The opinion of the court was delivered by: Judge Vanaskie
Petitioner, William M. Burkholder, currently an inmate at the State Correctional Institution at Houtzdale, Pennsylvania, initiated this action pro se in the United States District Court for the Western District of Pennsylvania by filing a petition for writ of habeas corpus pursuant to the provisions of 28 U.S.C. § 2254.*fn1 On January 2, 2003, the case was transferred to this Court pursuant to 28 U.S.C. § 2241(d). The petition challenged Burkholder's conviction and sentence, as well as adverse decisions by the Pennsylvania Board of Probation and Parole ("PBPP").*fn2 As to the denial of parole, Burkholder contended that the PBPP had applied post- conviction standards in violation of the ex post facto clause of the United States Constitution and had violated his Fifth and Fourteenth Amendments privilege against compulsory incrimination by requiring that he admit guilt to rape charges to which he had entered a plea of nolo contendere pursuant to a plea agreement.
On initial screening, this Court dismissed the claims pertaining to Burkholder's 1991 conviction and ensuing sentence because this Court had previously determined in another habeas proceeding brought by Burkholder, docketed to Civil Action No. 99--596, that the claims he was seeking to advance in this action were barred under the procedural default component of the exhaustion of state court remedies doctrine. (Memorandum & Order of July 21, 2003, Dkt. Entry 6, at 6-7). The July 21st ruling directed service of the habeas petition and required respondents to address the claims pertaining to the denial of parole.
Respondents filed an answer to the habeas petition together with a supporting memorandum, arguing that Petitioner had failed to exhaust state court remedies on the claims concerning the denial of parole. Respondents reserved the right to address the substantive merits of Burkholder's claims "upon further direction of the Court." (Dkt. Entry 13 at 1 n.1)
The exhaustion issue was addressed by the Court in a Memorandum and Order dated March 18, 2005. (Dkt. Entry 30.) Concluding that the Pennsylvania courts would not entertain Burkholder's Fifth Amendment compulsory incrimination claim arising out of his refusal to acknowledge guilt for sexual assault, this Court held that the exhaustion requirement as to that claim was inapplicable. (Id. at 10.) As to Burkholder's ex post facto claims, the Court concluded that complicated questions of "fair presentation," procedural default and waiver arising out of Burkholder's pro se efforts to raise the matters in the state courts compelled appointment of counsel and additional briefing.*fn3 (Id. at 13.)
On May 10, 2005, Respondents filed a second answer, a supporting brief, and additional exhibits.*fn4 Petitioner's counsel filed a reply brief and exhibits on August 31, 2005. The matter is fully briefed and ripe for disposition. For the following reasons, the petition will be denied.
The information available to the PBPP showed that during 1988 and 1989 Burkholder had forced his thirteen year-old stepdaughter at knife-point to engage in sexual acts with him over a considerable period of time, culminating in her becoming pregnant.*fn5 The PBPP also had information indicating that Burkholder had threatened to shoot a state police officer when law enforcement agents sought to arrest him.*fn6
On March 12, 1991, Burkholder entered a plea of nolocontendereto charges of rape and aggravated assault in the Court of Common Pleas for Franklin County. As a result of the plea, Petitioner was sentenced to 10 to 20 years in prison on the rape charge, and a consecutive prison term of 1 to 5 years on the aggravated assault charge. The Pennsylvania Department of Corrections ("DOC") calculated his minimum expiration date to be April 17, 2001, and his maximum date to be April 17, 2015. (Dkt. Entry 1, Attach. 3, Ex. A, Sentence Status Summary.)
At the time the petition was filed, Burkholder had been considered for and denied parole on two occasions: January 31, 2001 and May 22, 2002. Burkholder sought review of the first of these adverse decisions by petitioning the Pennsylvania Supreme Court for leave to file original process.*fn7 Burkholder raised, among other things, compulsory incrimination and ex post facto claims. By Order dated July 22, 2002, the Pennsylvania Supreme Court granted the request for leave to file original process, but denied the petition without opinion. (Dkt. Entry 1, Att. 3, Ex. B, 1.)*fn8
As to the 2002 denial of parole, Burkholder, proceeding pro se, filed a mandamus petition in the Pennsylvania Commonwealth Court, again raising compulsory incrimination and ex post facto claims. The Commonwealth Court summarily dismissed the petition in an Order dated June 24, 2002. .(Dkt. Entry 42, Ex. K to Respondents' Brief.) Burkholder did not appeal this adverse ruling to the Pennsylvania Supreme Court.
After the filing of this habeas corpus proceeding, Burkholder was again considered for parole. The PBPP once again denied parole, issuing its decision on April 7, 2004. (Id., Ex. E.) Burkholder challenged the PBPP's latest decision by filing a Petition for Writ of Mandamus in the Commonwealth Court of Pennsylvania, asserting, among other things, that the PBPP had applied post-conviction standards in violation of the ex post facto clause and had violated his plea agreement, which did not require an admission of guilt. (Id., Ex. M.) The Commonwealth Court, on November 8, 2004, sustained the PBPP's preliminary objections and dismissed the petition. (Id., Ex. N.) Burkholder filed a direct appeal with the Pennsylvania Supreme Court. Significantly, however, Burkholder failed to perfect his appeal, and the Pennsylvania Supreme Court, on March 29, 2005, dismissed the appeal. (Id., Ex. L.)*fn9
As noted above, Burkholder presents two claims in this habeas corpus proceeding. First, the PBPP violated his Fifth Amendment privilege against self-incrimination by requiring him to admit guilt in a parole interview and to participate in a sex offender treatment program, which similarly required him to admit guilt to sexual assault charges that were either dismissed or to which he had pleaded nolocontendere. Second, the PBPP applied post-conviction standards to his parole application in contravention of the ex post facto clause of the United States Constitution.
As established by this Court's March 18, 2005 decision, the compulsory incrimination claim is not subject to the exhaustion requirement, and thus will be addressed on the merits. The ex post facto claim, however, is subject to the exhaustion requirement, and now must be assessed in the context of the April 7, 2004 denial of parole and the state court corrective processes pursued by Burkholder in the wake of that latest denial of parole.
A. The Fifth Amendment Claim
Burkholder challenges the PBPP's requirement that he admit guilt to the sexual offenses that were the subject of the Franklin County prosecution and that he participate in a sex offenders' treatment program, which includes a requirement that he admit guilt for his rape conviction. He contends that calling upon him to acknowledge criminal responsibility violates his ...