The opinion of the court was delivered by: Eduardo C. Robreno, J.
Henry Wilson ("Petitioner") is serving a ten- to twenty-year state prison sentence for rape. Petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Habeas Petition," ECF No. 1) challenging the execution of his sentence.*fn1 U.S. Magistrate Judge Rueter recommended denial of the Habeas Petition (ECF No. 11), and Petitioner objected (ECF No. 14) and improperly filed a Motion to Expand the Record (ECF No. 12), requesting the production of statistical data. For the reasons that follow, the Court will overrule Petitioner's objections, deny and dismiss the Habeas Petition, and deny the Motion to Expand the Record.
On October 27, 1995, Petitioner was convicted of rape in the Court of Common Pleas of Montgomery County, Pennsylvania, and was sentenced to a term of imprisonment of ten to twenty years. Gov't's Ans. Ex. A, Barkley Decl. Attachment 1, ECF No. 8-1.*fn2 Petitioner's minimum release date was December 2, 2011, and his maximum release date became December 2, 2021. Id.
While Petitioner was serving his sentence, the Pennsylvania General Assembly amended the Parole Act, 61 Pa. Stat. Ann. §§ 331.1-331.4a (current version at 61 Pa. Cons. Stat. Ann. §§ 6101-6102, 6111-6124, 6131-6143, 6151-6153 (West 2012)), which governs parole decisions in Pennsylvania, to make public safety the primary consideration in determining whether to grant parole to an otherwise-eligible prisoner, see Act of December 18, 1996, P.L. 1098, No. 164 § 1 (hereinafter, "the 1996 Amendments").
Also while Petitioner was serving his sentence, the General Assembly enacted a statute requiring certain convicted sex offenders to participate in counseling programs to become eligible for parole. See Act effective Dec. 20, 2000, 2000 Pa. Legis. Serv. 2000-98 (West) (codified as amended at 42 Pa. Cons. Stat. Ann. § 9718.1 (West 2012)). Section 9718.1 provides that certain sex offenders must "attend and participate in a Department of Corrections program of counseling or therapy designed for incarcerated sex offenders if the person is incarcerated in a State institution for [certain enumerated sex offenses]." 42 Pa. Cons. Stat. Ann. § 9718.1(a). An offender who is required to participate in such a program "shall not be eligible for parole" unless he (1) serves the minimum term of imprisonment; (2) participates in a sex offender program; and (3) agrees to special conditions of parole. Id. § 9718.1(b)(1). The Pennsylvania Department of Corrections develops and provides the sex offender program ("SOP") and, in its "sole discretion" determines its "contents and administration, including the scheduling of an offender's attendance and participation." Id. § 9718.1(c).
After Petitioner served the minimum term of imprisonment, the Pennsylvania Board of Probation and Parole ("Parole Board") denied Petitioner parole. Gov't's Ans. Ex. A, Barkley Decl. Attachment 5. The Parole Board's stated reasons included: (1) Petitioner's "need to participate in and complete additional institutional programs"; (2) Petitioner's "risk and needs assessment indicating [his] level of risk to the community"; (3) the Department of Correction's negative recommendation; and (4) "reports, evaluations, and assessments/level of risk indicate [Petitioner's] risk to the community." Id. The Parole Board further noted that, at Petitioner's next interview in or after August, 2013, it would consider whether Petitioner "ha[s] successfully participated in" or "successfully completed a treatment program for sex offenders," whether he "received a favorable recommendation for parole from the Department of Corrections," and "whether [Petitioner has] maintained a clear conduct record." Id.
On December 28, 2011, Petitioner filed a Petition for Review in the Commonwealth Court of Pennsylvania to challenge the Parole Board's 2009 denial of parole, claiming only that the Board unconstitutionally required Petitioner to participate in a sex-offender treatment program pursuant to 42 Pa. Cons. Stat. § 9718.1 as a condition for early release on parole. See id. Ex.
B., Pet. for Review, ECF No. 8-2. In an order dated February 27, 2012, the Commonwealth Court dismissed the Petition for Review. On March 12, 2012, Petitioner appealed to the Pennsylvania Supreme Court, which, on July 17, 2012, affirmed the Commonwealth Court's decision. See id. Ex. G, Wilson v. Pa. Bd. of Prob. & Parole, No. 26 MAP 2012 (Pa. July 17, 2012) (order affirming Commonwealth Court's order).
On August 7, 2012, Petitioner filed the instant Habeas Petition to further challenge the Parole Board's denial of parole. The Government answered, and the Court referred the matter to U.S. Magistrate Judge Rueter for a Report and Recommendation. On November 26, 2012, Judge Rueter issued a Report and Recommendation to dismiss the Habeas Petition. Petitioner objected and filed an improper Motion to Expand the Record, requesting relevant statistical data from the Parole Board. The matter is now ripe for review.*fn3
A state prisoner who challenges the execution of his sentence must assert such challenge by writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Coady, 251 F.3d at 484-85 (3d Cir. 2001) (holding that state prisoner's challenge to denial of parole must proceed under § 2254). The Court may refer a habeas petition to a U.S. Magistrate Judge for a report and recommendation. See Section 2254 R. 10 ("A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636."); see also 28 U.S.C. § 636(b)(1)(B) (2012). A prisoner may object to the magistrate judge's report and recommendation within fourteen days after being served with a copy thereof. See 28 U.S.C. § 636(b)(1); E.D. Pa. L.R. Civ. P. 72.1(IV)(b). The Court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
Petitioner seeks a writ of habeas corpus to direct the Parole Board to re-adjudicate his parole application under the pre-1996 version of the Parole Act, excuse the requirement that he complete an SOP, grant parole, and release him immediately. Habeas Pet. 18. Petitioner asserts that the Parole Board violated the the Ex Post Facto Clause.*f ...