The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
This pro se petition for writ of habeas corpus was
initiated by James Albert Polston, Jr. ("Petitioner"), an inmate
presently confined at the State Correctional Institution,
Cresson, Pennsylvania. Named as Respondents are Pennsylvania
Attorney General Jerry Pappert, the Pennsylvania Board of
Probation and Parole ("Parole Board") and the Warden at
Petitioner's prior place of incarceration. Service of the
petition was previously ordered.
Polston was convicted of involuntary deviate sexual
intercourse, rape, statutory rape, incest, and related offenses
following a 1991 non-jury trial in the Bucks County Court of
Common Pleas. He was subsequently sentenced to a seven (7) to
twenty (20) year term of incarceration. His conviction was affirmed on
direct appeal. See Commonwealth v. Polston, 616 A.2d 669 (Pa.
Superior 1992). A petition for allowance of appeal to the
Pennsylvania Supreme Court was denied. See Commonwealth v.
Polston, 626 A.2d 1157 (Pa. 1993). The minimum term of his
sentence expired on January 1, 1998. Polston's maximum sentence
expires on January 1, 2011.
On February 13, 1998, the Petitioner was denied parole for the
first time. The Parole Board's written denial cited numerous
factors for its decision including the Petitioner's substance
abuse, habitual offenses, need for sex offender treatment and
failure to obtain a favorable recommendation from the Department
of Corrections ("DOC"). Polston was denied release on parole for
a second time during December, 1999. A third parole application
was denied on January 22, 2004.
Following the last parole denial, Polston filed an unsuccessful
complaint in mandamus with Pennsylvania's Commonwealth Court. A
subsequent petition for allowance of appeal was denied by the
Pennsylvania Supreme Court.
In December 1996, the Pennsylvania state legislature amended
the law governing parole (61 Pa. Stat. § 331). Under the modified
criteria, protection of the safety of the public is the paramount
condition which must be considered in determining parole
eligibility. Polston's present action contends that the Parole
Board violated the Ex Post Facto Clause by not applying the parole regulations which
were in effect at the time of his original sentencing. He adds
that the Parole Board's retroactive application of the 1996
amendments in addressing his parole application violated due
process. In addition, Polston maintains that the grounds for
denial of release cited by the Parole Board were "pretextual,
boilerplate, and without basis." Record document no. 1,
additional page 2. His contention is based on the Parole Board's
purported erroneous determination that he had not successfully
completed sex offender treatment. Petitioner concludes that he
would have been granted release under the parole policies which
were in effect at the time of his sentencing.
Respondents argue that Polston is not entitled to habeas corpus
relief because: (1) his claims are only properly asserted in a
civil rights action pursuant to 42 U.S.C. § 1983; and (2) the
most recent denial of parole did not violate the Ex Post Facto
Clause. This petition is ripe for consideration. Also pending are
Petitioner's motion to compel discovery. (Record document no. 14)
and his request to supplement his petition (Record document no.
Polston has filed a request to supplement his petition with an
additional claim that the DOC "is entering patently false
information into his inmate record." Record document no. 13, p. 1. He indicates that false information
regarding his participation in sex offender therapy which has
been made part of his institutional record caused the denial of
his parole application. Accompanying the request is a proposed
Petitioner claims that he has successfully completed sex
offender programs at both SCI-Cresson and the State Correctional
Institution, Camp Hill, Pennsylvania. Despite his completion of
those programs, Polston was allegedly denied an institutional
recommendation for parole by his Unit Management Team on August
2, 2005 on the grounds that he failed to participate in sex
offender programs. Petitioner contends that he had a contractual
agreement with the DOC which he satisfied by completing sex
offender programs, but that the DOC breached its contractual
obligation by not forwarding certain paperwork from SCI-Cresson.
Due to the absence of said paperwork, the DOC refused to
recommend him for parole.
Respondents argue that the petition to supplement should be
denied because the allegations set forth therein are only
properly considered in a civil rights action, Polston failed to
exhaust his administrative remedies, and the alleged paperwork
snafu by the DOC does not implicate a violation of Polston's
constitutional rights by the Parole Board.
The claim set forth in Polston's proposed supplement is clearly
unrelated to the issue of whether an ex post facto violation
occurred. It is noted that the original petition was filed in February, 2005, and concerns a January 22,
2004 denial of parole. Accordingly, a challenge to an unfavorable
August 2, 2005 Unit Management Team recommendation is not germane
to Polston's original petition. Consequently, the petition to
supplement will be denied without prejudice. Petitioner, if he so
chooses and upon satisfaction of the exhaustion requirement, may
reassert his proposed supplemental claim in a new, separate
action. Nonetheless, since the issue of ...