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POLSTON v. PAPPERT

November 22, 2005.

JAMES ALBERT POLSTON, JR., Petitioner,
v.
ATTORNEY GENERAL JERRY PAPPERT, ET AL., Respondents.



The opinion of the court was delivered by: JAMES McCLURE JR., District Judge

MEMORANDUM AND ORDER

Background

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. 13).

  Discussion

  Motion to Supplement

  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 supplement.

  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 ...


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