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Alston v. Pennsylvania Board of Probation and Parole

February 1, 2006

VERNAL ALSTON, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, ET AL., RESPONDENTS



The opinion of the court was delivered by: Christopher C. Conner United States District Judge

MEMORANDUM

Presently before the court is a petition for writ of habeas corpus (Doc. 1) pursuant to 28 U.S.C. § 2254. For the reasons that follow, the petition will be denied.

I. Statement of Facts

In 1985, following convictions for robbery, petitioner Vernal Alston ("Alston"), was sentenced by a Pennsylvania state court to a period of incarceration of ten to twenty-two years, with a minimum expiration date of September 14, 1994, and a maximum expiration date of September 14, 2006. (Doc. 23-2, p. 2). He was paroled from the sentence on September 14, 1994. (Id. at p. 6).

In September 1997, while on parole, Alston was charged in federal court with distributing crack cocaine. (Doc. 23-2, p. 9). On October 30, 1997, following a plea of guilty to the federal charges, he was released on a personal recognizance bond pending sentencing on the federal charges. (Id.) However, he was immediately arrested and taken into custody pursuant to a Pennsylvania Board of Probation and Parole ("Board") warrant to commit and detain him based upon technical parole violations and new federal criminal charges. (Doc. 23-2, p. 12). Within days, the Board held a parole revocation hearing, and in February 1998, Alston was notified that he was recommitted to a state correctional institution to serve three months as a technical parole violator and nine months as a convicted parole violator. (Doc. 23-3, p. 9). He was also informed that he had thirty days to appeal the Board's decision.

Inexplicably, Alston did not file an appeal challenging the Board's decision to revoke his parole and the detainer until June 2001.*fn1 (Docs. 23-3, p. 9, 23-4, p. 9). The appeal was dismissed as untimely. (Doc. 23-4, p. 9). In July 2003, Alston submitted a second administrative appeal, which was also summarily dismissed as untimely. (Doc. 23-4, p. 16).

In August 2003, he filed a petition for review in the Commonwealth Court of Pennsylvania seeking to challenge, in the Commonwealth Court's original jurisdiction, an order he failed to timely appeal. Because original jurisdiction may not be used to revive lapsed appeal rights, the petition was dismissed . (Doc. 23-5, p. 18). Alston then filed a petition for allowance of appeal in the Pennsylvania Supreme Court on September 19, 2003. (Doc. 23-5, p. 20). The petition was denied on August 30, 2004. (Doc. 23-5, p. 36).

The Board issued a decision on August 15, 2005, reaffirming the earlier decision to commit Alston as a technical and convicted parole violator and setting forth his maximum release date as July 23, 2015. (Doc. 41-2, p. 13). Alston was notified of his right to appeal the decision. No appeal was filed.

The instant petition and supporting memorandum of law were filed on October 8, 2004. (Docs. 1, 2). Alston is "challenging constitutional rights violations and the legality of continued state custody." (Doc. 2, p. 5). He seeks an order directing the Board to withdraw its detainer and to recalculate his maximum release date.

II. Discussion

A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the "fact or duration" of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-499 (1973). Therefore, Alston's claim that his due process rights have been violated in the context of parole revocation, such that his sentence has been lengthened, is an appropriate subject for review in the context of the instant habeas corpus petition.

However, Alston also argues that the Board's actions constituted constitutional rights violations, such as cruel and unusual punishment. These claims do not "challenge the very fact or duration of the confinement itself." Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002). Therefore, they are inappropriately raised in a habeas corpus petition. Constitutional claims that challenge the conditions of a prisoner's confinement may be brought pursuant to § 1983 of Title 42 in the first instance. See Nelson v. Campbell, 541 U.S. 637, 643 (2004); see also Preiser, 411 U.S. at 498-499. Therefore, these claims will be dismissed.

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1); see also Preiser, 411 U.S. at 491-92 (1973) (exhaustion is required for challenges to the actions of a state administrative body). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000).

A state prisoner exhausts state remedies by giving the "state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been "fairly presented to the state courts." Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation also ...


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