The opinion of the court was delivered by: Pollak, J.
On November 14, 2008, petitioner Carlton F. Anderson filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. 1. On August 31, 2010, Magistrate Judge Perkin filed a Report and Recommendation ("R&R") that recommends denying petitioner's pro se petition. See Dkt. 15. On September 9, 2010, petitioner filed objections to the R&R. See Dkt. 16. Petitioner has also filed a separate motion for appointment of counsel. See Dkt. 19.
The procedural history of this case is set out in detail in the R&R, and this section will provide only a brief summary of that history.*fn1 Petitioner was convicted of rape, involuntary deviate sexual intercourse, and burglary, and sentenced on December 27, 1979 to sixteen to forty years imprisonment. On May 21, 2004, the Pennsylvania Board of Probation and Parole ("the Board") granted petitioner parole and he was released on November 11, 2004. At the time of his release, petitioner signed a form consenting, as a condition of his parole, to the search of his person, property, and residence by agents of the Board without a warrant. Petitioner's conditions of parole also barred him from consuming or possessing alcohol for any reason.
On January 26, 2007, Parole Agent Ryan Shaw ("Agent Shaw") arrested petitioner at his apartment for violating the conditions of his parole. Thereafter, a parole violation hearing was conducted at the State Correctional Institution at Graterford on May 1, 2007 ("Parole Hearing"). At the hearing, petitioner was represented by counsel. Agent Shaw testified that when he went to petitioner's apartment, he smelled alcohol on petitioner's breath, noticed that petitioner's eyes were glassy, and discovered a four pack of malt liquor in petitioner's refrigerator. Agent Shaw also testified that he took a urine sample from petitioner, and submitted into evidence a laboratory report indicating that the sample tested positive for ethanol. On August 6, 2007, the Board found, on the basis of Agent Shaw's testimony and the laboratory report, that petitioner had violated the condition of his parole related to alcohol possession and consumption. The Board recommitted petitioner as a technical parole violator to serve six months of backtime.*fn2
Petitioner sought review of the Board's decision in an administrative appeal filed on August 17, 2007 and a petition for review filed in the Commonwealth Court of Pennsylvania on November 6, 2007. In both proceedings, the Board's decision was affirmed. On September 30, 2008, the Pennsylvania Supreme Court denied petitioner's petition for allowance of appeal. On November 13, 2008, petitioner filed the petition for habeas corpus presently before this court. The petition contains the following claims: (1) Agent Shaw committed forgery and fraud at the Parole Hearing by falsifying several documents used at the hearing, including the laboratory report and a urine sample document, and by forging petitioner's signature; (2) Agent Shaw committed perjury at the Parole Hearing by falsely testifying that petitioner submitted a urine sample on January 26, 2007; and (3) petitioner's Fourth and Fourteenth Amendment rights were violated when Agent Shaw conducted an illegal search of petitioner's apartment and the Board violated petitioner's due process rights by allowing a criminal/civil violation to take place at the Parole Hearing. See Petition at 9.
On February 4, 2010, this case was referred to Judge Perkin for preparation of an R&R. On March 9, 2010, Respondents filed their Response to the Petition, which contends that the claims raised in the petition are procedurally defaulted and also fail to state a claim upon which relief can be granted. See Dkt. 9. Petitioner filed a response, see Dkt. 11, along with several other documents, some addressed to this court and others containing letters sent by petitioner to prison and parole board officials. See Dkt. 10, 12-14.
On August 31, 2010, Judge Perkin issued the R&R. While recognizing
that petitioner's claims "may be procedurally defaulted because they
were not presented at each level of the state court," the R&R
nonetheless, "[i]n an abundance of caution," examined the merits of
petitioner's claims. R&R at 13. The R&R, following respondents' brief,
characterized petitioner's claims as claims pursuant to (1) the Fourth
Amendment right against unreasonable searches and seizures; (2) the
Fourteenth Amendment right to due process; and (3) the Sixth Amendment
right to effective assistance of counsel. See R&R at 13-14.*fn3
After carefully analyzing each of these claims, the R&R
determined that each failed on the merits. See id. at 14-23. The R&R
also concluded that a certificate of appealability is not warranted in
this case. See id. at 23. On September 9, 2010, petitioner filed
objections to the R&R. See Dkt. 16. In addition, on April 5, 2011,
petitioner filed a motion for appointment of counsel. See Dkt. 19.
Like the R&R, this court will examine petitioner's claims on the merits without determining whether those claims are procedurally defaulted. See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
Petitioner alleges that the Board violated his Fourth Amendment rights by conducting an unreasonable search and seizure when Agent Shaw searched his residence on January 26, 2007, and that this violation should be grounds for the issuance of a writ of habeas corpus. See Petition at 9. As the R&R recognized, this claim is without merit for two reasons. First, "the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee." Samson v. California, 547 U.S. 843, 857 (2006). Like the parolee in Samson, see id. at 846, the petitioner in this case signed an agreement consenting to the search of his person, property, and residence without a warrant. See R&R at 14-15. Second, even if it could be argued that the Board violated petitioner's Fourth Amendment rights when Agent Shaw searched his apartment, such a violation would not be grounds for the issuance of a writ of habeas corpus because "parole boards are not required by federal law to exclude evidence obtained in violation of the Fourth Amendment." See Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
Petitioner also argues that his Fourteenth Amendment due process rights were violated because, according to petitioner, Agent Shaw perjured himself and falsified documents entered into evidence at the Parole Hearing. See Petition at 9.*fn4 The R&R recommended rejecting ...