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.
The opinion of the court was delivered by: Van Antwerpen, Circuit Judge.
Before: SCIRICA, Chief Judge, VAN ANTWERPEN and ALIDISERT, Circuit Judges.
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.*fn1 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 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.
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 claims this new standard is different than the standard that was in effect at the time of his 1983 conviction.*fn2 Parker claimed that this 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*fn3 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 ...