Magistrate Joseph G. Quinn, to whom this matter had been referred, has submitted a report recommending that the petition be denied. Specifically, Magistrate Quinn suggests that the claim challenging the probable cause finding be dismissed as successive because the identical claim had been raised by petitioner and decided against him in the United States District Court for the Eastern District of Pennsylvania. He recommends that relief be denied on the claim contesting the use of the conviction to deny credit for time spent on parole because the Commission action is authorized by 18 U.S.C. § 4210(b)(2). Petitioner has filed exceptions to the Magistrate's report.
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.
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revocation hearing on April 10, 1978 and, by Notice of Action dated April 24, 1978, was informed that his parole had been revoked, that the time he had spent on parole towards service of his sentence had been forfeited, and that his incarceration would continue to expiration of his parole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.
THE SUCCESSIVE PETITION ISSUE
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)
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)
(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,
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 have jurisdiction over petitioner's custodian. See Billiteri v. United States Parole Board, 541 F.2d 938, 948 (2d Cir. 1976).
In view of the uncertainty as to the ground upon which Judge Broderick dismissed the Eastern District action and the apparent lack of jurisdiction to consider the merits of the claim raised there, the rule against successive petitions will not be invoked. Cf. United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973). Accordingly, this matter will be disposed of on its merits.
RELIANCE UPON CONVICTIONS UNDER APPEAL
Petitioner asserts that the Commission does not have the statutory authority to rely upon his state court conviction until that conviction has become "final" under Pennsylvania law, which, he contends, does not occur until after his appeals have been exhausted.
Consideration of the applicable sections of the Parole Commission and Reorganization Act (PCRA), 18 U.S.C. § 4201, et seq., its legislative history, and analogous case law, however, compels a contrary conclusion.
The statutory authority upon which the Commission relied to use petitioner's conviction to find probable cause for a parole violation and to forfeit time spent on parole is found in sections 4214(b)(1) and 4210(b)(2), respectively. Under section 4214(b)(1) a conviction for a federal, state or local crime dispenses with the requirement that a preliminary hearing be held to determine whether there exists probable cause to believe that the parolee has violated a condition of his parole.
Section 4210(b)(2) provides one of the limited bases upon which the Commission may forfeit the time the parolee has spent on parole.
Neither section defines "conviction" and the term is not defined in any other section of the PCRA. The legislative history, however, does indicate that the term is being used in its ordinary sense: the rendering of a verdict or the entry of a guilty plea.
For example, the Senate Report notes that "a preliminary probable cause hearing is unnecessary because this determination has been satisfied by the judicial proceedings leading to the new conviction." S.Rep.No.369, 94th Cong., 2d Sess. 26-27, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 335, 348. In short, an adjudication of guilt after a full-blown trial at which the parolee was accorded the necessary evidentiary and constitutional safeguards establishes probable cause that the first condition of parole has been violated, i. e., the commission of another crime.
See 18 U.S.C. § 4209(a). To construe the term conviction to include exhaustion of judicial remedies would, in effect, vitiate the statutory provision dispensing with the preliminary hearing on the basis of a conviction. Furthermore, by the time state appellate remedies are completed the Commission may well have lost jurisdiction over the parolee. See 18 U.S.C. § 4210. Congress surely did not intend such a result.
The legislative history also indicates that conviction as used in the section authorizing forfeiture of parole time means an "adjudication of guilt or delinquency." H.Conf.Rep.No.838, 94th Cong., 2d Sess. 32, reprinted in (1976) U.S.Code Cong. & Admin.News, pp. 351, 364 (emphasis supplied). Again, to interpret conviction to include exhaustion of appellate processes would be to frustrate the clear purpose of the section, especially where, as here, the parolee is convicted by a jury shortly before the expiration date of his federal sentence.
The fact that the conviction may be reversed on appeal does not militate for a different result.
As the court in Roberson v. Connecticut, 501 F.2d 305 (2d Cir. 1974), recognized in holding that probation may be revoked on the basis of a conviction under appeal:
Of course there is a risk of unfairness to a petitioner whose freedom is taken away because of a conviction which is later reversed. But there are competing policies to consider as well. It is likely that in most cases a petitioner, again convicted of a crime, presents some danger to society even though the later conviction has not yet been reviewed.
Id. at 308 (footnote omitted). See also Argro v. United States, 505 F.2d 1374, 1376-77 (2d Cir. 1974).
I find, therefore, that "conviction" as used in sections 4210(b)(2) and 4214(b)(1) of the PCRA refers to the rendering of a verdict or the entry of a guilty plea. Accordingly, the Commission had the authority to rely upon the Chester County conviction to find probable cause for a parole violation without conducting a preliminary hearing and to order the forfeiture of time spent on parole.