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Smith v. Nish

May 24, 2007

JOHN D. SMITH PETITIONER,
v.
JOSEPH P. NISH, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM

John D. Smith, an inmate currently confined at the State Correctional Institution at Waymart, Pennsylvania, brought this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. He proceeds pro se and in forma pauperis.

Smith's petition challenges actions by the Pennsylvania Board of Probation and Parole ("Board") in failing to reparole him on three (3) occasions. He further appears to challenge the Board's subsequent grant of re-parole on September 26, 2006, on the basis that he must first meet conditions before he is actually released on parole.

Service of the petition was directed on November 30, 2006, and a response to the petition was filed on January 9, 2007. (Dkt. Entry 14.) A traverse has been filed by Smith. (Dkt. Entry 16.) The matter is ripe for consideration and, for the reasons that follow, the petition will be denied.

I. Background

On November 21, 1994, Smith was sentenced to six (6) to fifteen (15) years imprisonment by the Luzerne County Court of Common Pleas, Pennsylvania, following a plea of guilty to third degree murder. On December 13, 1999, he was released on parole by the Pennsylvania Board of Probation and Parole. On August 30, 2001, the Board recommitted Smith as a technical parole violator. Following his re-commitment, Smith was reviewed for and denied re-parole on three occasions -- October 24, 2002, November 26, 2003, and December 9, 2004 (Dkt. Entry 14, Exs. D-F.)

Following the December 9, 2004 denial, Smith filed an appeal to the Pennsylvania Commonwealth Court, claiming that the Board violated his right to due process under the Fourteenth Amendment when "it stepped outside the criteria established in 61 P.S. § 331.19" by requiring him to write a statement of the offenses committed and failing to provide him with any guidance on how to do so. He claims that because his written statements did not satisfy the Board, he was denied re-parole on all three occasions.

After his appeal was denied by the Commonwealth Court, Smith pursued the matter to the Pennsylvania Supreme Court. Counsel was appointed for Smith, and, according to Smith, a "hearing" date was scheduled. Prior to the "hearing," Smith was again reviewed for parole.

On September 26, 2006, the Board decided to grant re-parole with conditions. (Dkt. Entry 1, Pet., Ex. 1.) One of the conditions of parole was successful completion of a Batterers' Intervention program offered by the Pennsylvania Department of Corrections.

Because Smith had been granted parole, the Board filed a motion in the Pennsylvania Supreme Court to dismiss Smith's appeal as moot. By Order dated October 6, 2006, the Pennsylvania Supreme Court, with one Justice dissenting, granted the motion to dismiss. (Dkt. Entry 1, Pet., Ex. 3.)

It is undisputed that, while Smith has been granted re-parole, he has yet to be released from confinement because he has been unable to complete the Batterers' Intervention program. Smith challenges the Board's actions in granting him re-parole as a tactic to avoid Supreme Court scrutiny of his challenge to the denial of parole, while at the same time assuring his incarceration by imposing an arbitrary condition. He contends that because there is a waiting list to enter the required program and there is a six month program completion time, he realistically has not been granted parole.

II. Discussion

A. Denials of Reparole*fn1

Smith first challenges the Board's denial of parole following his re-commitment as a technical parole violator. Because the appropriate remedy for a successful habeas action challenging the Board's denial of parole is generally to remand the case for a new parole consideration, Smith's challenge to the denial of parole appears moot in light of the fact that ...


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