Opinion
Civil Action 20-144
08-12-2021
JUAN BILLINGSLEY, Petitioner, v. KEVIN RANSOM, Superintendent of SCI-Dallas; ACTING CHAIRMAN OF THE PENNSYLVANIA BOARD OF PROBATION AND PAROLE; and PENNSYLVANIA ATTORNEY GENERAL OFFICE Respondents.
REPORT AND RECOMMENDATION
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Supplement Record and to Dismiss filed by Respondents, ECF No. 28, be granted, and the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (the “Petition”), ECF No. 1, be dismissed. It is further recommended that a certificate of appealability be denied.
II. REPORT
Juan Billingsley (“Petitioner”) is a state prisoner proceeding pro se in this matter. In his Petition, he challenges the decision of Respondent Pennsylvania Board of Probation and Parole (the “Board”) to revoke his parole and recalculate his maximum sentence date. ECF No. 1.
A. Relevant Background
While the briefing of this matter is not entirely clear, it appears that, on July 12, 2014 Petitioner was sentenced to a total of 30 to 60 months imprisonment after pleading guilty to firearms and receiving stolen property charges in the Court of Common Pleas of Luzerne County, Pennsylvania, at criminal docket number CP-40- CR-842-2013 (available at https://ujsportal.pacourts.us/CaseSearch, last visited August 12, 2021). Petitioner was given credit for 114 days on his sentence. Id.; see alsoECF No. 1 at 2. The controlling minimum and maximum sentence dates were August 19, 2016, and February 19, 2019, respectively. ECF No. 1 at 2, 7. Petitioner was granted parole and was released from custody on August 21, 2016. Id. at 11.
On April 2, 2018, while on parole, Petitioner was arrested in the State of Indiana. Id. at 23. On or about April 5, 2018, authorities in Indiana charged Petitioner with felony firearms possession and drug crimes. Id. Petitioner alleges that he was released after posting bond on April 9, 2018, and returned to active parole. Id. at 2.
On November 28, 2018, Petitioner was declared delinquent on parole. Id. at 2-3, 13. Petitioner was arrested in Fort Wayne, Indiana on December 18, 2018, and held on the Board's warrant. Id. at 3, 13. The record provided by Petitioner indicates that a preliminary hearing regarding his release on parole was held on December 20, 2018, which included charges related to his employment and residence, failure to follow agent instructions, and his then-pending firearms and drug charges. Id. at 3, 18-19. Petitioner asserts, and the record indicates, that he was placed back on parole on January 24, 2019. Id. at 3, 21. Petitioner asserts that, even after being placed back on active parole, he was not released from custody because the Board did not rescind its warrant. Id. at 3. The record indicates that Petitioner remained held on the Board's detainer until at least February 22, 2021. Id. at 13.
Petitioner asserts that he was discharged from parole for his Pennsylvania conviction on February 29, 2019. Id. at 3, 23. The docket in the Indiana criminal case indicates that the Board rescinded its warrant on or about March 7, 2019 and Petitioner was released on his own recognizance pending his charges in Indiana on the same date. Id. at 3, 24; see also ECF No. 37-4 at 3-4.
Because 2019 was not a leap year, there was no date of February 29, 2019.
On March 1, 2019, after the maximum date of his Pennsylvania sentence, Petitioner entered into an agreement to plead guilty to the Indiana firearms possession charge, wherein the drug-related charges would be dismissed. ECF No. 1 at 25-26. Petitioner's guilty plea was accepted, and he was sentenced to three years' incarceration on the Indiana firearms charge, with two years suspended for probation, on April 2, 2019. Id. at 4, 30.
On June 14, 2019, while Petitioner was serving his sentence in Indiana, and after the maximum date for his Pennsylvania sentence, the Board issued a warrant for Petitioner's arrest. Id. at 27. Petitioner was released from custody in Indiana and extradited to Pennsylvania on September 10, 2019. Id. at 4.
Petitioner appeared before the Board with counsel for a parole revocation hearing on November 4, 2019. Id. 4, 29-30. The asserted basis for the revocation of his parole was his April 2, 2019 criminal conviction in Indiana. Id. at 29-30. In a letter mailed on January 7, 2020, the Board issued a decision recommitting Petitioner as a convicted parole violator with a new maximum sentence date of December 31, 2021. ECF No. 14 at 10-11; ECF No. 14-1 at 40.
As an exhibit to the Motion to Dismiss, Respondents submit a letter from the Board indicating that Petitioner administratively appealed the Board's decision, and that that appeal was received on February 10, 2020. ECF No. 28 at 4-6. In that letter, mailed on June 3, 2020, an appeal panel of the Board affirmed the underlying decision mailed on January 7, 2020. Id. at 6. In the margin, the letter of June 3, 2020 advises Petitioner of his appellate rights, as well as the requirement appeal to the Pennsylvania Commonwealth Court within thirty days of mailing of the appeal panel's decision. Id.
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B. 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.” Learner v. Fauver, 288 F.3d 532, 541 (3d Cir. 2002); Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001). Although Petitioner has properly invoked § 2254, his Petition is subject to dismissal based on his failure to exhaust state court remedies. Moreover, even if they were not defaulted, Petitioner's claims lack merit, and should be dismissed.
1. The Petition is procedurally defaulted
All claims that a petitioner in state custody attempts to present to a federal court for habeas corpus review must have been exhausted in the state courts. 28 U.S.C. § 2254(b)(1)(A). This provision requires that the petitioner give the state courts a fair opportunity to review his allegations of constitutional error before seeking relief in the federal court. See Baldwin v. Reese, 541 U.S. 27, 29 (2004). Pursuant to the federal habeas statute, a petitioner has not exhausted the remedies available in the courts of the state “if he has the right under the law of the State to raise, by any available procedure, the question presented.” 28 U.S.C. § 2254(c). The United States Supreme Court has held that this requires that state prisoners “give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). The burden of proving exhaustion of all available state remedies lies with the petitioner. Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997).
When considering exhaustion in the context of a parole violator in Pennsylvania, as is the case here, a petitioner must first challenge the Board's decision to recommit him as a parole violator by filing an administrative appeal to the Board itself within thirty days of the mailing date of the Board's order. 61 Pa. C.S.A. § 6113(d); 37 Pa. Code § 73.1(a). Thereafter, the petitioner must follow that administrative appeal with an appeal to the Pennsylvania Commonwealth Court. See 42 Pa. C.S.A. § 763(a); see also Bronson v. Com. Bd. of Probation and Parole, 421 A.2d 1021, 1025-26 (Pa. 1980) (concluding that the Commonwealth Court had jurisdiction over the appeal from a parole revocation decision made by the Board).
If a petitioner is unsuccessful at the Commonwealth Court, he then must seek allowance of appeal with the Pennsylvania Supreme Court. 42 Pa. C.S.A. § 724; see also McMahon v. Pennsylvania Bd. of Probation and Parole, 470 A.2d 1337 (Pa. 1983). A petitioner's claims are not deemed exhausted unless and until he seeks review from the Pennsylvania Supreme Court. Williams v. Wynder, 232 Fed.Appx. 177, 181 (3d Cir. 2007) (holding that the petitioner was required to exhaust his available state remedies by filing a petition for allowance of appeal in the Pennsylvania Supreme Court following the Commonwealth Court's adverse decision).
In this case, Petitioner has not alleged that he satisfied the exhaustion requirements either in the Petition or in the Traverse. While the pending Motion to Dismiss includes a letter showing that he pursued administrative relief, Petitioner does not indicate in his Traverse that he ever appealed the Board's adverse decision to the Commonwealth Court or the Pennsylvania Supreme Court. Furthermore, a search for Petitioner's name on the electronic dockets of the Pennsylvania Commonwealth Court and Pennsylvania Supreme Court does not return any results. See https://ujsportal.pacourts.us/CaseSearch. This Court takes judicial notice of those dockets, which demonstrate that Petitioner did not file any appeals in those courts challenging the Board's decision.
As such, Petitioner has not exhausted his state court remedies as to any federal constitutional claim upon which he seeks relief in this habeas action, and it would be futile for him to attempt to do so now because the time to do so has long since expired. Consequently, the claims raised in the Petition are procedurally defaulted for purposes of federal habeas review, see O'Sullivan, 526 U.S. at 848 (A petitioner who fails to properly present federal claims to a state court in a timely fashion under state law rules procedurally defaults those claims), and cannot be reviewed unless Petitioner can demonstrate “cause for the default and actual prejudice as a result of the alleged violation of federal law” or “that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750 (1991). As Petitioner has not demonstrated the sort of cause or prejudice necessary to forgive this procedural default, nor demonstrated a fundamental miscarriage of justice, the Petition should be dismissed for his failure to exhaust state court remedies.
2. Petitioner's claims lack merit
Petitioner asserts that on January 24, 2019, he was placed on active parole for all previous parole violations, and that he was discharged from parole after his maximum date of February 29, 2019. ECF No. 1 at 4-5. His position is that, because of this discharge, any subsequent action by Respondents to recalculate his sentence is unlawful. Id. at 4-5; ECF No. 37 at 2. This is not so.
Under Pennsylvania law, parolees who violate their parole by being convicted of a crime which was committed by the parolee while on parole are considered a “convicted parole violator.” Any time spent at liberty on parole prior to the second conviction is added back to the parolee's original sentence, and the parolee may be required to serve that amount of time in prison as “backtime.” Strait v. Pennsylvania Bd. of Prob. & Parole, No. 580 C.D.2015, 2015 WL 6468544, at *4 (Pa. Cmwlth. Ct. Oct. 27, 2015) (“[consequently when a parolee is recommitted due to criminal conviction, his maximum sentence date may be extended to account for all street-time, regardless of good or delinquent standing.”). See also McCreary v. Doe, No. CV 15-1634, 2016 WL 1506204, at *1 (W.D. Pa. Mar. 4, 2016), report and recommendation adopted, No. 2:15CV1634, 2016 WL 1530008 (W.D. Pa. Apr. 14, 2016). See also Galloway v. Pennsylvania Prob. & Parole Bd., No. CV 20-361, 2020 WL 8817618, at *4-5 (W.D. Pa. Sept. 16, 2020) (internal citations omitted).
It is undisputed that Petitioner committed the firearms offense of which he was convicted in Indiana on or about April 2, 2019, ECF No. 1 at 23, 25-26, and that that date occurred while Petitioner was on parole. The fact that Petitioner's date of conviction post-dates his parole is irrelevant under the applicable Pennsylvania statute. In addition, the version of Section 6138 of the Pennsylvania Prisons and Parole Code in effect at the time of Petitioner's administrative appeal specifically authorizes the Parole Board to recalculate the maximum sentence date for convicted parole violations:
(1) A parolee under the jurisdiction of the board released from a correctional facility who, during the period of parole or while delinquent on parole, commits a crime punishable by imprisonment, for which the parolee is convicted or found guilty by a judge or jury or to which the parolee pleads guilty or nolo contendere at any time thereafter in a court of record, may at the discretion of the board be recommitted as a parole violator.See 61 Pa. C.S.A. § 6138(a)(1) (2020) (emphasis added). See also Watts v. Mooney, No. CV 16188, 2016 WL 3041863, at *6 (E.D. Pa. May 26, 2016) (same). For decades, this statute has been recognized as raising no federal constitutional issue. United States ex rel. Heacock v. Myers, 367 F.2d 583 (3d Cir. 1966) (expressing “complete accord” and affirming opinion of district court in United States ex rel. Heacock v. Myers, 251 F.Supp. 773, 774 (E.D. Pa. 1966) (“[n]o [federal] constitutional question is involved in the Parole Board's failure to give relator credit for time on parole and its adjustment of the expiration date of his new maximum.”). See also Rivera v. Pennsylvania Bd. of Prob. & Parole, No. 1:12-CV-1169, 2013 WL 5947728, at *6 (M.D. Pa. Nov. 5, 2013) (citing cases recognizing the constitutionality of Pennsylvania's parole statute). Petitioner has failed to demonstrate that his state custody due to the revocation of his parole and recalculation of his sentence rises to the level of a “violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254. Accordingly, this provides a separate basis to grant Respondents' Motion to Dismiss. ECF No. 28.
3. Certificate of appealability
A certificate of appealability should be denied because jurists of reason would not find it debatable whether Petitioner's claims are procedurally defaulted and meritless. See, e.g., Slack v. McDaniel, 529 U.S. 473 (2000).
III. CONCLUSION
For the reasons set forth herein, it is respectfully recommended that the Motion to Supplement Record and to Dismiss filed by Respondents, ECF No. 28, be granted, and the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, ECF No. 1, be dismissed. It is further recommended that a Certificate of Appealability be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.