                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2005

Parker v. Kelchner
Precedential or Non-Precedential: Precedential

Docket No. 04-3286




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                                          PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT


                        No. 04-3286




                     SHAWN PARKER,


                                v.

          DONALD KELCHNER, Superintendent;
       ATTORNEY GENERAL OF PENNSYLVANIA,

                                      Appellants.




       On Appeal from the United States District Court
           for the Middle District of Pennsylvania
                (D.C. Civil No. 04-CV-0837)
       Magistrate Judge: Honorable Thomas M. Blewitt


                  Argued: October 19, 2005

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

                  (Filed: November 8, 2005)

John G. Knorr, III (Argued)
Thomas W. Corbett, Jr.
Francis R. Filipi
Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel 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
17 North Second Street, 18 th Floor
Harrisburg, PA 17101

Counsel for Appellee Shawn Parker




                      OPINION OF THE COURT




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

       1
        Before the oral argument in this case took place on October
19, 2005, counsel informed us that the Pennsylvania Board of
Probation and Parole had elected to grant Parker parole to a
halfway house. Because at the time of this writing it is unknown
what conditions, if any, the Board will impose on Parker, we will
leave to the District Court to determine whether subsequent events
render this matter moot.


                                 2
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

                                 3
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



       2
        From its enactment in 1941 until 1996, Section 1 of the
Parole Act read as follows:

                      “The value of parole as a disciplinary
              and corrective influence and process is
              hereby recognized, and it is declared to be the
              public policy of this Commonwealth that
              persons subject or sentenced to imprisonment
              for crime shall, on release therefrom, be
              subjected to a period of parole during which
              their rehabilitation, adjustm ent and
              restoration to social and economic life and
              activities shall be aided and facilitated by
              guidance and supervision under a competent
              and efficient parole administration, and to
              that end it is the intent of this act to create a
              uniform and exclusive system for the
              administration of parole in this
              Commonwealth.”

Act of August 6, 1941, P. L. 861, § 1, formerly codified at Pa. Stat.
Ann., tit. 61, § 331.1 (Purdon). In 1996, Section 1 was amended to
read:

                      “The parole system provides several
              benefits to the criminal justice system,
              including the provision of adequate
              supervision of the offender while protecting
              the public, the opportunity for the offender to
              become a useful member of society and the
              diversion of appropriate offenders from
              prison.

                     In providing these benefits to the
              criminal justice system, the board shall first
              and foremost seek to protect the safety of the

                                  4
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, 813
A.2d 688 (Pa. 2002). The matter was then transferred by consent
of the parties 3 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


              public. In addition to this goal, the board shall
              address input by crime victims and assist in
              the fair administration of justice by ensuring
              the custody, control and treatment of paroled
              offenders.”

Pa. Stat. Ann., tit. 61, § 331.1, as amended by Act of December 18,
1996, P. L. 1098, No. 164, § 1.
       3
        The parties consented to have the Magistrate Judge conduct
all proceedings and enter judgment pursuant to 28 U.S.C. § 636(c).

                                  5
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 such any 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 (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

                                 6
              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




       4
        The District Court relied on § 2254(b)(1)(B) in concluding
that because of unfavorable state case law, Parker was not required
to present his claim in state court. See District Court Slip Op. at
*7. We think that reliance was misplaced: although the District
Court failed to specify whether it was relying on § 2254(b)(1)(B)(i)
(excusing exhaustion for claims that are barred because petitioner
failed to comply with state procedural rules) or (ii) (excusing
exhaustion where state court procedure necessary to obtain relief
sought by petitioner does not exist), Parker does not claim that he
failed to comply with applicable Pennsylvania court rules or that
the specific state court procedure needed to grant the relief that he
seeks does not exist in Pennsylvania.

                                 7
        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 (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; 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. 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 trial. If a defendant perceives a
               constitutional claim and believes it may find
               favor in the federal courts, he may not bypass
               the state courts simply because he thinks they
               will be unsympathetic to the claim. Even a
               state court that has previously rejected a
               constitutional argument may decide, upon
               reflection, that the contention is valid.”



                                  8
Id. at 130. The Court went on to state that futility on the merits did
not constitute cause for failure to raise a claim in state court merely
when the claim “was unacceptable to that particular court at that
particular time.” Id. at n.35 (citations and quotation marks
omitted).

        Our sister Circuits that have considered the issue have
similarly concluded that the exhaustion requirement is not excused
merely because a petitioner’s claim will likely be denied on the
merits in state court. See Jones, 329 F.3d at 295 (“[T]he fact that
the [state court] may have been unlikely to grant habeas relief on
his [constitutional claim] does not cure his failure to have raised it
in state courts.”); Minter, 230 F.3d at 666 (refusing to excuse
failure to raise claim in state court, observing that while effort to
obtain state court relief may have been “incapable of producing a
successful result, the effort [of raising the claim in state court] was
still possible”); Scott v. Mitchell, 209 F.3d 854, 871 (6th Cir. 2000)
(observing that Supreme Court has rejected argument that claim’s
futility on the merits excuses failure to raise claim in state court);
White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993) (“Federal-state
comity demands that a habeas petitioner first give the state courts
an opportunity to pass on his federal claims, even if those courts
would be expected to view such claims unfavorably.”); Roberts v.
Arave, 847 F.2d 528, 530 (9th Cir. 1988) (concluding that
“apparent futility” of presenting claims in state court did not excuse
failure to do so); Waldrop v. Jones, 77 F.3d 1308, 1315 (11th Cir.
1996) (declining to excuse failure to exhaust claims in state court;
“[e]ven if it was unlikely that [petitioner’s] claim would have been
well-received in state court, [petitioner] should have presented it”).

        We acknowledge that there is a concurring opinion in this
Circuit for that favors extension of the futility doctrine to cases in
which the state court has ruled adversely on a similar claim. See
DeFoy v. McCullough, 393 F.3d 439, 448 (3d Cir. 2005) (Weis, J.,
concurring) (“The exhaustion of state remedies requirement is
excused when resort to the state courts would be futile.”) The
United States Supreme Court has also arguably lent some support
to this interpretation of the futility doctrine:




                                  9
              “Petitioner did not advance his ex post facto
              claim in state court. In the District Court
              respondents challenged his failure to exhaust
              his state remedies, but do not appear to have
              raised the exhaustion issue in the Court of
              Appeals; nor have they raised it in this Court.
              Presumably they are satisfied, as we are, that
              exhaustion would have been futile.

Lynce v. Mathis, 519 U.S. 433, 436 n.3 (1997).

        While we acknowledge Lynce and Judge Weis’s concurring
opinion in DeFoy, we agree with our sister Circuits that have
reasoned that likely futility on the merits does not excuse a failure
to exhaust a claim in state court. Lynce is distinguishable because
that case did not address the question whether futility on the merits
constituted cause for default and, moreover, did not dispute the
reasoning adopted in Engle that a habeas petitioner could not
“bypass” the state courts on and claim exhaustion on the ground
that his claim would be been denied there on the merits.

        Furthermore, we do not believe that the situation upon
which Judge Weis predicated his concurrence in DeFoy – that
presentation of the claims at issue in state court would have been
futile – is clearly present in this case. The Pennsylvania Supreme
Court’s willingness to repeatedly revisit the issue presented in this
case demonstrates the unsettled and evolving nature of its
jurisprudence on this point, and in light of the progression of that
Court’s decisions on this issue, we cannot agree that the outcome
of Parker’s claim in state court was a foregone conclusion.5



       5
        The Pennsylvania Supreme Court first addressed the ex
post facto implications of the changes to the parole laws in
Winklespecht v. Pennsylvania Board of Probation and Parole, 813
A.2d 688, 691 (Pa. 2002). In that case, Justice Eakin reasoned that
the 1996 Amendments did not create a new offense, increase the
penalty for an existing offense, or create a substantial risk that
parole would be denied more frequently, and therefore it did not
violate the Ex Post Facto Clause. Id. at 691-92. Winklespecht,

                                 10
however, featured the opinions of four different judges and no clear
majority opinion emerged.

        Following Winklespecht, we weighed in on the Ex Post
Facto question in Mickens-Thomas v. Vaughn, 321 F.3d at 392. In
Mickens-Thomas, we concluded that the Parole Board interpreted
the amendments to the parole statute in a way that fundamentally
altered the parole application reviewing process by placing primary
importance on public safety as a consideration of whether to grant
parole. Id. at 384-85. The Pennsylvania Supreme Court responded
in Finnegan v. Pennsylvania Board of Probation and Parole, 838
A.2d 684, 690 (Pa. 2003), recognizing our decision in Mickens-
Thomas, but also noting its limited application. It then took the
opportunity to “reiterate that the 1996 revision of § 331.1 of the
Parole Act does not violate the ex post facto clause when applied
to a prisoner convicted prior to the revision.” Id.

       Shortly thereafter, a plurality of the Pennsylvania Supreme
Court took the opportunity in Hall v. Pennsylvania Board of
Probation and Parole, 851 A.2d 859, 865 (Pa. 2004), to expressly
disagree with our decision in Mickens-Thomas. Hall, however,
offered no further Ex Post Facto analysis.

       Most recently, the Pennsylvania Supreme Court revisited the
1996 parole amendments in Cimaszewski v. Pennsylvania Board
of Probation and Parole, 868 A.2d 416, 427 (Pa. 2005). Although
again fragmented, a clear majority of the court explicitly rejected
Finnegan and held that “under Garner [v. Jones, 529 U.S. 244
(2000)] and [California Dept. of Corrections v.] Morales, [514 U.S.
499 (1995),] the 1996 amendment may be shown to violate the ex
post facto clause if an inmate is able to demonstrate that the 1996
amendment, as applied to him, creates a significant risk of
prolonging his incarceration.” Id. In our recent decision in
Richardson v. Pennsylvania Board of Probation and Parole,
__ F.3d __, 2005 WL 215505 (3d Cir. Sept. 8, 2005), we
recognized that the Cimaszewski decision had squarely answered
in the affirmative that the 1996 Amendments had changed the
substantive criteria for parole in Pennsylvania and that a petitioner

                                 11
                                 III.

        We agree with our sister Circuits and hold here that likely
futility on the merits (even if it were present here) 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 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
an critical opportunity to examine and refine their constitutional
jurisprudence. See Engle, 456 U.S. at 128. We believe that the
state courts should have been given the opportunity to review
Parker’s ex post facto claim, and, accordingly, we will vacate the
District Court’s grant of habeas corpus.




who could demonstrate individual disadvantage from retroactive
application of the 1996 Amendments could prevail on an ex post
facto claim. Id. at *8.

                                  12
