The opinion of the court was delivered by: Judge Caldwell
David Kaufman, an inmate at the Cresson State Correctional Institution, in Cresson, Pennsylvania, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 The petition challenges his 1999 convictions in the Mifflin County Court of Common Pleas and the imposition of an allegedly unlawful condition of parole by Pennsylvania Board of Probation and Parole that was the basis of a parole revocation.
Respondents argue that the statute of limitations bars Kaufman's challenge to his convictions and that he failed to exhaust his available state-court remedies with respect to his challenge to the Board's action. The court agrees and Kaufman's petition will be denied.
On July 26, 1999, Kaufman was sentenced to six consecutive sentences of eight to twenty-four months on six charges of terroristic threats. (Doc. 14-2, Commonwealth of Pennsylvania v. Kaufman, No. 371 of 1997 (Mifflin Co. Ct. Common Pleas)). He was also sentenced to a term of ten years of probation to run consecutively to his term of incarceration as a result of eleven additional charges of terroristic threats. (Id. at p. 2). Kaufman did not file a direct appeal. However, on July 25, 2002, he filed a motion for post-conviction relief.*fn2 The trial court dismissed the petition on April 13, 2003. (Id.) Petitioner did not appeal to the Superior Court of Pennsylvania. (Id.)
On July 11, 2005, the Board paroled Kaufman with a condition of parole which, as he puts it, effectively "banish[ed] [him] from Mifflin and Huntingdon counties." (Doc. 1 ¶ 11). In 2007, while still on parole, Kaufman learned that his mother, who resided in a Mifflin County nursing home, was terminally ill. Initially, Kaufman sought permission from the Board to travel to Mifflin County to visit her, but after the Board "fail[ed] to respond," Kaufman contacted his parole officer "who told him that he had not heard from the Board; but that if he were in the petitioner's circumstances he would go to Mifflin Co. to visit his mother." (Id. ¶ 18). Kaufman visited his mother, and on December 27, 2007, he was recommitted by the Board as a technical parole violator for violating the terms and conditions of his parole, i.e., visiting his dying mother in Mifflin County, (id. ¶ 12).
On May 11, 2009, Petitioner filed his 2254 petition. He challenges his convictions on the basis that his constitutional rights were violated when the district attorney did not provide the grand jury and his trial jury with the criminal information filed against him. (Doc. 1, Pet. ¶ 1). He challenges the Board's decision to recommit him on the basis that the condition of parole prohibiting him from entering Mifflin County was illegal. He does not dispute that he did not present these claims in any state-court proceeding.
A. Petitioner's Challenge to his Conviction Is Time-Barred
Respondents argue that Kaufman's challenge to his conviction is time-barred. A petitioner confined under a state-court judgment has one year to file a 2254 petition challenging the judgment. 28 U.S.C. § 2244(d)(1). In part, the limitations period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. at § 2244(d)(1)(A). A state-court criminal judgment becomes final, and the statute of limitations begins to run, "'at the conclusion of review in the United States Supreme Court or when the time for seeking certiorari review expires.'" Jones v. Morton, 195 F.3d 153, 157 (3d Cir. 1999)(quoting Kapral v. United States, 166 F.3d 565, 575 (3d Cir. 1999)). When relevant, the court must also take into account statutory tolling. Section 2244(d)(2) tolls the limitations period for the "time during which a properly filed application for State post-conviction relief or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2).
Applying these principles here shows Kaufman's 2254 petition is time-barred. He was sentenced on July 26, 1999, and he had thirty days to file an appeal with the superior court see Pa. R. App. P. 903(a); see also Pa R. Crim. P. 720(A)(3), but did not do so. His conviction thus became final on August 25, 1999, and the limitations period started on that date, meaning Petitioner had until August 25, 2000, to file a federal habeas petition. Of course, this deadline expired well before the filing date of May 11, 2009.*fn3
B. Petitioner Failed to Exhaust State-Court Remedies for the Challenge to the Board's Revocation of Parole
Petitioner contends the Board's imposition of a special condition of release, i.e. his "banishment" from Mifflin and Huntington counties, was an unconstitutional parole condition and constituted an unlawful Bill of Attainder. His parole was revoked and he was remanded to state prison on December 27, 2007. He does not deny he violated the conditions of his parole. Rather, he argues the conditions were unlawful. Respondents argue the petition ...