Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ascenzi v. Erickson

January 22, 2008

MICHAEL J ASCENZI, PETITIONER,
v.
CHARLES ERICKSON, RESPONDENT.



The opinion of the court was delivered by: Thomas I. Vanaskie United States District Judge

(JUDGE VANASKIE)

MEMORANDUM

I. Introduction

Before the Court is Petitioner Michael J. Ascenzi's pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254, challenging the revocation of his parole. Ascenzi asserts that the Pennsylvania Board of Probation and Parole ("the Board") relied upon fabricated evidence and hearsay testimony presented by his state parole agent to revoke parole. For the following reasons, Ascenzi's Petition will be denied and dismissed without an evidentiary hearing.

II. Statement of Facts

On February 6, 1997, the Court of Common Pleas of Luzerne County, Pennsylvania sentenced Ascenzi to a prison term of 4 1/2 to 10 years for a drug related charge. (Dkt. Entry 10-2, Respondent's Exhibit A, Certified Record ("CR") in Ascenzi v. Pa. Board of Probation & Parole, No. 372 C.D. 2005.) Ascenzi was granted parole on June 29, 2001. (Id.)

He was recommitted on January 1, 2003, as a convicted parole violator.

On September 22, 2003, the Board paroled Ascenzi for a second time, subject to a general parole condition that required him to abstain from the use of controlled substances without a valid prescription. His parole agent at that time was Bernard J. Dubaskas, Jr. On June 24, 2004, Ascenzi submitted a urine sample in accordance with the terms and conditions of his parole. (Id.) On July 21, 2004, Agent Dubaskas interviewed Ascenzi at the Pennsylvania State Police Barracks in Wyoming, Pennsylvania, following his arrest on a new drug charge. After Agent Dubaskas advised Ascenzi that his urine test came back positive for drugs. Ascenzi admitted to Agent Dubaskas that he took Vicodin, a narcotic pain reliever, without a prescription. (Id. at CR 22 - 23.)

On July 21, 2004, the Board issued a Warrant to Commit and Detain Ascenzi. (Id. at CR 20.) Ascenzi waived his Preliminary/Detention Hearing. (Id. at CR 22 - 27.) A Notice of Charges and Hearing was issued to Ascenzi advising him of the time and date of his violation hearing. (Id. at CR 30.) Ascenzi was charged as a technical parole for violating condition 5a of his parole, ingesting a controlled substance without a valid prescription. (Id.)

Petitioner was represented by counsel at his October 29, 2004, parole revocation hearing. (Dkt. Entry 10-2, Transcript of Parole Violation Hearing, CR 47 - 80.) At the hearing, Agent Dubaskas testified that, after informing Ascenzi of his positive June 24, 2004, urine sample, Petitioner admitted to taking a controlled substance, Vicodin, without a valid prescription. Agent Dubaskas then sought to introduce into evidence the urinalysis of Ascenzi's June 24, 2004, specimen. Ascenzi's counsel objected to the introduction of laboratory results. (Id. at CR 51 - 52.) The Hearing Examiner sustained Ascenzi's objection as to Agent Dubaskas' failure to lay a proper foundation authenticating the lab results. (Id.) As a result, the laboratory report was not admitted. (Id.)

Ascenzi testified at his parole revocation hearing. (Id. at CR 62.) Petitioner stated that Agent Dubaskas told him Oxycodone, not Vicodin, was found in his urine. Ascenzi denied taking any medication without a prescription. (Id. at CR 64.) Ascenzi told Agent Dubaskas that his girlfriend had a prescription of Vicodin and that he had a prescription for Percocet (also known as Endocet). He implied that he may have taken Vicodin rather than Percocet in error. (Id. at CR 63 - 65.) Ascenzi testified that his physician prescribed Endocet for him in June 2004 for pain related to two ruptured cervical discs. (Id. at CR 65; 74.) Ascenzi produced two July 2004 prescriptions from his physician for Endocet. (Id. at CR 66.) Agent Dubaskas objected to the admission of the July prescriptions as they were not originals, and because they were irrelevant to demonstrating whether Ascenzi was taking a prescription drug in June 2004. The Hearing Examiner sustained the objection. (Id. at CR 70.) Ascenzi denied taking any medication without a prescription. (Id. at CR 64.) Ascenzi denied ever admitting to Agent Dubaskas that he was "using Vicodin." (Id. at CR 71.)

Upon cross-examination, Agent Dubaskas questioned Petitioner about an additional September 24, 2003, special condition of his parole requiring him to advise parole staff "the next working day of any prescription medication [he] obtained as well as the dosage, the number of pills, the date it was obtained, the name of the doctor." (Id. at CR 72.) Ascenzi was also required to advise the prescribing doctor if he had a drug dependency problem. (Id.) Ascenzi verified his signature on a document outlining the terms of this special condition. (Id. at CR 72.) The document which outlined the terms of this special condition was admitted into evidence over Ascenzi's as it was already part of the file the Board maintained on Ascenzi. (Id. at CR 75 and 81.)

The Notice of Board Decision was rendered on December 17, 2004, and mailed to Petitioner on December 20, 2004. The Board re-committed Ascenzi as a technical parole violator and directed that he serve 12 months of back time for his violation of condition 5a, use of drugs. The Board specified that the evidence it relied upon was Agent Dubaskas' testimony and a documented PBPP form. (Id. at CR 84, Notice of Board Decision.)

Ascenzi filed an Administrative Appeal on January 20, 2005, contesting the Board's Decision. (Id. at CR 85 - 88.) In his appeal Ascenzi took issue with the Board's imposition of the maximum penalty, as well as the Board's reliance on the testimony of Agent Dubaskas concerning Ascenzi's alleged admission to the use of a prescription drug. (Id.) On May 9, 2005, the Board ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.