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2254 exhaustion requirement not excused when claim likely futile in state courts

In Parker v. Kelchner, the Third Circuit ruled that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is not excused merely because petitioner’s claim would likely be futile on the merits in state court. Petitioner filed for habeas relief in the district court, stating that the PA Parole Board applied the 1996 version of the Parole Act in denying him parole. He argued that such application violated the Ex Post Facto Clause because he committed his offense before the enactment of the 1996 version of the Parole Act. The district court agreed, granting his petition.

The state appealed, claiming that the district court erred in hearing Parker’s claim due to failure to exhaust: he never pursued it in state court. Parker claims that pursuing the claim in state court would have been futile, because the state supreme court had already rejected this claim on numerous occasions. The district court agreed.

The Third Circuit has previously held that the 28 U.S.C. § 2254(b)(1)(A) exhaustion requirement is satisfied where a state’s procedural rules preclude a petitioner from raising the claim in state court. The Court, here, found that futility is different and does not relieve a petitioner from the exhaustion requirement. The Court cited Engle v. Isaac, 456 U.S. 107 (1982) in support of this proposition. In Engle, the Supreme Court found that a petitioner’s failure to object at trial cannot be excused as futile, simply because the objection was unacceptable to that court at that time.

Despite a concurring opinion in the Third Circuit and some Supreme Court caselaw that lends support to Parker’s futility argument, the Court agreed with numerous sister circuits and rejected it. The Third Circuit also viewed the PA Supreme Court’s repeated willingness to hear the issue as an indication that Parker’s claim may not have been futile in state court.

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