The opinion of the court was delivered by: Hon. John E. Jones III
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
Petitioner Zachary Fells ("Petitioner" or "Fells"), an inmate presently confined at the State Correctional Institution Huntingdon ("SCI Huntingdon") in Huntingdon, Pennsylvania, initiated the above action pro se by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1.) Fells challenges a July 30, 2010 decision by Respondent the Pennsylvania Board of Probation and Parole ("the Board") denying him parole, which allegedly was based upon Fells' failure to complete a sexual offender's group. (Id. at 5; Doc. 4, Mem. of Law, at 1.)
By Order dated July 13, 2011, we directed service of the Petition on Respondents, and directed Respondents to answer the allegations in the Petition within twenty-one (21) days. (Doc. 6.) Our Order also provided Fells with an opportunity to file a reply brief within fourteen (14) days of the date of filing of the response. (Id.) Following two (2) requests for extensions of time to respond to the Petition filed by counsel for the Board, which were granted, on October 3, 2011, a Response to the Petition (Doc. 15), supporting exhibits (Docs. 15-1, 15-2), and a supporting memorandum of law (Doc. 16) were filed. Following two (2) requests for extensions of time by Fells, which were granted, on December 8, 2011, he filed his reply brief (Docs. 22, 24).*fn1 Fells simultaneously filed a Motion to Appoint Counsel (Doc. 23), which was denied by Order dated January 6, 2012 (Doc. 26). Accordingly, the Petition is fully briefed and ripe for disposition. For the reasons set forth below, the Petition will be dismissed for failure to exhaust administrative and state court remedies.
The Board currently has parole jurisdiction over Fells based upon the sentence he presently is serving, which is a one and one-half (1 and 1/2 ) to three (3) year sentence for Failure to Comply with Requirements for Sex Offenders Registration in violation of 18 Pa. Cons. Stat. Ann. § 4915 that was imposed by the Dauphin County Court of Common Pleas on June 26, 2009. (See Doc. 15-2 at 13, Ex. 8, Sentence Status Summary.) The minimum and maximum dates for this sentence are November 18, 2010 and May 18, 2012. (See id.)
The Board first acquired parole authority over Fells when he was serving a previous three (3) to ten (10) year sentence imposed by the Dauphin County Court of Common Pleas for two (2) counts of Rape in violation of 18 Cons. Stat. Ann. § 3121 and one (1) count of Statutory Rape in violation of 18 Pa. Cons. Stat. § 3122.*fn2 (See Doc. 15-2 at 1, Ex. 1, Sentence Status Summary) While serving that sentence, the Board denied Fells parole six times in decisions dated January 21, 1999, May 22, 2000, May 10, 2001, April 2, 2002, January 3, 2003, and November 7, 2003. (See id., Exs. 2-7, Parole Denial Decisions.) Fells' failure to participate in and complete sex offender programming was one of the reasons cited for the denial of parole in all six of the decisions. (See id.) The Board finally granted parole to Fells on May 12, 2005, and he completed the sentence on March 14, 2006. (See Doc. 15-1 at 2, Janis Decl., ¶¶ 7, 8.)
With respect to his current sentence, the Board has reviewed Fells for parole on two (2) occasions and has denied parole both times. (See id. at 3 ¶ 12.) The first denial is the subject of the instant Petition and occurred after the Board first interviewed Fells for parole on July 27, 2010. (See id. ¶ 13.) Prior to that interview, on June 28, 2010, Fells received a misconduct for violation of visiting room rules at the institution where he was housed. (See id. ¶ 14.) On July 30, 2010, the Board recorded a decision denying Fells parole from his current sentence. (See id. ¶ 15.) The July 30, 2010 decision listed the following reasons in support of the decision to deny Fells parole: (1) his need to participate in and complete additional institutional programs; (2) his institutional behavior, including reported misconducts; (3) the negative recommendation made by the Department of Corrections; (4) his prior unsatisfactory parole supervision history; and (5) his minimization of the nature and circumstances of the offense committed. (Id. at 3-4 ¶ 16.) Fells did not appeal from the July 30, 2010 parole denial to any Pennsylvania court. (See Doc. 15, Respondents' Answer, at 4 14.)
The Board interviewed Fells for parole the second time on August 2, 2011, after he had filed the instant Petition. (See Doc. 15-1 at 4, Janis Decl., ¶ 17.) Prior to this interview, on May 20, 2011, Fells received a second misconduct for violation of visiting room rules at the institution. (See id. ¶ 18.) Fells also withdrew from sex offender programming on May 27, 2011. (Id. ¶ 19.) On August 30, 2011, the Board recorded a Parole Denial.) The August 30 decision listed the following reasons in support of the decision to deny Fells parole: (1) his unacceptable compliance with prescribed institutional programs; (2) his need to participate in and complete additional institutional programs; (3) his institutional behavior, including reported misconducts; (4) the negative recommendation by the Department of Corrections; and (5) his failure to demonstrate motivation for success. (See id.) Fells did not appeal the August 30, 2011 parole denial to any Pennsylvania court. (See Doc. 15 at 5 ¶ 20.)
Fells is not scheduled to be reviewed for parole again on the Board's own motion. (See Doc. 15-1, Janis Decl., at 5 ¶ 22.) However, Fells still has the right to file a parole application if he wishes to be seen again in accordance with 61 Pa. Cons. Stat. Ann. § 6139. (See id. ¶ 23.)
Before a federal court can review the merits of a state prisoner's habeas petition, it must determine whether the petitioner has met the requirements of exhaustion. Relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).
To properly exhaust a claim involving a determination by the Parole Board, a petitioner first must seek administrative review with the Parole Board within thirty (30) days of the mailing date of the Board's decision. See 37 Pa. Code § 73.1(a). Once the Parole Board has rendered a final decision, a petitioner must seek review in the Commonwealth Court. See 42 Pa. Cons. Stat. Ann. § 763(a). Unlike appeals and collateral review of convictions, a petitioner challenging the Commonwealth Court's denial of parole relief must seek review in the Pennsylvania Supreme Court in order to satisfy the exhaustion requirement. Pagan v. Pennsylvania Bd. of Prob. and Parole, 2009 WL 210488 *3 (E. D. Pa. Jan. 22, 2009); see also Brown v. Pennsylvania Bd. of Prob. and Parole, 2010 WL 2991166 (E.D. Pa. July 28, 2010). If a petitioner fails to seek review from the Supreme Court of Pennsylvania, then the state claim is unexhausted. See Williams v. Wynder, 232 Fed. Appx. 177, 181 (3d Cir. 2007).
Fells admits in his Petition and in his reply brief that he did not challenge the Board's July 30, 2010 parole denial in any Pennsylvania court before filing the instant Petition. (See Doc. 1 at 5; Doc. 24 at 3 § IV. A.) Fells indicates in his reply brief that he sought administrative review in the form of "an appeal to the Board's adverse decision" and cites to "Attachment A" (see Doc. 24 at 3), but there is no attachment to his brief, and there is no indication in the record that he ever filed an appeal with the Board from its July 30, 2010 denial of parole. However, even if Fells filed an appeal to the Board, he admits that he never filed a petition for review with the Commonwealth Court, and therefore, it is clear that his claims are unexhausted in state court. Because the time for filing a petition for review with the Commonwealth Court has expired, Fells' claims are time-barred. See Pa. R. App. P. 903(a) (notice of appeal ...