvania ("SCIHuntingdon"), initiated this pro se petition for writ of habeas corpus. Named as Respondents are the Pennsylvania Board of Probation and Parole ("Parole Board"); SCI-Huntingdon Warden J. Grace and the Attorney General of Pennsylvania. Service of the petition was previously ordered.
Petitioner pled guilty to three counts of rape and one count of robbery in the Chester County Court of Common Pleas.*fn1
As a result, he is presently serving a 171/2 to 40 year term of imprisonment. McCoy states that as of the filing of this petition he has been incarcerated for over twenty (20) years, successfully completed sex offender and substance abuse programs, and has been recommended for parole by the Pennsylvania Department of Corrections.
McCoy's present petition initially contends that the Parole Board violated due process because on at least two separate occasions he was denied parole based on "the cryptic statement that it [had] determined 'that the mandates to protect the safety of the public and to assist in the fair administration of justice cannot be achieved though [his] release on parole."
Petitioner next claims that the Parole Board violated the Ex Post Facto Clause in denying him release on parole. Specifically, McCoy argues that changes regarding the number of persons required to sit on a parole review panel; internal guidelines form; and the 1996 amendments to the Pennsylvania parole statute which were applied in his case constituted ex post facto violations. See id. at ¶ 8.
Respondents seek dismissal of the petition on the grounds that McCoy failed to fully exhaust his available state court remedies. Alternatively, they maintain that the actions taken by the Parole Board did not constitute either an ex post facto nor a due process violation. Also pending is Petitioner's motion to supplement the record and to compel production of documents. See Doc. 34.
I. Motion to Supplement and Compel Production of Documents
In his motion Petitioner states that on August 30, 2005 he was again considered for, and denied release by the Parole Board. His motion asks that the record of this matter be supplemented to include review of the Parole Board's latest written decision which is attached to his motion as Exhibit A. McCoy's request will be granted and the Parole Board's August 30, 2005 decision will be considered by the Court.
McCoy's motion also seeks an order compelling the Respondents to produce copies of any reports, assessments, evaluations which they relied upon in denying his parole application. Since a decision regarding Petitioner's present claims can be made without consideration of the documents listed by McCoy, this portion of his motion will be denied.
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 ...