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September 14, 1979

J. Kenneth PATTON
Charles E. FENTON, Warden, U.S. Parole Commission.

The opinion of the court was delivered by: NEALON


This is a petition for a writ of habeas corpus under 28 U.S.C. § 2241. Petitioner, an inmate at the United States Penitentiary, Lewisburg, Pennsylvania, contends that the United States Parole Commission (Commission) improperly based its finding of probable cause for a parole violation and its decision to forfeit time served on parole upon a state court conviction that was then being challenged on appeal. He argues that this conviction cannot be used to find probable cause for a parole violation and denial of credit for time served on parole until after state court appeals have been exhausted.

 I have reviewed the record and the applicable law and have concluded that while the decision of the Eastern District may not justify dismissal of petitioner's probable cause claim as successive, he is nonetheless not entitled to relief on the merits of either claim. Accordingly, the petition for a writ of habeas corpus will be denied.


 The pertinent facts of this case have been set out in the Magistrate's report and will only be briefly restated here. On February 27, 1974, petitioner was sentenced in the United States District Court for the Eastern District of Pennsylvania to a prison term of five years. He was paroled from this sentence to state detaining authorities on May 14, 1975. At this time petitioner had 1099 days remaining on his federal sentence, which was to expire on May 17, 1978.

 In December 1977, petitioner was tried and convicted by a jury in the Chester County Court of Common Pleas of forgery, theft by deception, and receiving stolen property. *fn1" Petitioner appealed the verdict.

 Based on this conviction the Commission determined that there was probable cause that petitioner had violated the terms of his parole and, on February 2, 1978, issued a parole violator's warrant. The warrant was subsequently executed and petitioner was incarcerated at the Lewisburg prison. He received a parole revocation hearing on April 10, 1978 and, by Notice of Action dated April 24, 1978, was informed that his parole had been revoked, that the time he had spent on parole towards service of his sentence had been forfeited, and that his incarceration would continue to expiration of his parole violator's term, tentatively scheduled for August 1, 1980. At the time of this decision, the appeal from petitioner's conviction was still pending.

 Petitioner initially instituted an action in the Eastern District of Pennsylvania, asserting that the Commission did not have the authority to rely upon a conviction then under appeal to find probable cause for a parole violation. By order dated October 6, 1978, Judge Raymond J. Broderick adopted the report and recommendation of Magistrate Tullio Gene Lemporra and dismissed the action.


 Magistrate Quinn concluded that because the probable cause claim presented here is identical to the question raised in the Eastern District this claim should be dismissed as successive. The pertinent authority for dismissing successive habeas corpus petitions is found in 28 U.S.C. § 2244(a) *fn2" and Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C.A. foll. § 2254 (1977) *fn3" (applicable to section 2241 petitions through Rule 1(b)). An examination of the language of 28 U.S.C. § 2244(a), Rule 9(b) and the pertinent interpretive decisions indicates that there are two threshold questions that must be answered before a claim for habeas relief may be dismissed as successive. First, it must be determined that "the same ground presented in the subsequent application was determined adversely to the applicant on the prior application." Sanders v. United States, 373 U.S. 1, 15, 83 S. Ct. 1068, 1077, 10 L. Ed. 2d 148 (1963). If the same ground was raised in the prior habeas petition, it must then be determined that "the prior determination was on the merits." Id. Doubts as to these matters are to be resolved in favor of the petitioner. Id. at 16, 83 S. Ct. at 1077. Once the court has addressed the threshold requirements and has concluded that both have been met, it must determine whether the ends of justice would be served by considering the merits of the subsequent petition. Id.

 While it is clear that the probable cause issue presented in the instant petition is identical to that raised in the Eastern District, it is not evident that the decision of Judge Broderick was made on the merits. The Eastern District action was apparently instituted as a habeas corpus petition under 28 U.S.C. § 2254, *fn4" but disposed of as a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence imposed by a federal court. In a footnote in his report Magistrate Lemporra recognized the jurisdictional problems which the action as then filed created. He concluded that "the Petition for Habeas Corpus under 28 U.S.C. § 2254 should be denied and dismissed because the Motion should have been under § 2255 and assigned to (the sentencing judge.)" Respondents' Exhibit No. 2, at 6 n. 8. Magistrate Lemporra's report also considered the merits of petitioner's claim in detail and concluded that it did not afford a basis for relief. Judge Broderick adopted Magistrate Lemporra's report and recommendation and dismissed the action without comment.

 Thus, while Magistrate Lemporra appeared to recommend dismissal of the action either on the merits or for lack of jurisdiction, Judge Broderick did not specify the ground upon which he had decided to dismiss the action. The extensiveness of the discussion on the merits in Magistrate Lemporra's report would seem to indicate that the matter was disposed of on the merits. It would also appear, however, that the court did not have jurisdiction to entertain the merits of petitioner's claim.

 The federal collateral review statute, 28 U.S.C. § 2255, does not empower the sentencing court to entertain a claim of wrongful revocation of parole. See Williams v. United States, 412 F. Supp. 277, 280 (E.D.Pa.1976). In addition, since petitioner was incarcerated in Lewisburg, which is located within the Middle District of Pennsylvania, the Eastern District did not have jurisdiction to consider the merits of the action as a petition filed pursuant to section 2241 because it did not ...

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