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Neal v. Potteiger

United States District Court, W.D. Pennsylvania

February 4, 2015

PHILIP L. NEAL, Petitioner,
v.
MICHAEL C. POTTEIGER, Chairman, Pennsylvania Board of Probation and Parole, and the PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondents.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

It is respectfully recommended that the Motion to Dismiss filed by Respondents (ECF No. 10) be granted, that the petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be dismissed, and that a certificate of appealability be denied.

II. REPORT

On August 8, 2014, Petitioner, Philip L. Neal, filed a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. At the time of his filing, he was incarcerated at the State Correctional Institution at Pittsburgh. He seeks habeas relief based on (i) the failure of the Pennsylvania Board of Probation and Parole (the "Board") to transfer his parole supervision to the State of South Carolina and (ii) the Board's decision to recommit him as a technical parole violator. As relief, he seeks an order from this Court ordering the Board "to notify [his] home State of South Carolina for initiation of [his] parole via Interstate Compact." (ECF 1 at 16). Respondents have filed a motion to dismiss requesting that Neal's first claim be dismissed for failure to state a habeas claim and that his second claim be dismissed for mootness as Neal has been reparoled. (ECF No. 10). Petitioner has filed a Reply in opposition. (ECF No. 14).

A. Relevant Factual and Procedural History

On March 14, 2012, Neal was sentenced in the Court of Common Pleas of Washington,

County, Pennsylvania, to serve two to four years for Aggravated Assault with a Deadly Weapon and a consecutive two year term for Simply Assault. (ECF No. 1). This resulted in a total sentence of three to six years to be served in a state correctional institution at inmate number KL-7406. The minimum and maximum sentence dates of this sentence are July 24, 2012 and July 24, 2015, respectively. (ECF No. 10-2, at ¶ 8).

On March 10, 2014, the Pennsylvania Board of Probation and Parole ("Board") granted Neal parole, subject to various parole conditions. ( Id . at ¶ 9.) His approved residence upon release was the Penn Pavilion Center in New Brighton.

By decision mailed August 19, 2014, the Board recommitted Neal as a technical parole violator for assaultive behavior. ( Id . at ¶ 10.) Neal was automatically reparoled by statute on November 2, 2014, approximately three months after he filed the instant petition. ( Id . at ¶ 11.) Neal's approved residence was again the Penn Pavilion Center in New Brighton, Pennsylvania. Neal recently advised the Court that his current address is 1131 Pennsylvania Avenue, Monaca, PA. ( See ECF No. 12 - Change of Address).

Neal is not currently incarcerated on his sentence at inmate number KL-7406. He is being supervised in Pennsylvania, with his parole currently set to expire on July 24, 2015. (ECF No. 10-2, at ¶ ¶ 14-15).

B. Legal Analysis

a. Failure to State a Claim

Neal seeks habeas corpus relief from this Court based on the Board's failure to transfer his parole supervision to the State of Carolina under the Interstate Compact for Adult Offender ...


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