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Randy E. Hailstock, Hw-1688 v. Mr. Bickle

December 28, 2011


The opinion of the court was delivered by: Mitchell, M.J.:


Randy E. Hailstock has presented a petition for a writ of habeas corpus which he has been granted leave to prosecute in forma pauperis. For the reasons set forth below, the petition will be dismissed, and because reasonable jurists could not conclude that a basis for appeal exists, a certificate of appealability will be denied.

Hailstock was convicted of criminal trespass in the Court of Common Pleas of Mercer County, Pennsylvania on November 25, 2008 and sentenced to a one to five year period of incarceration. It is not his conviction which he challenges here but rather the actions of the Pennsylvania Board of Probation and Parole ("the Board") in denying him release on parole.*fn1

In response to the petition, the respondents have submitted the declaration of John Janis, an employee of the Board in which a detailed summary of the petitioner's criminal record is outlined. The petitioner was originally serving a one to two year sentence for theft by receiving stolen property and paroled in April 1979 to a detainer for a one to eight year sentence for robbery. He was paroled from the latter sentence on April 9, 1980 whereupon he was recommitted as a technical and convicted parole violator. On March 27, 1987, Hailstock was reparoled to a new three and a half to seven year sentence he received for offenses committed while on parole. He was again released on parole on October 13, 1988. While on parole he was again committed as a technical parole violator and for a new criminal offense. On May 28, 1992 he was reparoled to serve his new one to three year sentence on the underlying conviction which served as the basis for the parole revocation. He completed these sentences on May 28, 1995.*fn2

On November 15, 2008, Hailstock was sentenced to the one to five year sentence for criminal trespass with a minimum sentence expiration date of November 1, 2009 and a maximum expiration of November 1, 2013. Petitioner was considered for parole on three occasions and his release was denied.

His first denial occurred on August 6, 2009 when release was denied on the basis of need to participate in and complete additional institutional programs; his risk to the community; his prior unsatisfactory parole history and his denial of the nature and circumstances of the offense.*fn3

On August 5, 2010, he was again considered for parole and release was denied based on his prior unsatisfactory parole history; his risk to the community; his failure to demonstrate motivation for success and his denial of the offense.*fn4

Petitioner was again denied parole on June 22, 2011 due to his need to participate in additional institutional programs; his danger to the community; his lack of remorse and other factors.*fn5 These actions constitute the basis for the instant petition.

Hailstock now comes before this Court and contends he is entitled to relief on the following grounds:

1. Double jeopardy in that the Board arbitrarily and capriciously denied parole in reliance of the rationale of the sentencing judge.

2. Due process violation in arbitrarily denying his release on parole.

3. Equal protection violation by the Board in acting in other than a fair and impartial manner regarding his release.*fn6

Where, as here, a petitioner seeks to challenge the denial of parole on constitutional grounds, there is no exhaustion requirement except in very limited circumstances not relevant here. Defoy v. McCullough, 393 F.3d 439,444 (3d Cir.) cert. denied 125 S.Ct. 2970 (2005).

The petitioner first alleges that his repeated denials of parole violated the double jeopardy provisions of the Fifth Amendment which prohibits "any person . be[ing] subject for the same offence to be twice put in jeopardy of life or limb." This provision applies in criminal prosecutions and bars multiple punishments for the same crime, Hudson v. United States, 522 U.S. 93, 98-99 (1997). It is not applicable to parole proceedings since petitioner is not being required to serve a multiple or enhanced sentence but merely the unexpired portion of his sentence. North Carolina v. Pearce, 395 U.S. 711,717 (1960) overruled on other grounds Alabama v. ...

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