IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

DONALD BARTO, )

Petitioner, ) Civil Action No. 05-294 ERIE

)

v. )

) District Judge McLaughlin

MARILYN BROOKS, et al., ) Magistrate Judge Baxter

Respondents. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that this petition for writ of habeas corpus be dismissed and

a certificate of appealability be denied.

II. REPORT

A. Relevant Factual and Procedural History

Petitioner Donald Barto is a state prisoner incarcerated at the State Correctional Institution

at Albion, Pennsylvania. He is serving a sentence of 3 to 15 years for his conviction of three counts

of Sexual Abuse of Children. Sentence was imposed on February 13, 2002, by the Court of

Common Pleas of Beaver County, Pennsylvania.

Petitioner challenges the Pennsylvania Board of Probation and Parole's decision to deny him

parole on May 2, 2005. Petitioner asserts that the Board's action violates the Ex Post Facto Clause

in that the Board is requiring him to participate in a sex offender's program as a prerequisite to

release on parole. This, he asserts, is a new statutory requirement imposed after he was sentenced

and, hence, is an Ex Post Facto violation. Petitioner cites to Mickens-Thomas v. Vaughn, 321 F.3d

374 (3d Cir.) ("Mickens-Thomas I"), cert.denied sub. nom. Gillis v. Hollawell, 540 U.S. 875 (2003),

in support of his claim. In Petitioner's view, Mickens-Thomas requires that he be released from

custody due to the Board's improper requirement that he participate in a sex offenders program.

Petitioner also asserts that he has a right to parole under Pennsylvania statutory law, and that the

Board's decision to deny him parole is a violation of due process.

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The Commonwealth, by the Attorney General of Pennsylvania, has filed a response

(Document # 3) and a supplemental response (Document # 4). Petitioner has filed a reply

(Document # 8) and the petition is now ripe for disposition.

B. Exhaustion

Petitioner concedes that he never attempted to appeal the Board's 2005 decision. Where a

challenge is based on the Board's application of new statutory requirements, an ex post facto

challenge may be brought in the Commonwealth Court. Coady v. Vaughn, 564 Pa. 604, 770 A.2d

287, 290 (2001). Petitioner does not contest that such a remedy was available to him in the state

courts, but asserts that it would have been futile since the state courts do not agree with his ex post

facto claim, as evidenced by the state courts’ prior rulings on similar claims by other inmates.

Recent precedent from the Court of Appeals for the Third Circuit requires that this court reject

Petitioner's futility argument.

In Parker v. Kelchner, 429 F.3d 58, 61 (3d Cir. 2005), the district court granted relief to a

petitioner who challenged the Board's denial of parole on ex post facto grounds. The district court

reached the merits of the claim only after finding that exhaustion was excused due to the futility of

raising an ex post facto claim in the Pennsylvania courts. The Court of Appeals reversed, and

dismissed the petition, finding that the lower court committed error by excusing exhaustion of an ex

post facto claim. "[S]tate courts should have been given the opportunity to review [a petitioner's]

ex post facto claim . . .." 429 F.3d at 64. The same result necessarily applies here with respect to

Barto's ex post facto claim. Available state court remedies have not been exhausted with respect to

the ex post facto challenge. Parker teaches that such claims must be dismissed absent exhaustion

of available state court remedies.

Petitioner, however, does not need to exhaust state court remedies with respect to his due

process challenge. DeFoy v. McCullough, 393 F.3d 439, 445 (3d Cir. 2005)("we conclude that

claims of constitutional violations in the denial of parole in Pennsylvania need not be presented to

the state courts via a petition for writ of mandamus in order to satisfy the requirement of

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exhaustion."). Thus, this is a "mixed" petition containing both an unexhausted claim and one as to

which exhaustion is not required. Normally, mixed petitions should be dismissed for failure to

exhaust state court remedies. Rose v. Lundy, 455 S.Ct. 509 (1982). However, dismissing a "mixed"

petition such as this can cause a petitioner to run afoul of AEDPA's statute of limitations while he

is engaged in exhausting state court remedies. Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).

Hence, dismissal of this petition on the basis of non-exhaustion would not be an appropriate

disposition. Id. The court in Crews recommended staying the petition pending exhaustion, but,

rather than stay these proceedings, the court will opt to address petitioner's claims on the merits. 28

U.S.C. §2254(b)(2).

C. Discussion

Petitioner's ex post facto claim is premised upon a 2000 amendment to the Pennsylvania

Parole Act which he alleges was applied to him even though his offenses occurred prior to that time.

Specifically, Petitioner complains about 42 Pa.C.S.A. § 9718.1, enacted in 2000, which requires that

all persons convicted of sex offenses against minors participate in a Department of Corrections sex

offenders program. Persons who do not participate "shall not be eligible for parole." Petitioner's

claim fails on the merits because: (1) the challenged section was clearly not applied to him; and (2)

there were several other reasons given for denying parole in this case, preventing Petitioner from

proving individual disadvantage from the asserted change in Pennsylvania's parole law.

First, there is no indication that the Parole Board even applied § 9718.1 in this case. The

comment to § 9718.1 notes that it is applicable only to offenses committed on or after its effective

date. Therefore, the Board would have been violating state law if it applied § 9718.1, and there is

no reason to believe it intended such a result. Further, the Board's May 2, 2005, decision denying

parole lists several reasons for its action, only one of which noted Petitioner's "need to participate

in and complete additional institutional programs." (Doc. No. 3, Exhibit 2). No mention is made of

§ 9718.1 in the Board's order. Had that section been applied by the Board, there would have been

no need for the Board to address any other issue since denial of parole would have been required

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under § 9718.1. In fact, it is apparent that the Board did not believe its actions to be dictated by 

§ 9718.1 in this case. Instead, the Board chose to exercise its discretion to require participation in

a sex offender program, a practice which Pennsylvania permitted long before the 2000 amendment

to the Parole Act. See Weaver v. Board of Probation and Parole, 688 A.2d 766 (Pa.Cmwlth.

1997)(parole denied for failure to complete sex offender program). There is no reason to believe that

the Board applied § 9718.1 in this case and, accordingly, Petitioner cannot establish that the change

in the law had any effect on the Board's decision to deny him parole.

Second, even if § 9718.1 had been applied in this case, the record reflects that the Board had

several other reasons for denying parole, each of them individually sufficient to support its decision.

Indeed, the Board noted Petitioner's version of the events, which led it to comment that he was

engaging in "minimization of what amounts to stalking behavior in [Petitioner's] own home." Even

where a new law has been applied in the parole context, the Court of Appeals has recently reaffirmed

that a petitioner must establish individual prejudice from the application of the new provision before

relief is appropriate on an ex post facto claim:

In our recent decision in Richardson v. Pennsylvania Board of

Probation and Parole, 423 F.3d 282, 2005 WL 2155505 (3d Cir. Sept.

8, 2005), we recognized that the Cimaszewski decision had squarely

answered in the affirmative that the 1996 Amendments had changed

the substantive criteria for parole in Pennsylvania and that a

petitioner who could demonstrate individual disadvantage from

retroactive application of the 1996 Amendments could prevail on

an ex post facto claim. Id. at *8.

Parker, 429 F.3d at 64(emphasis added). Petitioner's burden, then, is to show that the 2000

amendment and addition of § 9718.1, as applied in this case, created a significant risk that his

incarceration would be prolonged. Richardson, supra. He has not established "individual

disadvantage" since the reasons set forth by the Board for denying parole are entirely in line with the

pre-2000 requirements of the Parole Act. See, e.g., Mickens-Thomas I, 321 F.3d at 378. Further,

unlike the Board's decision in Mickens-Thomas I, the Board's May 2, 2005 decision in this case

cannot reasonably be read as even applying the new change in the law, and there are several other

bases for denying parole relied upon by the Board. Therefore, as required under Richardson,

Petitioner has not shown that he was personally disadvantaged by application of the 2000

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amendments. Compare, Rivera v. Gillis, 2006 WL 208803 (M.D.Pa. 2006)(specific reasons for

denying parole were reasons appropriately considered pre-amendment).

Petitioner's due process claim fairs no better. The Board's decision denying him parole

denies him due process, Petitioner asserts, because it has denied him his state-created "right" to

parole. Petitioner misreads Pennsylvania law. In fact, parole is not guaranteed under Pennsylvania

law. Tubbs v. Pennsylvania Bd. of Probation and Parole, 620 A.2d 584, 586 (Pa. Commw. Ct. 1993)

("it is well settled under Pennsylvania law that a prisoner has no constitutionally protected liberty

interest in being released from confinement prior to the expiration of his sentenced maximum term

. . . the [Board] makes each decision on a case by case basis, and prisoners have no guarantees that

parole will ever be granted"), appeal denied, 637 A.2d 295 (Pa. 1993). This long-established

interpretation of Pennsylvania law is why federal courts have consistently found that Pennsylvania

law does not create a liberty interest in parole for purposes of Due Process analysis. U.S. ex rel.

Schiano v. Luther, 954 F.2d 910 (3d Cir. 1992); McFadden v. Lehman, 968 F. Supp. 1001, 1004

(M.D. Pa. 1997) (Pennsylvania has not created an enforceable liberty interest in parole, rehabilitative

pre-release programs, or in therapy programs); Rodgers v. Parole Agent SCI-Frackville, Wech, 916

F. Supp. 474, 476 (E.D. Pa. 1996); McCrery v. Mark, 823 F. Supp. 288 (E.D. Pa. 1993). Thus,

Petitioner's due process claim necessarily fails since Pennsylvania law does not entitle to him to

release on parole as a matter of right as he asserts.

D. Certificate of Appealability

Section 102 of AEDPA, 28 U.S.C. § 2253(c), codifies standards governing the issuance of

a certificate of appealability for appellate review of a district court's disposition of a habeas petition.

It provides that "[a] certificate of appealability may issue ... only if the applicant has made a

substantial showing of the denial of a constitutional right." In the case at bar, Petitioner has not

made any showing that he has been denied any of his constitutional rights. Accordingly, a certificate

of appealability should be denied.

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III. CONCLUSION

It is respectfully recommended that this petition be dismissed and a certificate of

appealability be denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date of

service to file objections to this report and recommendation. Any party opposing the objections shall

have seven (7) days from the date of service of objections to respond thereto. Failure to file timely

objections may constitute a waiver of any appellate rights.

 /s/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: November 30, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge

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