Opinion
Civil Action No. 06-102J.
May 9, 2006
Report and Recommendation
Recommendation
Petitioner is incarcerated at S.C.I. Cresson, and filed a petition under 28 U.S.C. § 2241 in the District of Maryland which was transferred to this court. Petitioner alleges that the Pennsylvania Board of Probation and Parole's denial of parole to him violates the Ex Post Facto Clause of the constitution. He adds other claims, but because the Ex Post Facto Clause claim is pending in state court I recommend that the petition be summarily dismissed without prejudice pursuant to 28 U.S.C. § 2243 and Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, and a certificate of appealability be denied.
Report
Petitioner alleges he is serving an 5-20 year sentence for rape imposed in 1997 (by what he calls the Eastern District of Pennsylvania but which appears to be the Court of Common Pleas of Philadelphia County), that he has served ten years of that sentence and is eligible for parole, and that the Pennsylvania Board of Probation and Parole has denied him parole three times. In addition to alleging that someone (it is not clear who) violated petitioner's rights under the Vienna Convention (a claim that would not appear to be relevant to the Board's actions), petitioner claims that the Board has violated the Ex Post Facto Clause of the constitution.
Since petitioner is in custody pursuant to the judgment of a state court, he must proceed under the specifically applicable statute, 28 U.S.C. § 2254, not the general habeas statute, 28 U.S.C. § 2241. A state petitioner cannot obtain a writ of habeas corpus in federal court unless he has first exhausted his claim in the state courts by fairly presenting the substance of the federal claim to each available level of the state court, or shown that there is no available state remedy. See 28 U.S.C. § 2254 (b) (1). Petitioner alleges that he has an appeal from his parole denial pending in the Pennsylvania Commonwealth Court. Petitioner must exhaust that remedy before presenting his Ex Post Facto Clause claim in federal court. He will have one year from the last judgment in state court to file a federal habeas corpus petition.
Petitioner also adds the claim that he should be paroled because he is a national of Haiti and has been subject to a deportation order since 2003. He appears to be arguing that he can lawfully be detained in custody only long enough to secure his removal. This is not correct: petitioner is alleging that he is in prison serving a criminal sentence, and there is no rule of law that states that a foreign national must be deported before he has served his criminal sentence. This claim can be dismissed on the merits even if it has not been exhausted. 28 U.S.C. § 2254(b)(2).
The petitioner's petition should be dismissed as unexhausted. No certificate of appealability should issue. To the extent petitioner's allegations are intended to express his dissatisfaction with his conditions of confinement at S.C.I. Cresson, petitioner may file a civil rights complaint or move to amend his pending civil rights complaint at Toussaint v. Good, C.A. No. 05-443 (W.D.Pa.). Petitioner may not challenge the conditions of confinement in a habeas corpus petition: a habeas corpus action challenges the fact or duration of confinement.
Pursuant to 28 U.S.C. § 636(b)(1), the parties are given notice that they have ten days to serve and file written objections to this Report and Recommendation.