The opinion of the court was delivered by: Judge Kosik
Before the court is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 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.
Petitioner, Dana E. Young, Sr., a prisoner confined at S.C.I. Mahanoy, Frackville, Pennsylvania, filed the instant petition for writ of habeas corpus on May 8, 2007. Named as respondents were Edward Klem, Superintendent at S.C.I. Mahanoy, 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 May 14, 2007, the court granted petitioner's motion to proceed in forma pauperis.
In his petition, petitioner states that he 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 kidnapping, 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.
Petitioner states that on February 5, 1986, a Department of Corrections (DOC) Prescriptive Program Plan was developed recommending petitioner remain free of misconducts, maintain positive work and housing reports, involve himself in Stress and Anger Management, Sex Offender Counseling, and work on a GED. Petitioner asserts that he obtained his GED on April 4, 1986. Petitioner contends that he continued his education by obtaining an Associate Degree in Business Administration through an in-house college program from Saint Francis College on October 12, 1990. Petitioner further asserts that on October 22, 1991, he completed a Stress and Anger Management program. Petitioner also asserts that he received certification as a Real Estate Appraiser from the National College of Appraisal and Property Management. On March 1, 1993, Petitioner states that he received certification as a Legal Assistant-Paralegal, from the Blackstone School of Law. On August 25, 1993, Petitioner asserts that he completed group counseling for sex offenders. While incarcerated at SCI Huntington, Petitioner states that he maintained gainful employment having worked as a Block Clerk from 1986-1990, and as Clerk in the Correctional Industries, Registration Sticker Plant from 1990-1994.*fn3
On March 9, 1994, petitioner was transferred to the State Correctional Institution Mahanoy. On September 24, 1994, another DOC Prescriptive Program Plan was developed wherein it was recommended that petitioner maintain positive block reports, and remain misconduct free. Petitioner asserts that his January 19, 1995 DOC Prescriptive Program Plan reveals compliance with all requirements for recommendation for parole. At SCI - Mahanoy, petitioner continued his pattern of gainful employment as a teacher aide in the Business Education Program from 1994-1998, and block worker from 1999 to the present. Petitioner asserts that in the past twelve years of incarceration, he has received four minor misconducts.
On February 10, 2004, the Pennsylvania Board of Probation and Parole denied petitioner's application for parole. Petitioner sought review in the state system. Petitioner also filed a petition for writ of habeas corpus in this court. In a Memorandum and Order dated November 28, 2005, this Court dismissed petitioner's petition for failure to exhaust state court remedies. On April 13, 2006, the Court of Appeals denied petitioner's application for a certificate of appealability.
Petitioner filed a second application for parole. By decision recorded January 23, 2006, the Pennsylvania Board of Probation and Parole again denied petitioner's application for parole. On March 13, 2006, petitioner sought reconsideration of this denial of parole from the Parole Board. By response dated March 23, 2006, the Board conveyed that the case would be reviewed according to the information on the green sheet. On August 24, 2006, petitioner sought Mandamus review of the Board's January 23, 2006 decision by the Commonwealth Court. The Commonwealth Court dismissed petitioner's Mandamus petition on October 17, 2006. Petitioner sought a Petition for Allowance of Appeal in the Pennsylvania Supreme Court, which was denied by Order dated April 13, 2007.
Petitioner filed the instant petition for writ of habeas corpus on May 8, 2007. Respondent's answer to the petition was filed on June 4, 2007. Petitioner's traverse to the answer was filed on July 5, 2007.
In his petition, petitioner argues that the Parole Board retroactively applied newly amended parole laws and guidelines to deny petitioner parole in violation of the Ex Post Facto Clause of the United States Constitution. Specifically, petitioner argues that under the parole statute in effect at the time he was convicted, the focus was on rehabilitation and reintegration. He further argues that in 1996, the Pennsylvania legislature amended the parole statute, removed the rehabilitation and reintegration focus, and replaced that focus on the nature of the offense and protecting the public.*fn4
Petitioner argues that in a 1991 50th Annual Report, the Board reported that about 80% of inmates were granted parole at the initial review. By the first quarter of 1996, the release date on prisoners minimum date dropped from 80% to 29%. Petitioner states that as a result of these changes, he finds himself ineligible for parole simply because the rules have changed, and the application of more onerous parole standards constitutes a change in punishment, and one that has disadvantaged petitioner in violation of the constitutional prohibition on ex post facto laws.
In comparing the guidelines, petitioner argues that the use of the new guidelines made him presumptively ineligible for parole, whereas use of the old guidelines, in all likelihood, would have made him presumptively eligible for parole. Specifically, petitioner asserts that "under the new guidelines, a score of seven or more points makes a prisoner similar to petitioner presumptively ineligible for parole because of being convicted of a violent crime automatically will receive five points based solely on the nature of the crime." Under the old guidelines, petitioner argues that he "would have needed three or more unfavorable points to be presumptively ineligible for parole and a violent offender received only two automatic negative points." Petitioner ...