Riley v. Myers, Civil Action No. 01-6958 (E.D. Pa. 12/18/2002)

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THOMAS J. RILEY, Plaintiff, v. ROBERT W. MYERS, et. al., Defendant.

Civil Action No. 01-6958.

United States District Court, E.D. Pennsylvania.

December 18, 2002.

MEMORANDUM AND ORDER

NORMA L. SHAPIRO, District Judge.

Petitioner Thomas J. Riley ("Riley") is presently incarcerated at State Correctional Institution ("SCI") Rockview, Pennsylvania. Riley filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254; it alleged violations of his constitutional rights during and after his parole revocation hearing. This petition was referred to United States Magistrate Judge Carol Sandra Moore Wells who issued a Report and Recommendation ("R & R") that the petition be dismissed with prejudice. Riley has filed twenty-one objections to the R & R. After de novo consideration of the objections to the R & R, the R & R will be approved and adopted. Riley's Petition for Writ of Habeas Corpus will be denied and dismissed with prejudice, because Riley has failed to show denial of any constitutional right.

I. BACKGROUND AND PROCEDURAL HISTORY¹

On March 31, 1987, following a non-jury trial in the Court of Common Pleas, Philadelphia County, Riley was found guilty of robbery, criminal conspiracy and possession of an instrument of crime. See Commonwealth v. Riley, Nos. 1986-347, -348 and -352, Opinion at 1 (Ct. Com. Pl. Phila. Jan. 12, 1988). Riley was sentenced to a six to twelve year term of imprisonment. Id. The minimum expiration date of his sentence was September 19, 1994 and the maximum date was September 19, 2000. On direct appeal, Riley unsuccessfully claimed his conviction was invalidated by violation of Rule 1100,² because he was not tried within 180 days.³

On March 20, 1995, Riley was paroled, but on May 31, 1995, the Pennsylvania Board of Probation and Parole ("Board") found him delinquent. See Respondents Superintendent Myers [sic] and the Pennsylvania Office of Attorney General's Answer to the Petition for Writ of Habeas Corpus ("Resp.") at 1; Ex. 13, Report of Board of Probation and Parole ("Report").

Riley was arrested in Philadelphia on September 22, 1996. See Riley v. Pennsylvania Board of Prob. and Parole, No. 2132 C.D. 2000, Mem. Op. at 2 (Pa.Commw.Ct. May 31, 2001⁴). On September 27, 1996, the Board lodged a detainer warrant charging Riley with technical parole violations because of this arrest. Resp. at 1. Riley was granted a continuance with respect to disposition of his alleged technical parole violations pending the disposition of the criminal charges. Id. On May 21, 1997, Riley was convicted in state court of robbery, conspiracy, kidnaping and possession of an instrument of crime. Prior to sentencing on the new charges, Riley requested a panel hearing regarding revocation. On December 22, 1997, Riley was sentenced to a term of 25 to 50 years in state prison on the new charges. On March 21, 1998, Riley was convicted of additional federal charges of carjacking, conspiracy to commit carjacking, as well as aiding and abetting, and was sentenced to a federal prison term of 166 months. See Resp. at 2.

On April 17, 1998, Riley was returned to SCI Rockview. Id. Riley was represented by Public Defender David Crowley who, prior to a panel hearing, raised the issue of timeliness because more than 120 days had expired since Riley returned to SCI Rockview. See Resp., Ex. 9, Hearing Report at 2a (PBPP Dec. 18, 1998). Crowley's motion was denied. On September 22, 1998, Riley signed a waiver of a panel hearing.

On October 27, 1998, a violation/revocation hearing was held. On March 29, 1999, the Board recommitted Riley "when available": (1) to serve a term of 24 months backtime as a technical parole violator; and (2) to serve his unexpired term of 5 years, 1 month and 17 days from the 6-12 year sentence as a convicted parole violator. See Riley v. Pennsylvania Board of Prob. and Parole, No. 1448 C.D. 1999, Memo. Op. at 6 (Pa.Commw.Ct. April 20, 2000). These terms were to be served concurrently.

Riley, filing an administrative appeal with the Board on April 8, 1999, contended that the "when available" designation was illegal; the administrative appeal was denied. Riley then appealed to the Commonwealth Court, and, on April 20, 2000, the Commonwealth Court vacated the Board's order and remanded for a determination of Riley's custody status and commitment credit with respect to the federal sentence that had been imposed. Id. On July 3, 2000, after consulting with the Federal Bureau of Prisons, the Board made the status determination required by the court. See Resp., Ex. 14, Letter from Crowley to Riley, July 24, 2000. Public Defender Crowley notified Riley that there did not appear to be any grounds for an administrative appeal and told him that if Riley wanted to file himself, he must do so quickly. Id.

On July 31⁵, 2000, Riley filed a pro se petition for administrative review of the Board's July 3, 2000 decision. See Riley v. Pennsylvania Board of Prob. and Parole, No. 2132 C.D. 2000, Memo. Op. at 3 (Pa.Commw.Ct. May 31, 2001). On August 29, 2000, the Board denied the petition as untimely and unauthorized. See Resp., Ex. 15, Letter from Thomas to Riley, Aug. 29, 2000. Riley, appealing again to the Commonwealth Court, contended that Public Defender Crowley was ineffective for failing to preserve the issue of timeliness of the October, 1998, violation/revocation hearing in the April, 1999, administrative appeal. See Riley v. Pennsylvania Board of Prob. and Parole, No. 2132 C.D. 2000, Memo. Op. at 3 (Pa.Commw.Ct. May 31, 2001⁶). Riley was assisted in this appeal by Craig Miller, Esq. The Commonwealth Court, having determined that Riley had waived the ineffective assistance of counsel issue, affirmed the Board's August 29, 2000 order. See id. The Pennsylvania Supreme Court denied allocatur on October 22, 2001. See Riley v. Pennsylvania Bd. Of Prob. & Parole, No. 519 MAL 2001, 788 A.2d 381 (Pa. Oct. 22, 2001); Riley v. Pennsylvania Bd. Of Prob. & Parole, No. 154 MAP 2001, 791 A.2d 1152 (Pa. Jan. 15, 2002).⁷

Riley, filing this habeas corpus petition on December 20, 2001, raised three ineffective assistance of counsel claims. First, he claims attorney Crowley was ineffective in "failing to appeal [the] timeliness issue to Commonwealth Court that he raised at [the Board's October 27, 1998] initial hearing." Second, Riley claims attorney Crowley was ineffective in refusing to file a timely appeal from the Board's July 3, 2000 order, in disregard of Riley's written request, and failing to advise Riley timely that he would not file the appeal. Finally, Riley contends Attorney Miller was ineffective for failing to assert Crowley's "ineffectiveness in a proceeding before the board" prior to raising it in Commonwealth Court. Respondents contend all three claims were procedurally defaulted and should be dismissed.

The petition was referred to Magistrate Judge Carol Sandra Moore Wells for a Report and Recommendation ("R & R"). On August 27, 2002, Judge Wells recommended that Riley's Writ of Habeas Corpus be denied and dismissed with prejudice, because Riley had not met the procedural requirements to have his petition reviewed. Riley filed timely objections. Some of his objections had merit, but Riley's objections do not affect the underlying Recommendation to deny his petition for Writ of Habeas Corpus and dismiss with prejudice.

II. DISCUSSION

In ruling on a petition for a writ of habeas corpus under 28 U.S.C. § 2254, a federal court may only consider claims that the petitioner is being held in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). The court cannot consider the merits of a habeas corpus claim unless and until petitioner has exhausted all available state remedies. See 28 U.S.C. § 2254(b)(1)(A)⁸; Rose v. Lundy, 455 U.S. 509, 519 (1982); Picard v. Connor, 404 U.S. 270, 275 (1971); Toulson v. Beyer, 987 F.2d 984, 987 (3d Cir. 1993), aff'd. 30 F.3d 1488 (3d Cir. 1994); Brown v. Cuyler, 669 F.2d 155, 157 3d 1982).

The total exhaustion doctrine is rooted in our tradition of comity; the state must be given the "initial opportunity to pass upon and correct" alleged violations of petitioner's constitutional rights. Picard, 404 U.S. at 275 (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)); see also Tillett v. Freeman, 868 F.2d 106 (3d Cir. 1989). The exhaustion rule requires Riley to have fairly presented any claims he is asking the federal court to review at all levels of the state judicial system. See Anderson v. Harless, 459 U.S. 4 (1982); Gibson v. Scheidmantal, 805 F.2d 135 (3d Cir. 1986); Evans v. Ct. Com. Pl., 959 F.2d 1227 (3d Cir. 1992) (claim must have been presented to intermediate appellate court, as well as state's highest court).

Where a habeas petition has been referred to a magistrate judge for a Report and Recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. . . . [The Court] may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b).

A. Exhaustion of Challenges to Decisions of the Pennsylvania Board Of Probation and Parole

Riley objects to the finding in the R & R that "the only method by which a Pennsylvania inmate may challenge the decision of the Pennsylvania Board of Probation and Parole ("Board"), under state law, is a mandamus action in Commonwealth Court. See Rogers v. Pennsylvania Bd of Prob. & Parole, 724 A.2d 319, 323 n. 5 (Pa. 1999)." Riley argues that there is a right to take an appeal to the Commonwealth Court from a final decision by the Board revoking parole and that the proceeding does not have to be an action of mandamus. See Bronson v. Pa. Board of Probation & Parole, 421 A.2d 1021 (Pa. 1980) (action for revocation of parole may be in the nature of mandamus or a constitutionally guaranteed appeal from the action of an...