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Johnson v. Diguglielmo

February 26, 2008

CARL L. JOHNSON, AP-2785, PETITIONER,
v.
DAVID DIGUGLIELMO, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Mitchell, M.J.

Opinion and Order

Carl L. Johnson has presented a petition for a writ of habeas corpus. For the reasons set forth below, the petition will be dismissed and a certificate of appealability will be denied as no reasonable jurist could conclude that there is a basis for appeal. An appropriate order will be entered.

Carl L. Johnson, an inmate at the State Correctional Institution at Graterford has presented a petition for a writ of habeas corpus. In an order entered on January 8, 2008, the respondents and the Pennsylvania Board of Probation and Parole were directed to respond and show cause, if any, why the relief sought should not be granted.

Johnson was originally convicted of robbery, kidnaping and conspiracy at No. CC 76008723A in the Court of Common Pleas of Allegheny County, Pennsylvania. On July 26,, 1977 and November 21, 1977 he was sentenced to a twenty-five to fifty year period of incarceration, with an minimum expiration date of July 23, 2001 and a maximum sentence expiration date of July 23, 2026.*fn1 On August 26, 2002, the petitioner was released on parole.*fn2 Johnson was rearrested on March 12, 2007 upon his admission to abusing controlled substances.*fn3 On April 11, 2007 he was recommitted as a technical parole violator to serve nine months backtime as a result of his drug use.*fn4 At that time his parole maximum expiration date was incorrectly reported as July 23, 2006.*fn5 On May 15, 2007, his maximum parole date was corrected to read July 23, 2026.*fn6

In his petition, Johnson contends that at the time he reported to his parole officer he was assured that he would be placed in a rehabilitation program and permitted to continue his current employment. When that officer left the room, the petitioner contends he was shackled and transported to the State Correctional Institution at Greene. He further contends that when he was asked to sign a waiver of preliminary violation hearing he did so, but was unaware of the fact that he was also waiving his final violation hearing. Following being informed of the April 11, 2007 determination, he requested administrative relief; that despite informing the officials that he was being transferred to the State Correctional Institution at Graterford, his parole determination was mailed to Graterford and was not received by him until June 1, 2007; that upon receiving that determination he submitted a "Petition for a Writ of Mandamus" to the Commonwealth Court; that on June 21, 2007, the Commonwealth Court dismissed the petition as having been submitted to its original jurisdiction rather than its appellate jurisdiction and leave to appeal to the Pennsylvania Supreme Court was denied on October 26, 2007.*fn7 The instant petition was executed on December 17, 2007, and in it, Johnson contends he is entitled to relief on the following grounds:

1. He was denied due process in that the waiver he executed was not knowingly entered.

2.He was denied due process when parole agents erroneously assured him that he would be placed in the Back on Track program which resulted in his execution of the waivers and his incarceration.

3. He was denied due process when the Board erroneously stated his maximum release date was July 23, 2006 and without authority subsequently corrected it to July 23, 2026.

It is provided in 28 U.S.C. §2254(b) that: An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

This statute represents a codification of the well-established concept which requires that before a federal court will review any allegations raised by a state prisoner, those allegations must first be presented to that state's highest court for consideration. Preiser v. Rodriguez, 411 U.S. 475 (1973); Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Doctor v. Walters, 96 F.3d 675 (3d Cir. 1996).

It is only when a petitioner has demonstrated that the available corrective process would be ineffective or futile that the exhaustion requirement will not be imposed. Preiser v. Rodriguez, supra.; Walker v. Vaughn, 53 F.3d 609 (3d Cir. 1995).

If it appears that there are available state court remedies, the court must determine whether a procedural default has occurred. If a procedural default has occurred, the court must determine whether cause or prejudice exists for the default, or whether a fundamental miscarriage of justice would result from a failure to consider the claims. Carter v. Vaughn, 62 F.3d 591 (3d Cir. 1995).

In construing § 2254(d)(1), the Court in Williams v. Taylor, 529 U.S. 362, 412-413 (2000) stated:

Under ยง 2254(d)(1), the writ may issue only if one of the following two conditions is satisfied - the state-court adjudication resulted in a decision that (1) "was contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States." Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas ...


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