Long v. PA Bd Probation , 227 F. App'x 190 ( 2007 )

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Precedential or Non-Precedential: Non-Precedential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
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NOT PRECEDENTIAL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
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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).
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