Opinion
Civil Action No. 04-2716.
October 12, 2004
REPORT AND RECOMMENDATION
This is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by James Girard Husovsky ("Husovsky"). Husovsky was housed at the Dallas State Correctional Institute at the time this petition was filed. For the reasons that follow, I recommend that the petition be dismissed.
FACTS AND PROCEDURAL HISTORY :
The facts and procedural history of this case are derived from Husovsky's habeas petition and his supporting memorandum of law.
On May 19, 1980, Husovsky was convicted by a jury in the Court of Common Pleas of Northampton County of third degree murder and sentenced to a term of ten (10) to twenty (20) years of imprisonment. See Pet. at 5. The Pennsylvania Board of Probation and Parole ("Board") granted him parole with a number of conditions effective on or about August 1, 1990. See Pet'r Mem. of Law, at 2.
On April 26, 1996, pursuant to a negotiated plea agreement, Husovsky pleaded guilty in the Court of Common Pleas of Northampton County to the offenses of driving under the influence of marijuana and disorderly conduct. The trial court immediately imposed a sentence of 48 hours to 46 days of imprisonment for the driving under the influence offense, and imposed a fine of $25.00 on the offense of disorderly conduct. At the time of sentencing, Husovsky had already served the maximum sentence of 46 days.
On August 30, 2001, Husovsky filed a petition for writ of habeas corpus claiming that his 1996 guilty plea was not entered in a voluntarily and intelligent manner. Husovsky v. Lavan, C.A. No. 01-4605 (E.D. Pa.). On August 16, 2002, the Honorable Louis H. Pollack, United States District Court Judge for the Eastern District of Pennsylvania, adopted my Report and Recommendation dismissing Husovsky's petition for lack of jurisdiction.
At the time of his guilty plea, Husovsky was on parole for his murder conviction. After it was determined that he was in violation of his parole, Husovsky's sentence was recalculated to include his backtime and an additional ten (10) months of imprisonment imposed for his parole violation. Consequently, Husovsky contends that his maximum sentence was extended from January 24, 2000, to October 21, 2005. See Pet'r Mem. of Law, at 2.
Backtime is the remaining part of a pre-existing judicially imposed sentence which the Board directs a parolee to complete following a finding that the parolee violated the terms and conditions of parole. Krantz v. Commonwealth of Pennsylvania, Board of Probation and Parole, 483 A.2d 1044, 1047 (Pa.Commw. Ct. 1984). If a person commits a crime while on parole, and is recommitted as a convicted parole violator, he is not entitled to any sentence credit for the time spent at liberty on parole.See 61 P.S. § 331.21a(a).
On April 22, 1997, Husovsky was re-paroled. See Pet'r Mem. of Law, at 3. On October 4, 1999, the Board recommitted Husovsky to an additional six (6) months of backtime as a technical parole violator. Id. On February 16, 2000, March 7, 2001, May 5, 2002, and April 12, 2004, the Board refused to re-parole Husovsky.Id. at 3-5.
On June 18, 2004, Husovsky filed the instant pro se petition for writ of federal habeas corpus. Husovsky claims that the Board denied him parole based on a retroactive application of the 1996 amendments to the Parole Act and guidelines in violation of the Ex Post Facto Clause. See Pet'r Mem. of Law, at 5-14.
Husovsky alleges that he presented this claim to the Pennsylvania Commonwealth Court and the Pennsylvania Supreme Court. See Pet., at 6. His appeals were denied on October 17, 2003, and May 18, 2004, respectively. Id.
On August 13, 2004, Respondents filed an answer to Husovsky's federal habeas petition requesting that the petition be dismissed or, in the alternative, that the proceedings be stayed. On August 23, 2004, this court granted Respondents' motion to stay proceedings pending the outcome of Husovsky's parole review in September 2004.
Respondents based their request for a stay upon the fact that Husovsky's file was unavailable for review because it was being utilized by the Board in preparation of Husovsky's September 2004 parole review. Respondents also pointed out that if the Board granted parole to Husovsky at his September 2004 parole review, then the instant petition would be rendered moot.
On September 30, 2004, Respondents filed a motion requesting that the instant petition be dismissed as moot because Husovsky was paroled on September 29, 2004.
DISCUSSION :
The major function of the writ of habeas corpus has always been to obtain release from illegal custody. Preiser v. Rodriguez, 411 U.S. 475, 484-486 (1973). In the instant petition, Husovsky sought release on parole or, in the alternative, a parole review under the pre-1996 Parole Act and guidelines. See Pet'r Mem. of Law, at 11, 14. As previously noted, subsequent to the filing of the instant petition, Husovsky was granted parole. When a habeas petitioner has been released after filing a petition, the relevant inquiry becomes whether the case still presents a case or controversy under Article III, § 2 of the United States Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998). "This means that, throughout the litigation, the [petitioner] `must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Id. (citingLewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). We find that this petition no longer presents a case or controversy because Husovsky only requested his release on parole and/or a parole hearing under the pre-1996 Parole Act and guidelines. See Pet'r Mem. of Law, at 5-14. Even if unlawful, Husovsky's previous parole hearings impose no collateral consequences on him today in light of the fact that he has been released on parole. As a result, I find that Husovsky's claim is moot. Spencer, 523 U.S. at 7-8. Consequently, the instant petition must be dismissed.
Therefore, I make the following:
RECOMMENDATION
AND NOW, this day of October, 2004, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ a habeas corpus deemed filed pursuant to 28 U.S.C. § 2254 be DISMISSED. There has been no substantial showing of the denial of a constitutional right requiring the issuance of a certificate of appealability.
ORDER
AND NOW, this ____ day of __, upon careful and independent consideration of the petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, and after review of the Report and Recommendation of United States Magistrate Judge Peter B. Scuderi, IT IS ORDERED that:
1. The Report and Recommendation is APPROVED and ADOPTED.
2. The petition for a writ for habeas corpus filed pursuant to 28 U.S.C. § 2254 is DISMISSED.
3. There is no basis for the issuance of a certificate of appealability.