The opinion of the court was delivered by: Edwin M. Kosik United States District Judge
Petitioner John D. Wilson ("Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 14, 2007, in which he challenges his confinement at the State Correctional Institution at Frackville ("SCI-Frackville") (Doc. 1). Before the court are Petitioner's objections, filed November 16, 2007, (Doc. 20), to the Report and Recommendation of Magistrate Judge J. Andrew Smyser (Doc. 19). For the reasons that follow, we will overrule Petitioner's objections, adopt the Report and Recommendation of the Magistrate Judge, dismiss the petition for writ of habeas corpus, and close the case.
We adopt the factual findings laid out in the Report and Recommendation. We summarize the crux of the case as follows.
Petitioner is a Pennsylvania state prisoner confined at SCI-Frackville. Petitioner's parole was revoked on December 11, 2003, pursuant to a parole violation hearing. The reasons for the revocation were memorialized in a Notice of Board Decision dated January 27, 2004, which provides, in pertinent part:
Recommit to a state correctional institution as a technical parole violator to serve 24 months backtime. --24 months for violation of condition # 7, failure to successfully complete the ADAPPT program.
Evidence relied on: your admission.
Reasons: Not amenable to parole supervision. You are considered a threat to the safety of the community. Violations established. Aggravating reasons: Threats to agent and her family. Serious anger problems. Danger to the community.
(Doc. 5.) Respondent Pennsylvania Board of Probation and Parole (the "Board") denied reparole for Petitioner in September, 2005, April, 2006, and March, 2007. The Board based its decision to deny reparole on the following factors: negative recommendation of institution, prior history of supervision failure, and institutional behavior.
On June 27, 2007, Petitioner challenged the Board's decision to deny his reparole in the Commonwealth Court of Pennsylvania. Petitioner alleged that the Board's decision deprived him of due process and violated the Ex Post Facto clause of the United States Constitution. The Commonwealth Court sustained preliminary objections filed by the Respondent because Petitioner failed to comply with the service of process rules. Petitioner failed to petition the Supreme Court of Pennsylvania for allocatur.*fn1
This petition was filed on August 14, 2007, and the Report and Recommendation was issued on November 8, 2007. In the Report and Recommendation, the Magistrate Judge found that Petitioner had procedurally defaulted his state law claims, which provided "an independent and adequate state law procedural basis for the state law preclusion." Additionally, the Magistrate Judge found there to be no cause, prejudice, or fundamental miscarriage of justice to excuse the procedural default.
Petitioner filed objections to the Report and Recommendation on November 16, 2007. The Petitioner argues that his procedural default should be excused, in the absence of cause, because a constitutional violation has resulted in his innocent conviction. The Board submitted a brief in opposition to the objections on December 3, 2007, to which the Petitioner responded on December 11, 2007. The Board argues that the Magistrate Judge's determination that Petitioner's failure to exhaust his state court claims bars federal habeas review. Additionally, the Board notes that pursuant ...