                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2006

Bornheimer v. PA Bd Probation
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1204




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       NO. 05-1204

                          RANDY ARTHUR BORNHEIMER,
                                            Appellant

                                            v.

             PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
                       HARRY WILSON, Superintendent
                   ____________________________________

                    On Appeal From the United States District Court
                        For the Western District of Pennsylvania
                               (D.C. Civ. No. 03-cv-00375)
                     District Judge: Honorable Sean J. McLaughlin
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    April 14, 2006

          Before: MCKEE, FUENTES AND NYGAARD,, CIRCUIT JUDGES

                                  (Filed:May 19, 2006)

                               _______________________

                                      OPINION
                               _______________________

PER CURIAM

       Appellant, Randy Bornheimer, a Pennsylvania inmate proceeding pro se, appeals

an order of the United States District Court for the Western District of Pennsylvania

dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
       In 1990, Bornheimer was convicted of numerous sexual offenses and received a

sentence of nine years nine months to twenty-five years imprisonment. The Pennsylvania

Board of Probation and Parole (“Board”) has denied Bornheimer parole from his sentence

on at least five occasions, with the denial at issue in the underlying § 2254 petition

occurring on October 22, 2003. The Board’s October 22 nd written decision reads in part:

              Following an interview with you and a review of your file,
              and having considered all matters required pursuant to the
              Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq., the
              Board of Probation and Parole, in the exercise of its
              discretion, has [] determined at this time that: your best
              interests do not justify or require you being paroled/reparoled;
              and, the interests of the Commonwealth will be injured if you
              were paroled/reparoled. Therefore, you are refused
              parole/reparole at this time.

The Board further listed as reasons for its decision: Bornheimer’s version of the nature

and circumstances of the offenses committed; his lack of remorse; his need to participate

in and complete additional institutional programs (i.e., batterer’s intervention); and the

fact that appellant submitted a home plan with children, thereby demonstrating a lack of

insight into his crime.

       The following month Bornheimer filed the underlying § 2254 petition in the

District Court alleging that the Board’s decision violated the Ex Post Facto Clause of the

United States Constitution by retroactively applying the 1996 amendments to the

Pennsylvania Parole Act (“Act”). Bornheimer conceded that he did not exhaust state-

court remedies, but contended that exhaustion would be futile based, inter alia, upon the

Pennsylvania Supreme Court’s holdings in Winklespecht v. Pennsylvania Bd. of
Probation and Parole, 813 A.2d 688 (Pa. 2002), and Finnegan v. Pennsylvania Bd. of

Probation and Parole, 838 A.2d 684 (Pa. 2003). The respondents filed a motion to

dismiss, contending that Bornheimer did not exhaust state court remedies and that he

should not be permitted to circumvent this requirement based upon his speculation that he

is unlikely to succeed on the merits in state court.

       The Magistrate Judge to whom Bornheimer’s petition was referred concluded

initially that appellant failed to exhaust his state court remedies. The Magistrate Judge

further determined that Bornheimer’s ex post facto claim had since been procedurally

defaulted, that he failed to establish cause and prejudice to overcome the default, and that

the miscarriage of justice exception did not apply. Additionally, the Magistrate Judge

issued an alternative conclusion that Bornheimer’s claim lacked merit. Accordingly, the

Magistrate Judge recommended that the petition be dismissed. Over Bornheimer’s

objections, the District Court adopted the Report and dismissed Bornheimer’s habeas

petition. A timely appeal followed, and we granted Bornheimer a certificate of

appealability on the issue of whether the District Court properly dismissed his petition on

grounds of procedural default, or on the alternative ground that his ex post facto challenge

to the Parole Board’s decision lacked merit.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. §§ 1291 and

2253. We exercise plenary review 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). While this appeal was proceeding through the briefing stage, we issued our
decision in Parker v. Kelchner, 429 F.3d 58 (3d Cir. 2005), wherein, citing the Supreme

Court’s decision in Engle v. Isaac, 456 U.S. 107, 128 (1982), we held that:

       likely futility on the merits ... in state court of a petitioner’s habeas claim
       does not render that claim “exhausted” within the meaning of §
       2254(b)(1)(A) so as to excuse the petitioner’s failure to exhaust that claim
       by presenting it in state court before asserting [it] in a federal habeas
       petition. Allowing petitioners to bypass state court merely because they
       believe that their constitutional claims would have failed there on the merits
       would fly in the face of comity and would deprive state courts of a critical
       opportunity to examine and refine their constitutional jurisprudence.

Parker v. Kelchner, 429 F.3d at 64.

       Contrary to Bornheimer’s assertion that Pennsylvania case law has “ruled out a

writ of mandamus process in the state Commonwealth Court,” see Aplt’s Letter of

12/7/05 submitted pursuant to Fed. R. App. P. 28(j), we recently recognized that the

Pennsylvania Supreme Court’s decision in Cimaszewski v. Board of Probation and

Parole, 868 A.2d 416, 427 (Pa. 2005), “had squarely answered in the affirmative that the

1996 Amendments had changed the substantive criteria for parole in Pennsylvania and

that a petitioner who could demonstrate individual disadvantage from retroactive

application of the 1996 Amendments could prevail on an ex post facto claim.” Parker,

429 F.3d at 64 n.5, citing Richardson v. Pennsylvania Bd. of Probation and Parole, 423

F.3d 282, 290 (3d Cir. 2005). As we made clear in Parker, the state courts should be

given the first opportunity to review a habeas petitioner’s ex post facto claim.

Bornheimer admittedly failed to exhaust his ex post facto claim by presenting it to the

Commonwealth Court of Pennsylvania in a petition for writ of mandamus. See Coady v.

Vaughn, 251 F.3d 480, 489 (3d Cir. 2001). As such, we agree with appellees that Parker
is dispositive of the exhaustion issue and, ultimately, of this appeal.

       We note that, as correctly stated by appellees, the District Court characterized the

available avenue of exhaustion as one of appeal although, under Pennsylvania law, parole

decisions are “generally not subject to judicial review unless the petitioner asserts a

constitutional challenge to the denial of parole or seeks a writ of mandamus to compel the

Parole Board to exercise its discretion.” Richardson, 423 F.3d at 285, citing Coady v.

Vaughn, 778 A.2d 287, 290 (Pa. 2001). We thus cannot agree with the District Court’s

conclusion that Bornheimer’s claim is procedurally defaulted as a result of his failure to

file an appeal. However, we likewise cannot agree with appellees’ contention that

Bornheimer’s ex post facto claim is procedurally defaulted because he failed to file a

mandamus petition within six months of issuance of the Parole Board’s decision as

appellees maintain is required by 42 Pa.C.S. § 5522(b)(1). See Aples’ Brief at 14 n.4,

citing Tulio v. Beard, 858 A.2d 156, 160 (Pa. Cmwlth. 2004).

       State law must “clearly foreclose state court review of [the] unexhausted claim[].”

Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir.1993). As explained by the Supreme Court

in James v. Kentucky, 466 U.S. 341, 348-351 (1984), only a “firmly established and

regularly followed state practice” may be interposed by a state to prevent subsequent

review in federal court of a federal constitutional claim. We are not convinced that §

5522(b)(1) fits this bill. Appellees cite to only one case that mentions this limitation of §

5522(b)(1), and we have found no cases applying that provision in a context similar to the

one presented by the instant appeal. As we have stated on numerous occasions, “[i]f the
federal court is uncertain how a state court would resolve a procedural default issue, it

should dismiss the petition for failure to exhaust state remedies even if it is unlikely that

the state court would consider the merits to ensure that, in the interests of comity and

federalism, state courts are given every opportunity to address claims arising from state

proceedings.” Lines v. Larkins, 208 F.3d 153, 163 (3d Cir. 2000), citing Doctor v.

Walters, 96 F.3d 675 (3rd Cir.1996). We will therefore affirm the District Court’s order

dismissing Bornheimer’s § 2254 petition, but reform that order as being a dismissal

without prejudice for failure to exhaust state court remedies. Given the foregoing

exhaustion analysis, we find it unnecessary to address the merits of Bornheimer’s claim.

       We further deny Bornheimer’s request for leave to file a supplemental brief. Even

aside from the fact that Bornheimer’s request is rendered moot by our disposition of this

appeal, our decision in Richardson v. Pennsylvania Board of Probation and Parole, 423

F.3d 282 (3d Cir. 2005), was cited and addressed in appellees’ brief. As appellees state,

Bornheimer was free to submit a reply brief answering appellees’ argument in accordance

with the ordinary briefing process. See Fed. R. App. P. 28(c) and 31(a). He chose not to

file any such brief. As for our decision in Parker v. Kelchner, both parties have submitted

letters pursuant to Fed. R. App. P. 28(j), which contain argument and have been

considered by the Court. Moreover, Bornheimer presents no exceptional circumstances

which warrant the filing of a supplemental brief. See United States v. Pelullo, 399 F.3d

197, 222 (3d Cir. 2005). Rather, Bornheimer merely seeks an opportunity to present a

“slant” on his futility argument – one that he admits was not raised before the District
Court. Bornheimer attempts to justify this omission by simply explaining that, prior to

our issuance of Parker, he “did not feel it necessary to advance every reason why

exhaustion should be excused.” See Motion for Permission to File Supplemental Brief at

¶ 11. This Court has, however, consistently held that it will not consider issues (even

apparently meritless ones) that are raised for the first time on appeal. Harris v. City of

Philadelphia, 35 F.3d 840, 845 (3d Cir. 1994).

       Accordingly, for the reasons stated, we will affirm the District Court’s judgment.
