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


9-29-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4641




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"Thomas v. PA Bd Probation" (2006). 2006 Decisions. Paper 407.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/407


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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4641


                                ROBERT M. THOMAS,

                                                Appellant

                                           v.

            PENNSYLVANIA BOARD OF PROBATION AND PAROLE;
               PENNSYLVANIA ATTORNEY GENERAL OFFICE



                     Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 04-cv-01171)
                    District Judge: Honorable Christopher C. Conner


                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 28, 2006

                      Before: McKEE and AMBRO, Circuit Judges
                               RESTANI,* Chief Judge

                          (Opinion filed September 29, 2006 )




                                       OPINION



  *
    Honorable Jane A. Restani, Chief Judge, United States Court of International Trade,
sitting by designation.
AMBRO, Circuit Judge

       Robert M. Thomas seeks a writ of habeas corpus under 28 U.S.C. § 2254 because

of the denial of his parole by the Pennsylvania Board of Probation and Parole (the

“Board”).1 At the time of the Board’s decision in 2004, it was operating under

Pennsylvania’s recently amended Parole Act (the “Act”). Act of Dec. 18, 1996, 1996 P.L.

1098, No. 164, § 1 (codified at 61 Pa. Cons. Stat. § 331.1). The amendments had the

effect of placing more weight on considerations of public safety than was previously the

case in the Board’s parole decisions. See Mickens-Thomas v. Vaughn, 321 F.3d 374,

385–86 (3d Cir. 2003). This, of course, had the potential to make it more difficult for

state prisoners to be granted parole. As a result, Pennsylvania’s retroactive application of

the new standard to prisoners sentenced before the Act had taken effect raised ex post

facto concerns. See U.S. C ONST. art. I, § 10, cl. 1.

       Prior to the denial of parole that is challenged here, Thomas similarly had been

denied parole in 2001. Raising the same ex post facto concerns as in this petition, he filed

for mandamus review of the former denial and pursued that claim through the

Pennsylvania court system to the Pennsylvania Supreme Court. That Court reserved

decision in Thomas’s case until it issued an opinion in Finnegan v. Pa. Bd. of Probation

& Parole, 838 A.2d 684 (Pa. 2003). Finnegan resolved for the Pennsylvania



  1
    Our review of the District Court’s denial of Thomas’s petition is plenary. Richardson
v. Pa. Bd. of Probation & Parole, 423 F.3d 282, 287 n.3 (3d Cir. 2005).

                                               2
courts—temporarily, as it turned out—the questions that had been swirling about the Act

and its effect on parole determinations. The Court ruled that the Ex Post Facto Clause

was not violated by the Act’s retroactive application. Id. at 690.2

       It was in the face of Finnegan that Thomas filed in federal court the petition that is

the subject of this appeal. As did his Pennsylvania mandamus case, which challenged the

first denial of his parole, Thomas’s habeas petition here challenges the second denial of

his parole on ex post facto grounds. For federal courts to rule on petitions challenging

state custody, petitioners generally must have exhausted all state-law remedies. 28 U.S.C.

§ 2254(b), (c); Doctor v. Walters, 96 F.3d 675, 681 (3d Cir. 1996). Thomas readily

admits that he has not pursued a challenge to his second denial of parole in the

Pennsylvania courts, but asserts that the doctrine of futility excuses his failure to exhaust.

See Whitney v. Horn, 280 F.3d 240, 252 (3d Cir. 2002); Toulson v. Beyer, 987 F.2d 984,

987 (3d Cir. 1993).3 His reasoning is that because the Pennsylvania Supreme Court in

Finnegan had recently rejected an ex post facto challenge to the Act (indeed, it had

reserved decision on Thomas’s own earlier challenge pending its decision in Finnegan), it

would have been futile for him to raise the same claim to the same Court so soon.


  2
   Some background is helpful. After a splintered decision in Winklespecht v. Pa. Bd. of
Probation & Parole, 813 A.2d 688 (Pa. 2002), (which ostensibly held that the Act did not
violate the Ex Post Facto Clause), followed by this Court’s decision in Mickens-Thomas
(which ruled to the contrary), the Pennsylvania Supreme Court’s exact position on the
issue was unclear until its ruling in Finnegan.
  3
   The exhaustion requirement is not jurisdictional in nature. See Rose v. Lundy, 455
U.S. 509, 518 (1982).

                                              3
       Our Court’s decision in Parker v. Kelchner, 429 F.3d 58 (3d Cir. 2005), issued

after Thomas filed this petition, forecloses his argument. In Parker, “we agree[d] with

our sister Circuits . . . that likely futility on the merits does not excuse a failure to exhaust

a claim in state court.” Id. at 63. “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.” Id. at 64 (citing Engle v. Isaac,

456 U.S. 107, 128 (1982)). As Parker noted, see 429 F.3d at 64 n.5, the Pennsylvania

Supreme Court eventually overruled Finnegan with its decision in Cimaszewski v. Bd. of

Probation & Parole. See 868 A.2d 416, 426–27 (Pa. 2005) (holding that “changes in the

laws governing parole may violate the ex post facto clause.” (double emphasis in

original)).4

       Thomas has failed to exhaust his ex post facto claim in the Pennsylvania courts.

We therefore will affirm the judgment of the District Court.




  4
   Cimaszewski essentially harmonizes the Pennsylvania Supreme Court’s jurisprudence
on this issue with ours. We limited our holding in Mickens-Thomas by ruling in
Richardson that Mickens-Thomas did not establish a per se rule that the Act violated the
Ex Post Facto Clause. Like Cimaszewski, Richardson endorsed a more individualized
approach. Compare Richardson, 423 F.3d at 289–91, with Cimaszewski, 868 A.2d at
426–27.

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