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


8-23-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3042




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Recommended Citation
"Simmons v. PA Bd Probation" (2006). 2006 Decisions. Paper 560.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/560


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DPS-299                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO: 04-3042

                               RICHARD M. SIMMONS,
                                             Appellant

                                             v.

            PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
                  PENNSYLVANIA ATTORNEY GENERAL
                           _______________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 04-cv-01001)
                      District Judge: Honorable John E. Jones III
                    _______________________________________

              Submitted Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                 August 10, 2006
      Before: FUENTES, VANANTWERPEN AND CHAGARES, Circuit Judges

                               (Filed: August 23, 2006 )
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Appellant Richard Simmons filed a petition pursuant to 28 U.S.C. § 2254 in the

United States District Court for the Middle District of Pennsylvania. He claimed that the

Pennsylvania Parole Board violated the Ex Post Facto Clause by applying the amended

version of the Parole Act of 1941, as amended, 61 P.S. § 331.1 et seq. Instead of
exhausting his claim in the state courts, see 28 U.S.C. § 2254(b)(1)(A), he brought the

claim immediately in the District Court arguing that it would be futile to pursue the claim

in Pennsylvania. The District Court overruled a Magistrate Judge’s report and

recommendation, and dismissed the petition without prejudice for failure to exhaust.

Simmons appealed.

       On December 17, 2004, we granted Simmons’ request for a certificate of

appealability stating:

       The foregoing request for a certificate of appealability is granted as to the
       following issue: whether the District Court erred in dismissing Appellant’s petition
       for writ of habeas corpus without prejudice for failure to exhaust state remedies.
       See 28 U.S.C. § 2254(b)(1)(A). In their briefs, the parties shall address whether
       exhaustion of state court remedies may be excused as futile based on the
       Pennsylvania Supreme Court’s unfavorable rulings on claims alleging that the
       application of the post-1996 Pennsylvania Parole Act standards violates the Ex
       Post Facto Clause. See Lines v. Larkins, 208 F.3d 153, 162 (3d Cir. 2000). If
       Appellant wishes for the Court to appoint counsel to represent him in this appeal
       under I.O.P. 10.3.2, he must submit a motion for leave to appeal in forma pauperis
       and an affidavit in support thereof not later than 21 days after the date of this
       order.

       Last year, we decided Parker v. Kelchner, 429 F.3d 58 (3d Cir. 2005). Parker also

involved a Pennsylvania inmate who attempted to raise an ex post facto challenge to the

Parole Board’s decision without first exhausting his claim. We held:

       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.

Id. at 64. We find no distinguishing elements between Parker and the instant case.

                                              2
Parker is dispositive and the claim is unexhausted.

       We note that Simmons’ claim is not necessarily procedurally defaulted. Under

Pennsylvania law, Simmons can challenge the denial of parole by petitioning for a writ of

mandamus. See Richardson v. Pennsylvania Bd. of Probation and Parole, 423 F.3d 282,

285 (3d Cir. 2005) citing Coady v. Vaughn, 778 A.2d 287, 290 (Pa. 2001) (explaining

that mandamus is the proper avenue for relief from the denial of a parole decision).

While we recognize that it is possible that Simmons should have filed his mandamus

petition within six months of issuance of the Parole Board’s decision, see 42 Pa.C.S. §

5522(b)(1); Tulio v. Beard, 858 A.2d 156, 160 (Pa. Cmwlth. 2004) (finding a six month

statute of limitation applicable in similar circumstances), in order for us to find procedural

default, 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. Although

several cases apply § 5522 to mandamus petition, none applies the provision in a context

similar to the one presented by the instant appeal. See, e.g., Township of Bensalem v.

Moore, 620 A.2d 76, 79-80 (Pa. Cmwlth. 1993) (citing several additional cases). As we

have stated on numerous occasions, “[i]f the federal court is uncertain how a state court



                                              3
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 Simmons’ § 2254

petition.




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