Opinion
Civil No. 3:CV-05-0892.
May 19, 2005
MEMORANDUM
Petitioner, Kyle A. Williams ("Williams"), filed this pro se petition on May 2, 2005, under 28 U.S.C. § 2254, challenging the revocation of his parole by the Pennsylvania Board of Probation and Parole ("the Board"). (Doc. 1). Williams alleges that he has suffered violations of his constitutional rights due to the Board's failure to provide him with adequate notice of his parole revocation, and that the Board's failure to give him credit for time spent in custody has caused him to be incarcerated beyond his maximum sentence.
Habeas corpus petitions brought under § 2254 are subject to preliminary consideration which allows for summary dismissal under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. § 2254 (1977) (Amended 2004). Rule 4 provides that "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." The petition has been given preliminary consideration, and, for the reasons set forth below, the petition will be dismissed for failure to exhaust state court remedies.
I. Background.
On October 7, 2002, Williams was released to a community corrections center from the State Correctional Institution at Dallas following service of an unspecified sentence. He successfully completed the program at the community corrections center and was released to an approved home plan on February 3, 2003. While on parole, Williams was arrested and thereafter convicted of simple assault. He states that despite receiving notice of a parole revocation hearing, no hearing was held. Rather, he received a "green sheet" informing him that his parole was revoked and he was ordered to serve twelve months back time and was not given credit for time spent at the community corrections center. (Doc. 3, p. 2, ¶ 11).
Williams sought administrative review of the revocation decision via an administrative appeal. (Doc. 3, p. 2, ¶ 12). On May 26, 2004, the appeal requesting administrative relief was denied. ( Id.). He then filed a Petition for Review with the Pennsylvania Commonwealth Court on or about June 16, 2004. ( Id. at ¶ 13). The Commonwealth Court affirmed the revocation of parole on January 3, 2005. ( Id. at p. 4, ¶ 26). No further action was taken in state court.
Williams then filed the present petition.
II. Discussion.
A petition pursuant to 28 U.S.C. § 2254 is the proper statutory section to invoke when challenging a parole decision. However, claims are limited to those instances when the petitioner "challenge[s] the very fact or duration of the confinement itself." Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002); See Coady v. Vaughn, 251 F.3d 480 (3d Cir. 2001). Although Williams has properly invoked § 2254, his petition is subject to dismissal based on the failure to exhaust state court remedies.
All claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been fairly presented to each level of the state courts. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999) ("[W]e ask not only whether a prisoner has exhausted his state remedies, but also whether he has properly exhausted those remedies, i.e., whether he has fairly presented his claims to the state courts."(emphasis in original)). The burden of establishing that such claims were fairly presented falls upon the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). Federal courts will dismiss, without prejudice, claims that have not been properly presented to the state courts, allowing petitioners to exhaust claims. Petitioners who have not fairly presented their claims to the highest state court have failed to exhaust those claims. O'Sullivan, 526 U.S. at 842-45. If, however, state procedural rules bar a petitioner from seeking further relief in state courts, "the exhaustion requirement is satisfied because there is `an absence of available State corrective process.' 28 U.S.C. § 2254(b)." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999). Even so, this does not mean that a federal court may, without more, proceed to the merits. Rather, claims deemed exhausted because of a state procedural bar are procedurally defaulted, and federal courts may not consider their merits unless the petitioner can establish "cause" or a "fundamental miscarriage of justice" to excuse the default. Id.; see also, Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
When considering exhaustion in the context of a parole violator, as is the case here, petitioner must first challenge the Board's decision by filing an administrative appeal. See 37 Pa. Code § 73.1(b)(1). The administrative appeal must be followed by an appeal to the Pennsylvania Commonwealth Court, and then, if dissatisfied with the result, a petition to the Pennsylvania Supreme Court for allowance of appeal. See McMahon v. Pennsylvania Board of Probation Parole, 504 Pa. 240, 470 A.2d 1337 (1983); Evans v. Pennsylvania Dep't of Corr., 713 A.2d 741 (Pa.Commw. 1998); St. Clair v. Pennsylvania Board of Probation Parole, 493 A.2d 146 (Pa.Commw. 1985).
It is clear that Williams has not exhausted his claims in that he failed to file a petition for allowance of appeal in the Pennsylvania Supreme Court. Further, there is no indication that such a petition would not be accepted by the Pennsylvania Supreme Court. Consequently, the petition for writ of habeas corpus will be dismissed for failure to exhaust state court remedies.
An appropriate order will issue.
ORDER
AND NOW, to wit, this 19 th day of May 2005, upon consideration of the petition for writ of habeas corpus (Doc. 1), and memorandum of law in support of habeas corpus (Doc. 3), and for the reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1. The motion to proceed in forma pauperis (Doc. 2) is GRANTED;
2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice for failure to exhaust state remedies state court remedies;
3. There is no basis for the issuance of a certificate of appealabilty;
4. The Clerk of Court is directed to CLOSE this case.