United States District Court, M.D. Pennsylvania
H. RAMBO United States District Judge
January 12, 2017, the Court received and docketed a petition
for a writ of habeas corpus pursuant to 28 U.S.C. §
from pro se Petitioner Ernest Priovolos. (Doc. No.
1.) By Order dated May 10, 2017, in accordance with
United States v. Miller, 197 F.3d 644 (3d Cir. 1999)
and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000),
Petitioner was advised that he could (1) have the petition
ruled on as filed, that is, as a § 2254 petition for
writ of habeas corpus and heard as such, but lose his ability
to file a second or successive petition, absent certification
by the court of appeals, or (2) withdraw his petition and
file one all-inclusive § 2254 petition within the
one-year statutory period prescribed by the Antiterrorism
Effective Death Penalty Act (“AEDPA”). (Doc. No.
3.) Petitioner did not return the Notice of Election Form
but, rather, filed a document entitled “request for a
hearing” (Doc. No. 4) wherein he indicated that his
petition should be a § 2241 habeas petition, not a
§ 2254 habeas petition.
Petitioner names as Respondent the Pennsylvania Department of
Corrections and the Attorney General of Pennsylvania.
However, the proper respondent in a petition for a writ of
habeas corpus is the state officer who has official custody
of the Petitioner. See Rule 2 of the Rules Governing
Section 2254 Cases in the United States District Court and
advisory committee notes (1976), 28 U.S.C. foll. § 2254;
see also Rumsfeld v. Padilla, 542 U.S. 426, 435
(2004) (“[T]he proper respondent is the warden of the
facility where the prisoner is being held, not the Attorney
General or some other remote supervisory official.”).
while Petitioner provides that his place of confinement is
SCI-Rockview, Bellefonte, Pennsylvania (Doc. No. 1), he
provides what appears to be a residential mailing address
where he requests the documents in this case be sent.
(Id.) A search by this Court of publicly available
records confirms that Petitioner has been released from
custody of the Pennsylvania Department of Correction's
Court will now give preliminary consideration to the habeas
petition pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the U.S. District Courts, 28 U.S.C. foll.
§ 2254. See Patton v. Fenton, 491 F.Supp. 156,
158-59 (M.D. Pa. 1979).
§ 2254 habeas corpus petition may be brought by a state
prisoner who seeks to challenge either the fact or duration
of his confinement in prison. See Preiser v.
Rodriguez, 411 U.S. 475, 486-87 (1973). Federal habeas
corpus review is available only “where the deprivation
of rights is such that it necessarily impacts the fact or
length of detention.” Leamer v. Fauver, 288
F.3d 532, 540 (3d Cir. 2002). Where “a judgment in
petitioner's favor would not affect the fact or duration
of petitioner's incarceration, habeas relief is
unavailable.” Suggs v. B.O.P., No. 8-3613,
2008 WL 2966740, at *4 (D.N.J. July 31, 2008).
United States Supreme Court has “interpreted the
statutory language as requiring that the habeas petitioner be
‘in custody' under the conviction or sentence under
attack at the time his petition is filed.” Maleng
v. Cook, 490 U.S. 488, 490-91 (1989); see also
Spencer v. Kemna, 523 U.S. 1 (1998). Although the
“in custody” language does not require that a
prisoner be physically confined in order to challenge his
sentence in habeas corpus, see e.g., Jones v.
Cunningham, 371 U.S. 236, (1963) (prisoner who is on
parole is “in custody”), the Supreme Court
“ha[s] never held ... that a habeas petitioner may be
‘in custody' under a conviction when the sentence
imposed for that conviction has fully expired at the time his
petition is filed.” Maleng, 490 U.S. at 491;
see also Drakes v. INS, 330 F.3d 600 (3d Cir. 2003).
Thus, “once the sentence imposed for a conviction has
completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an
individual ‘in custody' for the purposes of a
habeas attack upon it.” Maleng, 490 U.S. at
Supreme Court has noted in Daniels v. United States,
532 U.S. 374 (2001), habeas corpus and similar collateral
remedies “are not available indefinitely and without
limitation.” Id. at 375. Once a state
conviction “is no longer open to direct or collateral
attack in its own right because the defendant failed to
pursue those remedies (or because the defendant did so
unsuccessfully) the conviction may be regarded as
conclusively valid.” Lackawanna County v.
Coss, 532 U.S. 394, 403 (2001); see also
Maleng, 490 U.S. at 492 (federal habeas corpus relief
should not be extended “where a habeas petitioner
suffers no present restraint from a conviction.”).
pending action is set forth in four (4) sparsely worded
paragraphs. Based upon a careful review of Priovolos'
filing, it is unclear as to whether he is presently serving a
sentence imposed upon him or whether he suffers any restraint
from his conviction. Indeed, his Petition and exhibits
attached thereto indicate the potential that his sentence and
parole have now expired. Accordingly, this Court is unable to
undertake an informed determination as to Petitioner's
status and Petitioner is directed to address the in
custody/collateral consequence issue. Further action will not
be taken by this Court until this issue is initially
addressed by Petitioner.
corpus relief cannot be granted unless all available state
remedies have been exhausted, or there is an absence of
available state corrective process, or circumstances exist
that render such process ineffective to protect the rights of
the applicant. See 28 U.S.C. § 2254(b)(1). The
exhaustion requirement is grounded on principles of comity in
order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to
state convictions. See Werts v. Vaughn, 228 F.3d
178, 192 (3d Cir. 2000). A state prisoner exhausts state
remedies by giving the “state courts one full
opportunity to resolve any constitutional issues by invoke
one complete round of the State's established appellate
review process.” O'Sullivan v. Boerckel,
526 U.S. 838, 844-45 (1999). Fair presentation also requires
the petitioner to raise the claim in a procedural context in
which the state courts can consider it on the merits.
not necessary for a petitioner seeking federal habeas relief
to present his federal claims to state courts both on direct
appeal and in a PCRA proceedings. Swanger v.
Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). However, a
petitioner is not deemed to have exhausted the remedies
available to him if he has a right under the state law to
raise, by any available procedure, the question presented. 28
U.S.C. § 2254(c); Castille v. Peoples, 489 U.S.
346, 350 (1989). The petitioner bears ...