UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
June 7, 2010
DAVID R. KAUFMAN, PETITIONER
KENNETH CAMERON, ET AL., RESPONDENTS.
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 should be dismissed due to Kaufman's failure to exhaust his available state-court remedies before seeking habeas relief.
A habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state prisoner to challenge the "fact or duration" of his confinement. Leamer v. Fauver, 288 F.3d 532 (3d Cir. 2002). Habeas relief cannot be granted unless petitioner has exhausted all available state remedies on the federal claims raised in the petition. See 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731-32, 111 S.Ct. 2546, 2554-2555, 115 L.Ed.2d 640 (1991); Slutzker v. Johnson, 393 F.3d 373, 379 (3d Cir. 2004). The principle of exhaustion, which is founded on comity, requires a petitioner "to give the state courts a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts . . . by invoking one complete round of the State's established appellate review process," including petitioning for discretionary appeal. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45, 119 S.Ct. 1728, 1732-1733, 144 L.Ed.2d 1 (1999); Holloway v. Horn, 355 F.3d 707 714 (3d Cir. 2004). The petitioner bears the burden of establishing that all available state remedies have been exhausted. Parker v. Kelchner, 429 F.3d 58, 62 (3d Cir. 2005).
Pennsylvania parolees challenging the revocation of parole have state-court remedies available. The parolee must first file an administrative appeal. See 37 Pa. Code § 73.1(b)(1); see Kester v. Pa. Bd. of Prob. and Parole, 148 Pa. Commw. 29, 34, 609 A.2d 622, 624 (1992)(citing Bronson v. Pa. Bd. of Prob. and Parole, 491 Pa. 549, 555-57, 421 A.2d 1021, 1024-25 (1980)). From there he can appeal to the Pennsylvania Commonwealth Court. See 42 Pa. Con. St. Ann. § 763; Borsello v. Colleran, 833 A.2d 1213, 1215 (Pa. Commw. 2003) ("Appeals of the Board's parole revocation and recommitment orders are within the exclusive appellate jurisdiction of the Commonwealth Court."). The third and final step is a petition to the Pennsylvania Supreme Court for allowance of appeal. Williams v. Wynder, 232 F. App'x 177, 178 (3d Cir. 2007) (nonprecedential). If the parolee fails to seek review from the Supreme Court of Pennsylvania, then the state claim is unexhausted. Id. at 181.
A federal court is required to dismiss without prejudice habeas petitions that contain any unexhausted claims. Slutzker, 393 F.3d at 379. For claims not fairly presented to the state court, but for which "further state-court review is clearly foreclosed under state law, exhaustion is excused on the grounds of futility." Wenger v. Frank, 266 F.3d 218, 223 (3d Cir. 2001). Although futile claims are deemed exhausted for federal habeas purposes, such claims are also procedurally defaulted; federal courts are not permitted to evaluate the merits of procedurally defaulted claims unless the petition "establishes 'cause and prejudice' or a 'fundamental miscarriage of justice' to excuse the default." McCandless v. Vaughn, 172 F.3d 255, 260 (3d Cir. 1999); see also Coleman, 501 U.S. at 750-751, 111 S.Ct. at 2565-2566. The doctrine of procedural default therefore ensures that a state prisoner cannot evade the exhaustion requirement of § 2254 by defaulting his federal claims in state court. Id., 501 U.S. at 731-32, 111 S.Ct. at 2554-2555.
To demonstrate "cause" for a procedural default, the petitioner must show that some objective external factor impeded petitioner's efforts to comply with the state's procedural rule. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986);Leyva v. Williams, 504 F.3d 357, 366 (3d Cir. 2007). To demonstrate "actual prejudice," the petitioner must show "not merely that the errors created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting the entire proceeding with error of constitutional dimensions." See U.S. v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 1596, 71 L.Ed.2d 816 (1982). Finally, a federal court may excuse procedural default when its failure to review the claim will result in a fundamental miscarriage of justice. Edwards v Carpenter, 529 U.S. 446, 451, 120 S.Ct. 1587, 1591, 146 L.Ed.2d 518 (2000); Wenger, 266 F.3d at 224. The miscarriage of justice exception applies only in extraordinary cases where a "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S. at 496, 106 S.Ct. at 2649. "'[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623, 118 S.Ct. 1604, 1611, 140 L.Ed.2d 828 (1998).
In the present case, Kaufman states that he attempted to exhaust his administrative remedies without success. (Doc. 19, Traverse at p. 1)("Petitioner attempted twice to obtain administrative relief from the [the Board] and attempted to obtain habeas corpus relief from the Mifflin County Court of Common Pleas but both attempts were denied"). Kaufman, however, does not assert that he appealed the Board's denials to Commonwealth Court let alone sought review from the Supreme Court of Pennsylvania.
As Respondents suggest, Kaufman's claims challenging the Board's revocation of his parole are procedurally defaulted. Consequently, this court can only consider his claims if he can demonstrate either cause and prejudice for the default or that a fundamental miscarriage of justice would result if the court declined to hear them. However, he has not presented any evidence to excuse his default. Additionally, as Kaufman admits that he did violate a known condition of his parole, he has failed to establish a fundamental miscarriage of justice to overcome his procedural default.*fn4
C. Motion for Renewal of Bail
Petitioner filed a "Renewal of Motion for Bail with Summary Judgment" on January 12, 2010, seeking to prevent further "irreparable harm" based on his continued detention. Because we have decided that the petition lacks merit, this motion will be denied.
For the foregoing reasons, we will issue an order denying the petition. The order will deny a certificate of appealability, based on the analysis of this memorandum. However, petitioner is advised that he has the right for thirty (30) days to appeal our order denying his § 2254 motion, see Federal Rule of Appellate Procedure 4, and that our denial of a certificate of appealability does not prevent him from doing so, as long as he also seeks a certificate of appealability from the court of appeals, see 28 U.S.C. § 2253.
We will issue an appropriate order.
AND NOW, this 7th day of June, 2010, upon consideration of the petition for a writ of habeas corpus under 28 U.S.C. § 2254, and pursuant to the accompanying memorandum, it is ordered that:
1. The petition for writ of habeas corpus (doc. 1) is denied.
2. Petitioner's motion for summary judgment (doc. 22) and motion (doc. 20) for bail pending habeas are denied.
3. A certificate of appealability is denied.
4. The Clerk of Court shall close this file.
William W. Caldwell United States District Judge