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Cabello v. PA Board of Probation and Parole

May 19, 2010

DAVID CABELLO, PETITIONER
v.
PA BOARD OF PROBATION AND PAROLE, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

David Cabello has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He pled guilty in the Court of Common Pleas of Bucks County, Pennsylvania, to charges of escape and burglary and is serving a total sentence of two and one-half to six years on the convictions. His petition challenges the convictions and a decision by the Pennsylvania Board of Probation and Parole to deny him parole.

The respondent warden argues in part that the statute of limitation bars the petition's challenges to the underlying convictions. The Board argues in part that the petition's challenge to its decision should be denied because the decision was constitutionally proper for several reasons.

After review of the parties' arguments, we agree with the warden that the petition is untimely as a challenge to Cabello's conviction and sentence. We also agree with the Board that there is no valid reason for disturbing its decision. We will therefore deny the petition.

II. Background

The parties' submissions reveal the following. Petitioner was serving a sentence for burglary and theft in the Bucks County Correctional Facility when he was transferred on March 5, 2004, to a halfway house in Philadelphia to serve the remainder of the sentence. On March 12, 2004, he left the facility. On March 18, 2004, Petitioner broke into a private home and stole money and a ring.

On June 15, 2004, Petitioner pled guilty to: escape from the facility; burglary and related charges; and possession of drug paraphernalia. On the same day, he was sentenced to two to four years for the burglary, and a consecutive term of one to two years for escape.*fn1 The escape sentence was later reduced to six to twenty-four months, so that the resulting term was two and one-half to six years' imprisonment.

Petitioner took a direct appeal challenging the propriety of the sentence. On April 25, 2005, the Pennsylvania Superior Court affirmed, and on November 10, 2005, the Pennsylvania Supreme Court denied Cabello's petition for review. Petitioner did not seek a writ of certiorari from the United States Supreme Court.

On May 11, 2007, petitioner filed a petition under the Pennsylvania Post Conviction Relief Act (PCRA). See 42 Pa. Con. Stat. §§ 9541-9546. The trial court denied the petition as untimely. On Petitioner's appeal, the Superior Court remanded so that the trial court could determine whether petitioner was voluntarily waiving appellate counsel, or, in the alternative, for the trial court to appoint appellate counsel. Appellate counsel was appointed, and the Superior Court remanded the case for the appointment of counsel to represent Petitioner at the trial-court level.

On August 26, 2009, the trial court denied the PCRA petition as untimely.*fn2

Petitioner did not appeal this decision to the Superior Court, but rather filed a "Petition for Writ of Mandamus and/or Extraordinary Relief" and an "Application for Leave to File Original Process" with the Pennsylvania Supreme Court. The Pennsylvania Supreme Court returned the petitions for defective filing.

The instant 2254 petition was docketed on March 19, 2009,*fn3 and Petitioner asserts he placed it in the prison mailbox on March 5, 2009, for mailing to the Clerk of Court. It raises four grounds for relief. Ground one is that the trial court "failed to consider mitigating factors in regard to character and background." Petitioner alleged the following factual support: "No presentence investigation. No findings that psychotropic drugs during the course of trial were medically appropriate. Involuntary guilty pleas. Ineffective assistance of counsel. Defective colloquy." (Doc. 1, CM/ECF p. 5). Ground Two is that the involuntary guilty pleas coerced Petitioner into giving statements to the Board. The alleged factual support for this claim is that the preliminary hearing transcript reveals that Petitioner did not unlawfully remove himself from the halfway house, thereby rendering the Board's denial of parole arbitrary and based on impermissible factors. (Id., p. 6). Ground Three is that there was no presentence investigation, meaning that there is no evidence supporting the Board's statement of reasons denying parole. ...


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