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Thomas v. Pennsylvania Board of Probation and Parole

July 1, 2008

ANTHONY THOMAS, PETITIONER
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, ET AL., RESPONDENTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

Petitioner Anthony Thomas, an inmate presently confined at the Mahanoy State Correctional Institution ("SCI-Mahanoy") in Frackville, Pennsylvania, commenced this action pro se by filing a petition pursuant to 28 U.S.C. § 2254. Petitioner challenges the August 30, 2004 decision of the Pennsylvania Board of Probation and Parole ("the Board") finding him to be in violation of the conditions of his parole and recommitting him to a state correctional institution to serve the remaining twelve months of his sentence. For the reasons set forth below, the petition will be denied.

I. Background*fn1

On January 6, 2000, Thomas was arrested by the City of Harrisburg Police and charged with two (2) counts of robbery and one (1) count of public drunkenness. (See Doc. 12-2 at 2.) On February 8, 2001, following a jury trial in the Dauphin County Court of Common Pleas, Thomas was found guilty and was sentenced to a term of incarceration of thirty-two to sixty-four months. (See id. at 6.) The Pennsylvania Department of Corrections calculated the minimum expiration date of Thomas's sentence to be September 6, 2002 and the maximum expiration date to be May 6, 2005. (See id.)

On July 8, 2002, approximately two months before his minimum expiration date, Thomas was paroled to a Community Corrections Center. (See id. at 9.) He was released on parole on his minimum expiration date of September 6, 2002. (See id.) On June 9, 2003, the Board declared Thomas delinquent because he failed to comply with the condition of his parole requiring him to report for a scheduled appointment on June 5, 2003. (See id. at 15.) Thomas was declared delinquent as of May 22, 2003 because the last contact that the Board had with him was on May 14, 2003. (See Doc. 12-1 ¶ 9.) Shortly thereafter, a wanted notice was issued on Thomas. (See id. ¶ 10.)

Over one year later, on May 17, 2004, Thomas was arrested by the Dauphin County Sheriff's Department and charged with resisting arrest, flight to avoid apprehension, escape, and aggravated assault. (See Doc. 12-2 at 17-19.)

On May 24, 2004, Parole Officer Roland served Thomas with notice of his technical parole violations. (See Doc. 1-1 at 8.) At a preliminary hearing held on May 28, 2004, one of the violations was dismissed, and a parole violation hearing was scheduled for August 11, 2004. (See id. at 9.) Following hearing on August 11, 2004, the Board issued a decision on August 30, 2004 finding Thomas guilty of violating the conditions of his parole requiring him to seek permission before changing residences and to report to the Board as instructed. (See Doc. 12-2 at 24.) The Board recommitted Thomas to a state correctional institution to serve the remaining twelve months of his sentence. (See id.) Thomas also was detained pending disposition of the criminal charges stemming from his May 17, 2004 arrest. (See id.)

On September 2, 2004 and September 14, 2004, the Board received letters from Thomas requesting "administrative relief." (See id. at 26-29.) In his letters, Thomas claimed that the Board failed to timely notify him of the charges of parole violations against him where he was arrested on May 17, 2004 and served with notice on May 24, 2004. (See id.) He claimed that 37 Pa. Code § 71.2 requires that parolees be notified of charges of parole violations within twenty-four hours of their arrest.*fn2 (See id.) The letters were processed as administrative appeals pursuant to 37 Pa. Code § 73.1(a). (See Doc. 12-1 ¶ 16.) On September 27, 2004, Assistant Counsel for the Board mailed a response to Thomas dismissing his appeal on the basis that a representative of the Board visited him within a reasonable time, and thus the Board acted in compliance with its present regulations set forth in 37 Pa. Code § 71.2. (See Doc. 12-2 at 31.)

On September 30, 2004, the Board received a third letter from Thomas requesting "administrative relief." (See id. at 33-36.) Thomas again raised his claim that the Board did not timely provide him with notice of the charges of parole violations. (See id.) In addition, he claimed that the Board erred in basing its guilty finding on hearsay evidence and that the hearing examiner violated his right to due process by denying him the opportunity to testify and to confront and cross-examine witnesses. (See id.)

By letter dated October 18, 2004, Assistant Counsel for the Board informed Thomas that his third request for administrative relief would be dismissed as unauthorized pursuant to 37 Pa. Code. § 73.1(b), which provides that second or subsequent petitions for administrative review will not be received. (See id. at 38.) Nevertheless, Assistant Counsel responded to Thomas's claims "purely for [his] information." (See id.)

Thomas alleges that, on October 9, 2004, he filed a "Writ of Mandamus" with the Dauphin County Court of Common Pleas. (See Doc. 1-1 at 12.) Thomas attaches the document, which does not have a stamp indicating where and when it was filed, to his petition. (See Doc. 1-4 at 2.) In his "Writ," Thomas claims that, at his August 11, 2004 parole violation hearing, he was denied effective assistance of counsel and due process. (See id.) He further claims that the Board's decision that he was guilty of violating parole was based upon insufficient evidence. (See id.) Thomas also attaches a letter dated January 13, 2005 that he wrote to the Dauphin County Clerk of the Court of Common Pleas ("Dauphin County Clerk") with a date stamp indicating that it was received by that office on January 18, 2005. (See id. at 6.) In that letter, Thomas inquired about the status of his "Writ of Mandamus" and stated that "it is to be directed to the Pennsylvania Board of Probation and Parole." (See id.) Thomas also attaches a notification he received from the Dauphin County Clerk dated January 19, 2005 stating that his "motion was forwarded to the Pennsylvania Board of Probation and Parole." (See id. at 7.) Thomas attaches a letter to his petition dated February 10, 2005 that he wrote to the Commonwealth Court of Pennsylvania in which he inquires whether the Court received the "Writ of Mandamus" that he filed with the Dauphin County Clerk and that was forwarded to the Board. (See Doc. 1-3 at 2.)

In his petition, Thomas alleges that, on February 13, 2005, he filed an "Amended Petition for Review" with the Commonwealth Court of Pennsylvania. (See Doc. 1-1 at 12.) He attaches the "Amended Petition for Review," which is not date stamped, to his petition. (See Doc. 1-3 at 3.) The Commonwealth Court construed this filing as a petition seeking administrative relief from the Board, and by order dated March 14, 2005, transferred the matter to the Board. (See Doc. 1-3 at 10.) By letter dated March 21, 2005, Thomas notified the Commonwealth Court that he already sought administrative relief from the Board. (See id. at 11). By order dated March 28, 2005, the Commonwealth Court construed Thomas's letter as a motion for reconsideration of its March 14 order and granted the motion, but quashed his petition for review as untimely filed pursuant to Pa. R. App. P. 1512(a)(1).*fn3 (See id. at 13.)

Thomas did not file a petition for allowance of appeal with the Pennsylvania Supreme Court.

On December 27, 2005, Thomas filed the instant petition for writ of habeas corpus with this court ...


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