1

A state prisoner must rely on § 2254 and not § 2241 when challenging

the execution of his sentence. Coady v. Vaughn, 251 F.3d 480, 485-86 (3d Cir.

2001). 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROGER EDWARD JEROME BIEROS, :

Petitioner : CIVIL ACTION

:

VS. :

:

SUPERINTENDENT KENNETH KYLER :

(SCI at Huntingdon), :

AND :

THE DISTRICT ATTORNEY OF :

THE COUNTY OF PHILADELPHIA, :

AND :

THE ATTORNEY GENERAL OF :

THE STATE OF PENNSYLVANIA, :

Respondents : NO. 02-4453

REPORT AND RECOMMENDATION

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Currently before the Court is a Petition for Writ of

Habeas Corpus filed pursuant to 28 U.S.C. ' 2254,1 by a prisoner

incarcerated in the State Correctional Institution at Huntingdon,

Pennsylvania. For the reasons that follow, it is recommended that

the Petition be denied and dismissed without prejudice.

I. PROCEDURAL HISTORY

On April 14, 2000, the Pennsylvania Board of Probation

and Parole (APBPP@) rendered a decision to recommit petitioner to

a state correctional institution for eighteen months pursuant to

various technical parole violations including possession of

Case 2:02-cv-04453-JCJ Document 13 Filed 10/24/2002 Page 1 of 5
2

firearms or other weapons and failure to refrain from assaultive

behavior. Two years later, on April 26, 2002, the PBPP ordered

petitioner, now deemed a convicted parole violator, to serve the

remainder of his sentence for attempted murder, aggravated assault,

and possessing instruments of crime. 

Petitioner promptly filed an administrative appeal with

the PBPP on May 10, 2002. Upon consideration of this appeal, the

ultimately affirmed its decision. Administrative appeal & 2. It

explained petitioner=s original maximum sentence was to expire on

February 16, 2002. Id. Petitioner, however, was paroled on May

25, 1995, leaving six years, 8 months, and twenty-one days of his

original sentence. Id. As petitioner was held in custody by

authority of a Board warrant from November 8, 1999 to April 19,

2000 and June 13, 2001 to July 24, 2001, this time in custody

counted toward petitioner=s sentence, thereby reducing the unexpired

time to six years, one month, and twenty-nine days. Id.

Petitioner was subsequently sentenced for his new convictions on

January 29, 2002. Taking all of these factors into consideration,

the PBPP determined that this date, plus the time remaining on

petitioner=s sentence, moved his new maximum expiration of sentence

date to March 28, 2002. Id. 

After denial of his administrative appeal, petitioner

initiated court proceedings on June 18, 2002 for review of the

PBPP=s decision to revoke his parole. The Pennsylvania Commonwealth

Case 2:02-cv-04453-JCJ Document 13 Filed 10/24/2002 Page 2 of 5
3

Court appointed petitioner counsel and ordered that Petitioner=s

brief regarding this appeal be filed to the Pennsylvania

Commonwealth Court by October 16, 2002.

On June 24, 2002, petitioner filed the instant pro se

Petition for Writ of Habeas Corpus, containing various the

following ascertainable claims:

1. Parole Board error in recommitting petitioner and

recalculating his sentence, and

2. Denial of post-conviction counsel.

We now turn to a discussion of the issues before us.

II. FAILURE TO EXHAUST STATE COURT REMEDIES

Before a federal court may grant habeas relief to a state

prisoner, the prisoner must exhaust his remedies in state court.

O=Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S. Ct. 1728, 1731

(1999). A petitioner is not deemed to have exhausted the remedies

available to him if he has a right under 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, 109 S. Ct. 1056, 1059, reh=g

denied, 490 U.S. 1076, 109 S. Ct. 2091 (1989). While exhaustion

does not require state prisoners to Ainvoke extraordinary remedies,@

they must give the Astate courts one full opportunity to resolve

any constitutional issues by invoking one complete round of the

State=s established appellate review process.@ O=Sullivan, 526 U.S.

at 844. A habeas petitioner retains the burden of showing that all

of the claims alleged have been Afairly presented@ to the state

Case 2:02-cv-04453-JCJ Document 13 Filed 10/24/2002 Page 3 of 5
4

courts. Consequently, the claims brought in federal court must be

the Asubstantial equivalent@ of those presented to the state courts.

Santana v. Fenton, 685 F.2d 71, 73-74 (3d Cir. 1982), cert. denied,

459 U.S. 1115, 103 S. Ct. 750 (1983). Habeas actions challenging

revocation of parole proceed as any other habeas action -- the

available state remedies must be exhausted before the federal court

can address the petition. Coady v. Vaughn, 251 F.3d 480, 485 (3d

Cir. 2001); Faulkner v. Pennsylvania Dept. of Corrections, Civ. A.

No. 99-3228, 2002 WL 1901580, *2 (E.D. Pa. 2002). In the case of

an unexhausted petition, the federal courts should dismiss without

prejudice, otherwise, they risk depriving the state courts of the

Aopportunity to correct their own errors, if any.@ Toulson v.

Beyer, 987 F.2d 984, 989 (3d Cir. 1983). 

Respondent, in the case at bar, argues that petitioner

has not yet exhausted his state court remedies. As respondent

highlights, petitioner currently has an appeal of his probation

revocation pending before the Pennsylvania Commonwealth Court. The

issues that petitioner presents on appeal to the state court

strongly resemble those in his habeas action. If this Court were

to deal with petitioner=s habeas claims presently, we would infringe

upon the state court=s entitlement to have the first opportunity to

address petitioner=s issues. Thus, with an action pending before

state court, petitioner has yet to fully exhaust his state

remedies, branding his habeas action unexhausted for purposes of

Case 2:02-cv-04453-JCJ Document 13 Filed 10/24/2002 Page 4 of 5
5

federal review. As such, we must dismiss the petition. 

As a final note, this dismissal is without prejudice, and

does not preclude petitioner from returning to this Court again to

seek review of his claims. Rather, it merely mandates that before

he does so, he exhaust all of his habeas claims in the state

courts.

Therefore I make the following:

RECOMMENDATION

AND NOW, this day of October, 2002, IT IS

RESPECTFULLY RECOMMENDED that the Petition for Writ of Habeas

Corpus be DENIED AND DISMISSED WITHOUT PREJUDICE for failure to

exhaust state court remedies. There is no probable cause to issue

a certificate of appealability.

 

CHARLES B. SMITH

UNITED STATES MAGISTRATE JUDGE

Case 2:02-cv-04453-JCJ Document 13 Filed 10/24/2002 Page 5 of 5