ALEX R. FREW, Petitioner,
DAVID VARANO, et al., Respondents.
ROBERT D. MARIANI, District Judge.
Petitioner Alex R. Frew ("Petitioner" or "Frew") initiated the above pro se action by filing a Petition for Writ of Habeas Corpus ("Petition") under the provisions of 28 U.S.C. § 2254. (Doc. 1). Named as Respondents are SCI Coal Township Superintendent David Varano; the Attorney General of the Commonwealth of Pennsylvania; and the Pennsylvania Board of Probation and Parole. ( Id. ). Frew challenges, inter alia, the application of Act of July 5, 2012, P.L. 2050, No. 122, amending Titles 18 (Crimes and Offenses), 42 (Judiciary and Judicial Procedure) and 61 (Prisons and Parole) of the Pennsylvania Consolidated Statutes, to his sentence. ( Id. ).
For the reasons discussed below, the Court will dismiss the Petition for failure to exhaust and procedural default. Additionally, Frew's motion to stay will be denied.
On May 29, 2008, Frew was sentenced by the Court of Common Pleas of Montour County, Pennsylvania, to an aggregate term of seven (7) to twenty (20) years. (Doc. 1, p.1). "motion for modification was filed by Frew on June 9, 2008, but that motion was denied. ( Id. ).
On July 5, 2012, subsequent to the imposition of Frew's sentence, Act 122 of 2012 was enacted. Respondent, in its Answer to the instant Petition, summarized Act 122 as follows:
Among other matters, the act amended title 61 of the Pennsylvania Consolidated Statutes (Prisons and Parole) to eliminate the authority of the Department of Corrections to establish pre-release centers in the state or to transfer prisoners from correctional institutions to pre-release centers. Act 122, § 6. Instead of pre-release programs, the General Assembly established an extensive alternative program to be known as the Safe Community Reentry Program. [ Id. at § 13]. The new Safe Community Reentry Program is intended to "reduce recidivism and ensure the successful reentry of offenders into the community." Id. Offenders who are eligible for participation in the Safe Community Reentry Program are those offenders from a state correctional institution who are released or paroled from incarceration, excluding inmates serving a sentence of life imprisonment or death. Id.
(Respondent's Answer to Petition, Doc. 12, p. 3; See also Doc. 12-2 "Senate Bill 100").
On July 26, 2012, John Wetzel, Secretary of the Department of Corrections ("DOC"), sent a memorandum to all inmates notifying them that pre-release would no longer apply to inmates incarcerated by the DOC. (Doc. 12-3, "John Wetzel Memorandum"). The memorandum also noted that the DOC would continue to send those inmates eligible for pre-release programming to such programs until December 12, 2012, provided that the inmate's minimum date on their sentence did not extend beyond May 31, 2012. ( Id. ). Because Frew's minimum date was February 8. 2015, he is not eligible for pre-release programming. (Doc. 12, p. 4).
On August 1, 2012. Frew filed a Petition for Writ of Habeas Corpus in the Court of Common Pleas of Montour County, Pennsylvania. See Commonwealth v. Frew, CP-47-CR-0000057-2008, et seq. On August 2, 2012, the petition was denied. (Doc. 1, App. C "Order of Court - Montour Countt). In this denial, the Court of Common Pleas for Montour County explained that the Pennsylvania Board of Parole and Probation had jurisdiction. Id. Petitioner did not appeal this decision to the Superior Court of Pennsylvania.
On August 15, 2012, Petitioner filed the instant habeas Petition. (Doc. 1). In his Petition, Frew argues that the application of Senate Bill 100 to his sentence without a hearing or without providing him with compensation violates his right to Due Process and the Ex Post Facto Clause. ( Id. at p. 1-2. 5-6.) He also argues that the elimination of his pre-release eligibility amounts to an increase in his sentence and therefore violates the Double Jeopardy Clause. ( Id. at 5.) Frew submits that he lacks astate remedy and that the exhaustion requirement therefore should be excused. ( Id. at 2-3.) Alternatively, Frew argues that this Court should stay this case while he exhausts his remedies. ( Id. at 4).
On September 25, 2012, a show cause order was issued, directing that a response to the petition be filed within twenty-one (21) days. (Doc. 6). After two enlargements of time (Docs. 8, 10), a response to the petition was filed on November 21, 2012. (Doc. 12). In their Response, Respondents argue that Frew's Petition should be denied. Respondents explain that because Frew failed to seek appellate review of the decision of the Court of Common Pleas of Montour County, he has now procedurally defaulted on his claims. ( Id. ). Respondents additionally note that Frew should have sought administrative review by the Parole Board in order to properly exhaust a claim involving a determination of the Board. ( Id. ).
On January 25, 2013, Frew filed a traverse. (Doc. 16). In his traverse, Frew reiterates that the Commonwealth has failed to provide him with a remedy and that the loss of ...