                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1092




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Long v. PA Bd Probation" (2007). 2007 Decisions. Paper 1224.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1224


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 05-1092


                                  WENDELL LONG,

                                                Appellant

                                           v.

            PENNSYLVANIA BOARD OF PROBATION AND PAROLE


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 04-cv-00699)
                      District Judge: Hon. William W. Caldwell


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 13, 2007

                    BEFORE: SMITH and COWEN, Circuit Judges
                           and YOHN*, District Judge

                                (Filed: April 25, 2007)


                                       OPINION




*Honorable William H. Yohn Jr., Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
COWEN, Circuit Judge.

         Wendell Long appeals from the order of the United States District Court for the

Middle District of Pennsylvania denying his petition for a writ of habeas corpus under 28

U.S.C. § 2254. He challenges the District Court’s refusal to grant habeas relief on his

claim that he was denied parole in violation of the Ex Post Facto Clause of the United

States Constitution. Because Long has not exhausted his ex post facto claim in the

Pennsylvania courts, we will affirm the judgment of the District Court.

         We have jurisdiction over this 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. Parker v. Kelchner, 429 F.3d 58, 60 (3d Cir.

2005).

         Long challenges a May 22, 2003 decision of the Pennsylvania Board of Probation

and Parole (the “Board”), denying him parole. He argues that the Board’s application of

the 1996 version of Pennsylvania’s Parole Act (the “Parole Act”), in denying him parole

for acts he committed prior to the date of the enactment of that version of the Parole Act,

violated the Ex Post Facto Clause of the United States Constitution. Long concedes that

he did not exhaust his ex post facto claim in state court before filing his federal habeas

petition. In his federal habeas petition, he averred that he filed a petition for mandamus

review of the Board’s 2003 decision in the Commonwealth Court of Pennsylvania, but

did not seek review in the Pennsylvania Supreme Court “as any attempt to do so would

have been futile.” (App. at 24.) He apparently claims that exhaustion would be futile

                                              2
because in Finnegan v. Pennsylvania Board of Probation and Parole, 838 A.2d 684 (Pa.

2003), the Pennsylvania Supreme Court rejected the argument that application of the

1996 version of the Parole Act to a prisoner convicted prior to its enactment violates the

Ex Post Facto Clause.

       Long’s argument is essentially that futility on the merits in state court renders a

claim “exhausted” within the meaning of 28 U.S.C. § 2254(b)(1)(A). We rejected a

similar contention in Parker. 429 F.3d at 64. In Parker, we announced 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 in a federal

habeas petition.” Id. We reasoned that “[a]llowing 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. (citing Engle v.

Isaac, 456 U.S. 107, 128 (1982)).

       Based upon our decision in Parker, we are compelled to conclude that Long’s

failure to exhaust his ex post facto claim in the Pennsylvania courts is not excused on the

ground of likely futility on the merits. Because Long has not exhausted his ex post facto

claim, we will affirm the judgment of the District Court entered on December 29, 2004.

See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (court of appeals may affirm for

any reason supported by the record).

                                               3
