Simmons v. Pennsylvania Board of Probation & Parole ( 2006 )

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Precedential or Non-Precedential: Non-Precedential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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"Simmons v. PA Bd Probation" (2006). 2006 Decisions. Paper 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DPS-299 NOT PRECEDENTIAL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.
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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
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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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