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Burkett v. Love

July 12, 1996







(D.C. No. 88-cv-01397) Argued April 30, 1996

Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges

WEIS, Circuit Judge.

Filed July 12, l996


In this case, a state prisoner alleges that he was denied parole in retaliation for the successful pursuit of relief in various federal habeas corpus proceedings. The district court denied the petition on the merits and also found a failure to exhaust "administrative" remedies. *fn1 Because we conclude that petitioner has failed to exhaust state remedies, and in addition, that some uncertainty exists as to the proper state procedure to address the issue that the prisoner raises, we remand with directions to dismiss.

Between February 1981 and April 1982, the district attorney of Blair County, Pennsylvania, filed three sets of charges against petitioner Wayne Burkett. In November 1981, he was convicted of burglary, theft, receiving stolen property, and corruption of minors, docketed in 1981 at Nos. 140/141. On January 20, 1982, Burkett was convicted of rape, involuntary deviate sexual intercourse, terroristic threats, unlawful restraint, indecent exposure, reckless endangerment, indecent assault, and aggravated assault, docketed in 1981 at No. 161. A third conviction, entered on January 28, 1983 for attempted rape, terroristic threats, assault, and reckless endangerment was docketed in 1982 at No. 284.

In an earlier proceeding, we granted habeas corpus relief resulting in the vacation of the convictions at Nos. 140/141 and 161 because of inordinate delays in sentencing. See Burkett v. Cunningham, 826 F.2d 1208 (3d Cir. 1987). In Burkett v. Fulcomer, 951 F.2d 1431 (3d Cir. 1991), we held that the sentence imposed at No. 284 should be reduced because of delay.

After another round of orders from the district court and this Court, the state judge denied Burkett's motion for recusal and reduced the sentence in accordance with our earlier order. Petitioner is presently serving a term of 12-3/4 to 28-3/4 years. In February 1993, Burkett filed a Post Conviction Relief Act petition in Blair County challenging the sentence as excessive.

In September 1994, the Pennsylvania Parole Board denied petitioner's request for parole, citing, among other reasons, "very high assaultive behavior potential" and "unfavorable recommendation from district attorney and sentencing judge." The Board rejected petitioner's request for reconsideration, stating: "Be advised that what the Board decides and why, with regard to parole/reparole, is wholly within the Board's discretion and not subject to judicial review. Reider v. Pennsylvania Board of Probation and Parole, 514 A.2d 967 (1986) (en banc)." On September 28, 1994, Burkett filed a pro se habeas corpus petition in the Pennsylvania courts raising, among other claims, retaliatory denial of parole. The state court dismissed the petition without prejudice and appointed new counsel with instructions to file an amended petition.

In June 1995, Burkett initiated the present matter by filing a document in the district court entitled "Motion to Enforce Order of the District Court Dated December 4, 1992 and to Permit Discovery in Support of Burkett's Motion." (The December 4, 1992 order had directed the imposition of a reduced sentence, as discussed in our opinion at 951 F.2d 1433.) In this "motion," Burkett alleged that the Commonwealth of Pennsylvania had denied him parole in vindictive retaliation for his success in the earlier federal habeas corpus actions he had pressed in the district court and our Court.

The district court denied the motion, finding inter alia that the decision to grant parole was committed to the sound discretion of the Parole Board and that the agency had cited at least five legitimate and non-discriminatory reasons for its action. Further, the court stated that the responses of the district attorney and the sentencing judge were proper and non-vindictive. In addition, the court concluded that Burkett had failed to exhaust his administrative remedies.

Burkett has appealed, contending that no corrective state process exists and therefore the district court should have conducted an evidentiary hearing and allowed discovery.

I. Appellate Jurisdiction

Burkett's motion in the district court was filed under the docket number of an earlier case. It should have been filed under a separate docket number rather than as a continuation of the previous action. However, because the district court and the parties have treated this case as a new petition for a writ of habeas corpus, we will do likewise. The district court's order ...

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