The opinion of the court was delivered by: Mitchell, M.J.
Allen Lertzman has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis.*fn1 For the reasons set forth below, the petition will be dismissed and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.
The factual background to the petitioner's present incarceration is set forth in Exhibit A to the answer, and the attachments thereto, which is the declaration of Kimberly Barkley, an officer of the Pennsylvania Board of Probation and Parole ("the Board").
On September 29, 1980, petitioner was sentenced to a five to fifteen year period of incarceration for controlled substance violations by the Court of Common Pleas of Philadelphia County, Pennsylvania. On February 6, 1991, petitioner was released on parole. On March 13, 2000, the petitioner was recommitted to serve an additional twelve months as both a technical and convicted parole violator. At that time the petitioner's maximum date was extended to January 2, 2007. On January 4, 2001, the petitioner was again released on parole and his maximum sentence expiration date was noted to be January 12, 2007. The petitioner was arrested in Florida on October 7, 2004 and convicted of drug charges. Following his release from Florida custody, on July 14, 2008, the petitioner was returned to Pennsylvania custody, a revocation hearing was held and in a decision rendered on September 12, 2008, the petitioner was recommitted as a convicted parole violator to serve 24 months of back time; his maximum sentence expiration date was recalculated to January 31, 2013, and the issue of reparole was subject to review "in or after July 2010". The petitioner was also advised of his appeal rights.*fn2 The petitioner filed an administrative appeal and as a result on February 10, 2009, the Board reduced the petitioner's back time to eighteen months with the review date set for "in or after January 2010."*fn3 As recently as February 23, 2010, release on parole was again denied.*fn4
The petitioner has also sought judicial relief in the Commonwealth Court of Pennsylvania specifically alleging inter alia:
Did the Parole Board violate the Ex Post Facto Clause in applying the new application to parole violators, post amendment to the parole act of 1996 by setting a review on or after as opposed to reparole circumventing the maximum presumptive ranges?*fn5 On August 13, 2009, that Court concluded that the Board's decision did not violated the ex post facto clause and affirmed the denial of relief.*fn6 A petition for allowance of appeal to the Pennsylvania Supreme Court was filed at No. 163 ET 2009 and denied on February 18, 2010.*fn7
The instant petition was executed on January 18, 2010.*fn8 In his petition, Lertzman contends he is entitled to relief on the following ground:
He was originally sentenced to a five to fifteen year period of incarceration in 1980*fn9 ; that at the time of his sentence, the applicable parole provisions provided that upon finding a violation had occurred the prisoner was to be re-paroled on a date certain; that the parole act was amended in 1995 so as to eliminate this re-parole date presumption, and that as such, his present incarceration violates the ex post facto prohibitions of both the United States and Pennsylvania Constitutions by prolonging his incarceration.
It is provided in 28 U.S.C. §2254(b) that: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
This statute represents a codification of the well-established concept which requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411 U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).
It is only when a petitioner has demonstrated that the available corrective process would be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez, supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).
If it appears that there are available state court remedies, the court must determine whether a procedural default has occurred. If a procedural default has occurred, the court must determine whether cause or prejudice exists for the default, or whether a fundamental miscarriage of justice would result from a failure to consider the claims. Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).
In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000) stated:
Under § 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas ...