On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 02-cv-01885) District Judge: Honorable A. Richard Caputo
The opinion of the court was delivered by: Becker, Circuit Judge
Before: BARRY, FUENTES, and BECKER, Circuit Judges.
Robert Benchoff appeals from an order of the District Court denying his petition for a writ of habeas corpus claiming that he was denied due process by the Pennsylvania Board of Probation and Parole (the "Parole Board") when it failed to give a meaningful statement of reasons for denial of his parole. The determinative question on appeal, however, is whether a petition challenging the administration of a petitioner's sentence, such as Benchoff's parole claim, should be considered a "second or successive" petition over which the District Court lacked subject matter jurisdiction under 28 U.S.C. § 2244, if the petitioner had filed a prior petition that challenged the underlying conviction or sentence.
Examples of challenges to the administration of a sentence are those claims that raise issues relating to conditions of confinement, parole procedures, or calculation of good-time credits. In this case, Benchoff filed his first federal habeas corpus petition, which made claims related to the conduct of his trial and his conviction, only several months before filing the instant petition. We hold that because Benchoff's parole claim had ripened by that time, and he had no valid excuse for failing to raise the claim in his first petition, the District Court lacked subject matter jurisdiction and hence should have dismissed this petition as "second or successive" as required by § 2244. In making this determination, we will consult the abuse of the writ jurisprudence, which predated the passage of § 2244, concluding that the doctrine retains vitality as a tool for interpreting the term "second or successive" under § 2244.
We also reject Benchoff's claim that he was not required to raise his parole claim in his first habeas petition because he had not yet exhausted the claim in the Pennsylvania courts. We will therefore dismiss the appeal and remand to the District Court with instructions to dismiss the petition.
I. FACTS AND PROCEDURAL HISTORY
Benchoff was convicted of burglary, criminal trespass, simple assault, and two counts of interference with the custody of children in the Court of Common Pleas of Franklin County, Pennsylvania, on August 15, 1995. He first became eligible for parole from his sentence on December 16, 2000.
On June 27, 2002, Benchoff filed a federal habeas petition raising exhausted and unexhausted claims relating to the conduct of his criminal trial. The District Court denied the petition and no appeal was taken. Before any decision was rendered on his habeas petition, Benchoff filed the present federal habeas petition pursuant to 28 U.S.C. § 2254. *fn1 The gravamen of Benchoff's current petition is that the Parole Board violated his right to due process by failing to provide him with an adequate statement of reasons for denying him parole.
Benchoff was first reviewed for parole in 2000. The notice of denial of parole stated only that the Board "has determined that the fair administration of justice cannot be achieved through your release on parole." In 2001 and 2002, Benchoff was again reviewed and again denied for parole. Each time, the notice of denial used the same "fair administration of justice" language. Benchoff then filed this federal habeas petition. Approximately two weeks after Benchoff filed this petition, the Parole Board modified its 2002 decision and provided Benchoff with additional information regarding the reasons for denial of parole. *fn2
Since filing this petition, Benchoff has filed two more federal habeas petitions (on May 7, 2003 and July 25, 2003). Each of these petitions claims that it was a violation of the ex post facto clause of the United States Constitution for the Parole Board to use the 1996 amendment to Pennsylvania's parole procedures in making Benchoff's parole decision because the 1996 amendment was not in effect at the time of Benchoff's 1995 conviction.
The Magistrate Judge recommended that the present petition and the May 7, 2003 petition be granted and suggested that the Parole Board should be required to provide Benchoff with a statement of reasons for denial of parole. The District Court, however, declined to adopt the Magistrate Judge's recommendations, concluding that Benchoff did not have a due process right to a statement of reasons. The District Court held that a petitioner has no procedural right to a statement of reasons for denial of parole because neither federal nor Pennsylvania state law creates a substantive liberty interest in parole. The District Court did not address ...