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Fay v. Pennsylvania Board of Probation and Parole

March 31, 2006

JOHN JOSEPH FAY, JR., PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, RESPONDENT



The opinion of the court was delivered by: Judge Muir

(Complaint Filed 09/02/2005)

ORDER

Presently before the court is a petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, by John Joseph Fay, ("Fay"), an inmate presently confined in the Mahanoy State Correctional Institution, Frackville, Pennsylvania. Fay challenges the denial of his parole by the Pennsylvania Board of Probation and Parole ("the Board"). Pursuant to this Court's Show Cause Order issued on September 13, 2005, the respondent filed a response to the petition with a supporting brief on October 28, 2005. (Doc. Nos. 10, 11). On November 8, 2005, Fay filed a traverse. (Doc. No.13). The petition is ripe for consideration, and, for the reasons that follow, will be denied.

Background

Petitioner is serving an aggregate sentence of 181/2 years to 42 years for 2nd degree murder, robbery and escape. (Doc. No. 9, Ex. A, Sentence Status Summary ). Fay's minimum sentence expired on February 19, 2002 and his maximum sentence presently expires on August 19, 2025. Id.

Fay was first considered for parole in November, 2001. (Doc. No. 9, Ex. C., Notice of Board Decision). The Board denied parole, determining that "the fair administration of justice cannot be achieved through your release on parole" and set his next parole review in or after November, 2002. Id. The Board stated that in the next review, it would consider: (1) whether Fay maintained a favorable recommendation for parole from the Department of Corrections; and (2) whether he maintained a clear conduct record and completed the Department of Corrections prescriptive programs. Id.

On November 19, 2002, the Board conducted a second parole review. (Doc. No. 9, Ex. D, Notice of Board Decision). The decision was to deny Fay parole. The Board's reasons to deny parole included (1) Fay's version of the nature and circumstances of the offenses committed; and (2) his interview with the hearing examiner and Board Member. Id. Fay's next parole review was set for October, 2004, or later. The Board advised Fay that in the next review, it would consider: (1) whether he had maintained a favorable recommendation for parole from the Department of Corrections; and (2) whether he maintained a clear conduct record and completed the Department of Corrections' prescriptive programs. Id.

On April 20, 2004, the Board conducted a third parole review. (Doc. No. 9, Ex. E, Notice of Board Decision). The decision was to deny Fay parole. The Board's reasons to deny parole included (1) Fay's version of the nature and circumstances of the offenses committed; and (2) his interview with the hearing examiner and Board Member. Id. Fay's next parole review was set for October, 2004, or later. Id.

On July 23, 2004, Fay filed a petition for writ of mandamus in the Commonwealth Court of Pennsylvania, challenging the Board's first three denials of parole. (Doc. No. 9, Ex. G). By Order dated April 19, 2005, the Commonwealth Court dismissed the petition for failure to state a claim for relief. (Doc. No. 9, Ex. H).

On October 29, 2004, the Board, again, interviewed Fay and denied parole. (Doc. No. 9, Ex. F, Notice of Board Decision). The decision stated the reasons for the denial as follows: (1) Fay's version of the nature and circumstances of the offenses committed; (2) his refusal to accept responsibility for the offenses he committed; (3) his lack of remorse for the offense committed; (4) reports, evaluations and assessments concerning Fay's physical, mental and behavior condition and history; and (5) Fay's interview with the hearing examiner and/or Board Member. Id. Fay's next parole review was set for October, 2005, or later. The Board stated that in the next interview, it would consider (1) whether Fay had received a favorable recommendation for parole from the Department of Corrections; and (2) whether he maintained a clear conduct record and completed the Department of Corrections prescriptive programs. Id. The Board also noted that Fay's minimization of his offense makes him an unsuitable candidate for parole. Id.

On May 20, 2005, Fay filed a petition for writ of habeas corpus in the Pennsylvania Supreme Court, invoking the Court's original jurisdiction. (Doc. No. 9, Ex. I). This appeal is still pending.

On September 2, 2005, Fay filed the instant petition in which he challenges the Board's adverse decisions of its review of his parole. He raises the following four grounds for relief:

1. Whether the Pennsylvania Board of Probation and Parole retroactively applied the post-1996 amendments, and guidelines, to petitioner's case when he applied for consideration of parole.

2. Whether the Pennsylvania Board of Probation and Parole's statutory amendment, which shifted the "focus" of the parole program from prisoner rehabilitation to protection of the public, was retroactively applied to ...


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