United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
C. Mitchell, United States Magistrate Judge.
Kaparakos by her counsel has submitted a petition for a writ
of habeas corpus. 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.
was original convicted upon her plea of guilty and sentenced
to four to twenty-three months incarceration to be followed
probation on July 14, 2014 at CP-02-CR-9181-2014 in the Court
of Common Pleas of Allegheny County,
seeks habeas corpus relief from this Court not based on her
conviction or sentence but on the grounds that:
The Pennsylvania Board of Probation and Parole unlawfully
rescinded their prior grant of parole to Ms. Kaparakos. The
Board's denial and rescission of parole was arbitrary,
capricious and relied on false and unreliable information.
This denial resulted in the deprivation of Ms. Kaparakos'
due process rights.
April Kaparakos has been incarceration on a probation
violation since approximately November of 2015. On July 27,
2016 the Pennsylvania Board of Probation and Parole granted
Ms. Kaparakos parole conditioned upon her completion of an
approved plan. Ms. Kaparakos was close to completing the plan
and being released from SCI Muncy when on August 28, 2016, a
fellow inmate attacked Ms. Kaparakos. This incident caused
the Pennsylvania Board of Probation and Parole to rescind
their conditional grant of parole to Ms. Kaparakos and order
that she serve the maximum sentence. The Pennsylvania Board
of Probation and Parole's decision to rescind Ms.
Kaparakos' parole occurred on November 17,
Defoy v. McCullough, 393 F.3d 439, 445 (3d
Cir.2005), cert. denied 545 U.S. 1149 (2005) it was held that
"we conclude that claims of constitutional violations in
the denial of parole in Pennsylvania need not be presented to
the state courts via a petition for writ of mandamus in order
to satisfy the requirement of exhaustion" (footnote
to its answer, the Commonwealth has provided documents
supporting its actions:
On July 27, 2016, the Board granted conditional parole
dependent on completion of institutional programming and an
approved plan. The maximum date was November 28, 2017. (Ex.
On September 12, 2016, the Board noted that on August 28,
2016, petitioner incurred a Class I misconduct for fights and
refusing to obey an order, and a thirty day period of
disciplinary confinement was imposed effective August 28,
2016. (Ex. 11).
On September 13, 2016, the Board rescinded its July 27, 2016
parole determination and directed that the petitioner serve
her maximum sentence which expires on November 28, 2017. (Ex.
On September 23, 2016, the Department of Corrections denied
petitioner's appeal from an institutional disciplinary
action. (Ex. 9).
On November 17, 2016, the Board formally rescinded its July
27, 2016 release order due to misconduct and denied parole
with petitioner ordered to serve her unexpired maximum
sentence which expires on November 28, 2017. (Ex. 12).
relevant Pennsylvania statute, 61 Pa.C.S.A.§ 6137 does
not create a mandatory expectation of parole which has been
determined to be a matter of grace. Rogers v.
Pennsylvania Board of Probation and Parole, 555 Pa. 285
(1999). In the absence of a state mandated right of parole,
parole is a matter of mere possibility and does not invoke a
federally protected liberty interest. Kentucky Department
of Corrections v. Thompson, 490 U.S. 455 (1989). In
Connecticut v. Dumschat, 452 U.S. 458 (1981), the
Court recognized that where there is no liberty interest
created, there is no constitutional basis for relief. Since
federal habeas corpus relief is premised on violations of
constitutional proportion, no such factors exist here since
the reasons for denying parole were based on the
plaintiff's conduct inside the institution and not on
some arbitrary basis such “race, religion, political