Parker v. Kelchner

• Decision Date: 08 November 2005
• Docket Number: No. 04-3286.,04-3286.
• Citation: 429 F.3d 58
• Parties: Shawn PARKER, v. Donald KELCHNER, Superintendent; Attorney General of Pennsylvania, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 58

429 F.3d 58

Shawn PARKER, v. Donald KELCHNER, Superintendent; Attorney General of Pennsylvania, Appellants.

No. 04-3286.

United States Court of Appeals, Third Circuit.

Argued October 19, 2005.

Filed November 8, 2005.

John G. Knorr, III (Argued), Thomas W. Corbett, Jr., Francis R. Filipi, Office of Attorney General, Harrisburg, PA, for Appellants Donald Kelchner and the Attorney General of Pennsylvania.

Linda J. Shorey, Amy L. Groff (Argued), David R. Fine, Kirkpatrick & Lockhart Nicholson Graham LLP, Harrisburg, PA, for Appellee Shawn Parker.

Before SCIRICA, Chief Judge, VAN ANTWERPEN and ALIDISERT, Circuit Judges.

VAN ANTWERPEN, Circuit Judge.

Before us is an appeal from an order of the District Court granting habeas corpus relief to Appellee Shawn Parker, a prisoner in the custody of the Commonwealth of Pennsylvania.¹ Without first raising the claim in state court, Parker argued to the District Court in his habeas petition that the Pennsylvania Board of Probation and Parole (the "Board") had, in denying him parole in 2003, applied the 1996 version of the Pennsylvania Parole Act (the "Parole Act") to his case for acts he committed before the enactment of that version of the Parole Act. Parker argued that the Board's application of this newer version of the Parole Act to his case violated the Ex Post Facto Clause of the United States Constitution. See U.S. Const. art. I, § 10. The District Court agreed and granted Parker's petition.

Appellants Donald Kelchner and the Attorney General of the Commonwealth of Pennsylvania argue that the District Court erred by reaching the merits of Parker's claim and concluding that the Parole Board improperly applied amendments to the Pennsylvania Parole Act in violation of the Ex Post Facto Clause because Parker never presented his claim in state court.

We have jurisdiction over this timely appeal by virtue of 28 U.S.C. § 1291. We exercise plenary review in a habeas proceeding over the district court's legal conclusions and review its factual findings for clear error. Mickens-Thomas v. Vaughn, 321 F.3d 374, 376 (3d Cir.2003). Because we conclude that Parker's failure to raise his claim in state court before filing his federal habeas petition rendered that claim unexhausted and therefore unreviewable by the District Court, we will vacate the grant of the writ and remand to the District Court.

I.

Because it is the Board's most recent parole decision that is at issue in this case, we recount Parker's criminal and parole history only briefly. Parker was convicted of robbery and burglary in September, 1983, and began serving aggregate sentences of three to fifteen years. Although his maximum term was originally to have expired in September, 1998, Parker has been repeatedly paroled then returned to prison for various offenses. As a result, Parker lost credit for the time he was out on parole, and the expiration of his maximum term was advanced to April, 2009.

On September 25, 2003, in its most recent parole decision, the Board refused parole to Parker. Parker then filed a petition for a writ of habeas corpus on April 19, 2004, in the United States District Court for the Middle District of Pennsylvania, in which he challenged that decision. In his petition, Parker argued that in its September 25, 2003, decision, the Board applied the new 1996 version of the Parole Act which allegedly created a new standard under which the Board was to evaluate parole applications. Parker claims this new standard is different than the standard that was in effect at the time of his 1983 conviction.² Parker claimed that this application of the 1996 Parole Act to his case violated the Ex Post Facto Clause of the United States Constitution.

Parker did not, however, pursue his ex post facto claim in state court before filing his federal habeas petition. In his federal habeas petition, Parker stated that he believed that presenting his claim in state court would have been a "fruitless effort" because the Pennsylvania Supreme Court had rejected claims similar to his in Winklespecht v. Pennsylvania Board of Probation and Parole, 571 Pa. 685, 813 A.2d 688 (2002). The matter was then transferred by consent of the parties³ to United States Magistrate Judge Thomas M. Blewitt, who, on August 5, 2004, granted Parker's petition.

In its decision, the District Court first concluded that although Parker had not presented his claims in state court, and despite the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A), his failure to exhaust his remedies in state court did not bar review of his claim in federal court. The District Court reasoned that because the state case law at the time of Parker's petition was unfavorable to his claim, it would have been futile for him to present his claim in state court and he was therefore excused from the requirement of § 2254(b)(1)(A) that he exhaust his claim in state court before filing his federal habeas petition. Addressing the merits of Parker's claim, the District Court determined that the 1996 Amendments to the Parole Act had changed the criteria for release and that the retroactive application of the 1996 Amendments to Parker violated the Ex Post Facto Clause. The District Court then granted Parker's petition and ordered the Board to re-adjudicate Parker's parole application under the Parole Act's pre-1996 standards. The Commonwealth filed this appeal and the District Court stayed its order pending the outcome of this appeal.

II.

An individual imprisoned by the Commonwealth of Pennsylvania may challenge the denial of his or her parole on Ex Post Facto grounds by bringing an action for mandamus in state court. Coady v. Vaughn, 251 F.3d 480, 489 (3d Cir.2001). Although Parker did not raise any such challenge in state court, he argues that the District Court properly concluded that he was excused from doing so because such action would have been futile. Appellants argue that Parker's petition should have been dismissed for failure to exhaust. We agree.

Under the federal habeas corpus statute, habeas relief

"shall not be granted" to a petitioner in custody pursuant to a state court judgment unless the petitioner "has exhausted the remedies available in the courts of the State." 28 U.S.C.

§ 2254(b)(1)(A). Exhaustion "addresses federalism and comity concerns by `affording the state courts a meaningful opportunity to consider allegations of legal error without interference from the federal judiciary.'" Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.1993) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986)). As the Second Circuit explained in Jones v. Keane,

"The exhaustion requirement springs primarily from considerations of comity between the federal and state judicial systems. By requiring exhaustion, federal courts recognize that state courts, no less than federal courts, are bound to safeguard the federal rights of state criminal defendants. Besides serving to minimize friction between our federal and state systems of justice, the exhaustion requirement has the salutary practical effect of enhancing the familiarity of state courts with federal constitutional issues."

329 F.3d 290, 295 (2d Cir.2003) (citations and internal quotation marks omitted). "The exhaustion requirement is not one to be overlooked lightly." Rutherford v. Neet, 149 F.3d 1191, 1191 (10th Cir.1998) (citation omitted).

The habeas statute makes clear that a petitioner does not exhaust his state remedies if "he has the right under the law of the state to raise, by any available procedure, the question presented." 28 U.S.C. § 2254(c). An exception to the exhaustion requirement exists, however, when there is no corrective State process available or existing circumstances render such process ineffective to protect the petitioner's rights. See 28 U.S.C. § 2254(b)(1)(B)(i) & (ii). "The habeas petitioner carries the burden of proving exhaustion of all available state remedies." Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir.1997). This Court has found the exhaustion requirement satisfied when a state's procedural rules prevent a petitioner from seeking further relief in the state courts. Whitney v. Horn, 280 F.3d 240, 250 (3d Cir.2002); Lines v. Larkins, 208 F.3d 153, 160 (3d Cir.2000).⁴

In this case, however, Parker does not claim to face a procedural barrier to bringing his claim in state court. Rather, he argues that the state's highest court has repeatedly denied claims identical to his own on the merits. He argues that the futility doctrine should be extended to cases such as his where there appears to be no possibility of success on the merits of his claim in state court.

To answer the question whether the futility of a claim on the merits renders that claim exhausted, we begin with the Supreme Court's decision in Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). In that case, the Court addressed the question — analogous to the question presented in this case — whether a petitioner who had procedurally defaulted a claim in state court could prove "cause" to excuse his default if his claim would have been futile on the merits in state court. 456 U.S. at 130, 102 S.Ct. 1558; see also Minter v. Beck, 230 F.3d 663, 666 (4th Cir.2000) (applying Engle to question whether failure to present claim in state court because of inability to obtain "successful result" in state court was grounds for excusing failure to exhaust claim).

The habeas petitioners in Engle had forfeited their objection to a jury instruction by failing to object to the instruction at trial. Id. at 112-17, 102 S.Ct. 1558. Addressing the question whether the petitioners' failure to raise their claim in state court before raising the claim in their federal habeas petitions rendered the claim unexhausted, the Court stated:

"We note at the outset that the futility of presenting an objection to the state courts cannot alone constitute cause for a failure to object at...