Opinion
Civil Action No. 05-CV-2413.
November 22, 2005
REPORT AND RECOMMENDATION
Pro se petitioner Troy Holmes has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 seeking release from the State Correctional Institution at Graterford, Pennsylvania. Holmes claims the Pennsylvania Board of Probation and Parole ("Board") violated his constitutional rights by refusing to release him on parole following the dismissal of criminal charges that were the basis for his parole violation. For the following reasons, I recommend Holmes' petition be denied with prejudice. Holmes is now released on parole and his petition is moot. In the alternative, he failed to exhaust his state remedies.
FACTUAL AND PROCEDURAL HISTORY
The procedural history has been compiled based on exhibits in the Commonwealth's appendix. Holmes' petition contains no conflicting information.
Following a guilty plea to various drug charges, Holmes was sentenced to an aggregate term of 5½ to 20 years imprisonment with an effective date of May 13, 1988. He did not seek further review of his judgment of sentence.
Holmes was released on parole on December 13, 2001. On August 4, 2005, while still on parole, Holmes was arrested by the Philadelphia police and charged with the purchase and possession of a controlled substance. As a result, on August 5, 2004, the Board issued a warrant to commit and detain Holmes for violation of his parole (commission of a crime while on parole). At the time set for a detention hearing on the parole violation, Holmes waived the hearing, and the Board continued to detain him pending the disposition of the Philadelphia charges. On January 27, 2005, the Philadelphia charges were dismissed. On February 4, 2005, the Board cancelled the August 2004 warrant to detain and commit, and simultaneously replaced it with a new detainer (for involvement with drugs).
On February 14, 2005, a Board hearing examiner held a preliminary hearing and found probable cause to believe Holmes had committed technical violations: unlawful possession or use of drugs and having contact with persons who sell or use drugs outside a treatment setting. After a hearing on April 18, 2005, a Board panel recommitted Holmes as a parole violator for using drugs.
On May 23, 2005, Holmes filed this habeas petition claiming his detention was in violation of his federal constitutional rights. At the same time, Holmes continued to challenge his violation through the administrative process. On June 29, 2005, the Board found Holmes violated his parole by using drugs, recommitted him to serve ten months backtime, and set his maximum sentence date as May 13, 2008. The Board's written decision also advised Holmes that to appeal this decision he was required to file a request for administrative relief with the Board within thirty days of the order. He was further advised of his right to counsel in the Board appeal and in any subsequent appeal to the Commonwealth Court. There is no indication that Holmes sought further review of the Board's determination.
On October 14, 2005, the Board conducted another review of Holmes eligibility for parole and determined he should be reparoled "to an approved plan upon condition that there are no misconducts" and subject to special conditions, including his participation in out-patient drug/alcohol treatment. A November 21, 2005 check of the Pennsylvania Department of Corrections's prison locator web site indicates Holmes is no longer incarcerated.
DISCUSSION
Holmes' parole has rendered this petition is moot because he has obtained the relief he requested. However, if this petition remained ripe for consideration, Holmes would not be entitled to federal habeas relief because he failed to exhaust his state remedies.
Absent exceptional circumstances a habeas petition is not cognizable until the petitioner has exhausted all means of available relief under state law. 28 U.S.C. § 2254(b);O'Sullivan v. Boerkel, 526 U.S. 838, 839 (1999); Picard v. Connor, 404 U.S. 270, 275 (1971); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). A petitioner "shall not be deemed to have exhausted the remedies available . . . 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. The policy of this total exhaustion doctrine is rooted in the tradition of comity: the state must be given the "initial opportunity to pass upon and correct alleged violations of the petitioner's constitutional rights." O'Sullivan, 526 U.S. at 844-45;Picard, 404 U.S. at 275; Slutzker, 393 F.3d at 379. Exhaustion does not require that the highest state court rule on the merits of the petitioner's claims, but merely that the court be given the opportunity to review them. Bond v. Fulcomer, 864 F.2d 306, 309 (3d Cir. 1989). Thus, a petitioner must fairly present every claim included in a federal habeas petition to the highest level of the state courts. O'Sullivan, 526 U.S. at 846-47; Slutzker, 393 F.3d at 379 (citing Doctor v. Walters, 96 F.2d 675, 681 (3d Cir. 1996)); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citing Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993)).
As discussed above, Holmes failed to seek review of the Board's decision to recommit by filing an appeal in the Pennsylvania Commonwealth Court and the time for filing is past. See 37 Pa.C.S. § 73.1; 42 Pa.C.S. § 763(a); Bronson v. Board of Probation and Parole, 421 A.2d 1021, 1024-1025 (1980). Had the Commonwealth Court affirmed the Board's decision, Holmes could have filed a petition for allowance of appeal to the Pennsylvania Supreme Court. See 42 Pa.C.S. § 725(a). Holmes could also have filed a petition for a writ of mandamus in the Commonwealth Court. See Edwards v. Board of Probation and Parole, 751 A.2d 717, 718 (Pa. Cmnwlth. 2000); Bronson, 421 A.2d at 1023 (1980) (writ of mandamus is available to compel the Board to conduct a hearing or correct a mistake in applying the law). Moreover, likely futility on the merits does not render a habeas claim exhausted. Parker v. Kelchner, 2005 U.S. LEXIS 24033, *7-*15 (3d Cir. Nov. 8, 2005). Thus, Holmes has failed to exhaust his state remedies and no avenue of review remains available.
Holmes may obtain federal habeas review of procedurally defaulted claims if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law or demonstrate that failure to consider the claim would result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991). Having failed to challenge the Board's decision by appealing to the Commonwealth Court and the Pennsylvania Supreme Court, Holmes must establish "cause" for his noncompliance with the state rule and "actual prejudice" resulting from the alleged constitutional violation. Smith v. Murray, 477 U.S. 527, 533 (1986); see also Murray v. Carrier, 477 U.S. 478, 485 (1986). This requirement, like the exhaustion doctrine, is grounded in the need for finality and comity, i.e., ensuring that state courts have an adequate opportunity to review a case on the merits. Smith v. Murray, 477 U.S. at 533.
Holmes has provided no explanation for his failure to follow the appropriate state appellate procedure, and therefore, cannot demonstrate cause for his procedural default. Since he cannot establish cause for his failure to file a state appeal, I recommend that his claim be denied with prejudice.
Having determined that Holmes's petition is moot, and alternatively, procedurally defaulted and not subject to federal habeas corpus review, I make the following:
RECOMMENDATION
AND NOW, this day of November, 2005, IT IS RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be DENIED with prejudice. IT IS FURTHER RECOMMENDED that there is no probable cause to issue a certificate of appealability.