IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RUSSELL WINSTON, )

)

Petitioner, )

)

v. ) Civil Action No. 04-68 Erie

) JUDGE SEAN McLAUGHLIN

COMMONWEALTH OF PENNSYLVANIA ) MAGISTRATE JUDGE BAXTER

BOARD OF PROBATION AND PAROLE, )

)

Respondent. )

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is recommended that the Petition for Writ of Habeas Corpus be dismissed, that a

certificate of appealability be denied, and that petitioner's motion for summary judgment (Docket

#23) be denied.

II. REPORT

Russell Winston is a state prisoner who asserts that the Pennsylvania Board of

Probation and Parole failed to give him credit against his sentence for time served while he was

in the custody of New Jersey authorities. This, he asserts, was improper as he was released from

Pennsylvania custody for the express purpose of serving a "concurrent" sentence in New Jersey. 

Winston is currently serving his Pennsylvania sentence, which would be shortened significantly

if he were given the credit he believes he deserves. The Commonwealth has responded to the

petition (Docket #18) and it is ripe for disposition.

A. Exhaustion and procedural default.

The Commonwealth first asserts that petitioner has failed to exhaust state court

remedies, or, in the alternative, that Winston has procedurally defaulted his claim in the state

courts. Winston presented his claim concerning computation of parole time to the

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Commonwealth Court of Pennsylvania and that court denied relief on September 16, 2003

(Exhibit attached to Docket #18). Winston did not, however, seek discretionary review in the

Supreme Court of Pennsylvania as permitted by state law. 42 Pa.C.S.A. §724(a); Pa.R.A.P.

1112(b). In the Commonwealth's view, this is a procedural misstep which requires dismissal

either on the basis of a failure to exhaust available state court remedies, or due to a state court

procedural default. 

In order to comply with the exhaustion requirement, a federal habeas petition must

normally present his claim to the state's highest court. Evans v. Court of Common Pleas, 959

F.2d 1227, 1230 (3d Cir.1992) (emphasizing that, to satisfy the exhaustion requirement, "[a]

claim must be presented not only to the trial court but also to the state's intermediate court as well

as its supreme court"). That has changed in some respects for habeas petitions filed by

Pennsylvania prisoners with the advent of Rule of Judicial Administration 218, adopted by the

Pennsylvania Supreme Court on May 9, 2000:

[A] litigant shall not be required to petition for rehearing or allowance of

appeal following an adverse decision by the Superior Court in order to be

deemed to have exhausted all available state remedies respecting a claim

of error. When a claim has been presented to the Superior Court, or to the

Supreme Court of Pennsylvania, and relief has been denied in a final

order, the litigant shall be deemed to have exhausted all available state

remedies for purposes of federal habeas corpus relief.

"In practical effect, Order 218 serves to excuse habeas petitioners from the onus of having to

seek discretionary review in the Pennsylvania Supreme Court in order to satisfy the exhaustion

requirements of 28 U.S.C. § 2254(b) and (c))." Bowen v. Blaine, 243 F.Supp.2d 296, 303

(E.D.Pa. 2003).

However, by its own terms Order 218 applies to "appeals from criminal

convictions or post-conviction relief matters" and is specifically limited to appeals from the

Pennsylvania Superior Court. See Order No. 218, Jud. Admin. Doc. No. 1, captioned: "In re

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Exhaustion of State Remedies in Criminal and Post-Conviction Relief Cases." Here, by contrast,

Winston is seeking review of an administrative decision by the Board of Probation and Parole,

and Winston's right to file a discretionary appeal was from an order of the Commonwealth Court

of Pennsylvania. Neither administrative appeals nor appeals from Commonwealth Court are

mentioned in Order 218. Thus, Order 218 has no application here, and Winston failed to seek the

required discretionary review in the Supreme Court of Pennsylvania for exhaustion. 

This, however, does not necessarily mean that Winston's claim is barred by a

failure to exhaust state court remedies. "If a claim has not been fairly presented to the state

courts but state law clearly forecloses review, see Lovasz v. Vaughn, 134 F.3d 146, 148 (3d

Cir.1998), 28 U.S.C. § 2254(b)(1)(B) (1988) (amended 1996), exhaustion is excused, see, e.g.,

Lambert [v. Blackwell], 134 F.3d [506] at 513, 517-19 [(3d Cir. 1997)]; Doctor v. Walters, 96

F.3d 675, 681 (3d Cir.1996), but the doctrine of procedural default may come into play." 

Carpenter v. Vaughn, 296 F.3d 138, 146 (3d Cir. 2002). Thus, even though Winston has failed to

comply with the exhaustion requirement in this case, exhaustion may be excused due to the lack

of any further means by which Winston may now obtain state court review of his claims.

Winston's failure to seek discretionary review in the Supreme Court of

Pennsylvania is, however, a state court procedural default which now bars federal habeas review

absent a showing of cause and prejudice. See Beaty v. Patton, 700 F.2d 110, 111-12 (3d

Cir.1983)(finding procedural default for failure to file a petition for allocatur in the Pennsylvania

Supreme Court); Coleman v. Thompson, 501 U.S. 722, 750 (1991). A state's procedural rules

are entitled to deference by federal courts, and violation of a state procedural rule may constitute

an independent and adequate state ground for denial of federal review of habeas claims. 

Coleman v. Thompson, 501 U.S. at 750. Violations of a state's procedural rules may constitute

an independent and adequate state ground sufficient to invoke the procedural default doctrine

even where no state court has concluded that a petitioner is procedurally barred from raising his

claims. Glass v. Vaughn, 65 F.3d 13, 15 (3d Cir. 1995), cert. denied, 116 S.Ct. 1027 (1996);

Carter v. Vaughn, 62 F.2d at 595.

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Federal habeas review is not available to a petitioner whose constitutional claims

have not been addressed on the merits due to procedural default unless such petitioner can

demonstrate: 1) cause for the default and actual prejudice as a result of the alleged violation of

federal law; or 2) failure to consider the claims will result in a fundamental miscarriage of

justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000).

The cause standard is satisfied when a petitioner demonstrates that some objective

factor external to the defense impeded his efforts to raise the claim in state court. McCleskey v.

Zant, 499 U.S. 467, 493 (1991); Murray v. Carrier, 477 U.S. 478, 488 (1986). Winston does not

assert cause for his failure to seek allowance of appeal from Commonwealth Court's order. 

Accordingly, the Court need not consider the question of actual prejudice. See Murray v. Carrier,

477 U.S. 527, 533 (1986).

Finally, although Winston has not demonstrated the necessary "cause," this court

may still review his claims if he can show that a "fundamental miscarriage of justice would result

from a failure to entertain the claim." McCleskey, 499 U.S. at 495. The court may, in its

discretion, correct a fundamental miscarriage of justice if it appears that a "constitutional

violation probably resulted in the conviction of one who is actually innocent." Murray, 477 U.S.

at 496. See also Coleman, 501 U.S. at 748; McCleskey, 499 U.S. at 502. Of course, in this

instance, the issue is not Winston's guilt of an underlying crime, but is, instead, whether the

computation of the backtime he owes to the Pennsylvania authorities was correct. The Court is,

therefore, not convinced that the miscarriage of justice exception has any application in this case

at all. Even if it did, however, an allegation that a state has failed to properly apply its own law

in computing parole backtime simply does not rise to constitutional magnitude, and would not

support a finding that a fundamental miscarriage of justice has occurred. Thus, Winston's claim

is barred by a state court procedural default, and no exception to that doctrine applies in this case.

B. Merits.

In any event, the claim raised lacks merit. "[T]here is no constitutional or inherent

right of a convicted person to be conditionally released before the expiration of a valid sentence."

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Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 60

L.Ed.2d 668 (1979). However, the Third Circuit has held that "even if a state statute does not

give rise to a liberty interest in parole release under Greenholtz, once a state institutes a parole

system all prisoners have a liberty interest flowing directly from the due process clause in not

being denied parole for arbitrary or constitutionally impermissible reasons." Block v. Potter, 631

F.2d 233, 236 (3d Cir.1980). In this case, Winston asserts that the "impermissible reason" for

denying him immediate parole upon his return from New Jersey custody is that Board erred in

applying Pennsylvania law by failing to give him credit for time served in New Jersey. The state

court's analysis of this issue is fatal to petitioner's claim:

As our Supreme Court stated in Rivenbark v. Pennsylvania Board

of Probation and Parole, 509 Pa. 248, 252, 501 A.2d 1110, 1112 (1985):

"The granting and rescinding of parole are purely administrative

functions." Moreover, "[t]he availability of parole is not a constitutional

guarantee." Id., at 253, 501 A.2d at 1113. Instead, "[p]arole is a method of

rehabilitation enacted as the public policy of the Commonwealth pursuant

to the General Assembly's exclusive power to determine the penological

system of the Commonwealth." Id. At 253-4, 501 A.2d at 1113.

Pursuant to Section 21.1(a) of what is popularly called the "Parole

Act," Act of August 6, 1941, P.L. 861, as amended, 61 P.S. §331.21a(a)

[footnote omitted], Winston was required to serve his new New Jersey

sentence before he served his backtime. See, e.g., Vance v. Pennsylvania

Bd. of Probation and Parole, 741 A.2d 838, 840 n. 2 (Pa.Cmwlth.

1999)(stating "Section 21.1(a) of the Parole Act provides that backtime is

to be served prior to the service of a new sentence in a state correctional

institution, but is to follow the service of a new sentence outside of the

jurisdiction of the Department of Corrections"). Although the Board

released Winston to the New Jersey Authorities to begin his three-year

sentence, the Board was merely complying with the mandate of Section

21.1(a) and had every right to order Winston to serve his parole violation

backtime after New Jersey authorities relinquished him on December 2,

2002. Contrary to Winston's assertion, the fact that the Board did so does

not in any way violate principles of fundamental fairness or amount to an

abuse of discretion.

(Exhibit to Docket #18 at 4-5)(emphasis supplied).

Pennsylvania law makes clear that the Board is vested with authority to revoke

parole and to require a convicted parole violator to serve any or all of the remaining backtime

owed on a sentence. 61 Penn. Stat. § 331.21a(a). Moreover, the Parole Act prohibits the Board

from granting a convicted parole violator any credit on his original sentence for the time spent at

liberty on parole. Id. See Shaw v. Pennsylvania Board of Probation and Parole, 671 A.2d 290,

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292 (Pa. Commw. 1996); Krantz v. Pennsylvania Bd. of Probation and Parole, 86 Pa. Commw.

38, 42, 483 A.2d 1044, 1047 (1984). And, as the state court held in this case, the Parole Act

directs that service of backtime is to occur after the service of a new sentence in another

jurisdiction. Vance, supra. It follows, then, that the Board did not violate state law in computing

Winston's backtime as it did. Therefore, the Board has not calculated petitioner's backtime in

such a fashion as to unconstitutionally increase his confinement beyond the period originally

imposed, and this petition should be denied.

C. Certificate of Appealability.

A certificate of appealability may be granted to a habeas petitioner who makes a

"substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c). No such

showing has been made in this case, and the certificate should be denied.

D. Petitioner's motion for summary judgment (Docket #23).

Winston has moved for summary judgment on the basis of the same argument he

makes in his petition. While it is not necessarily improper for a habeas petitioner to file a motion

for summary judgment, the motion is superfluous since the court is prepared to rule on the

petition and the response. See Ukawabutu v. Morton, 997 F.Supp. 605, 608 (D.N.J.

1998)(motion to dismiss may be permitted in habeas proceeding); Atkins v. United States, 1990

WL 126196, *3 (D.N.J. Aug.27, 1990) ("Given the nature of a habeas corpus petition, motions

for summary judgment are unnecessary because petitions may be decided immediately by the

court following submission of the pleadings, provided no material issues of fact exists."). 

Further, the motion would be denied in any event since, as illustrated above, Winston is not

entitled to relief. Thus, the motion for summary judgment (Docket #23) should be denied.

CONCLUSION

Wherefore, on the basis of the foregoing, it is respectfully recommended that the

Petition for Writ of Habeas Corpus be dismissed and that a certificate of appealability be denied. 

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It is further recommended that petitioner's motion for summary judgment (Docket #23) be

denied.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and

Rule 72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the

date of service to file written objections to this Report and Recommendation. Any party

opposing the objections shall have seven (7) days from the date of service of objections to

respond thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

 

 /s/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: July 22, 2005

cc: The Honorable Sean J. McLaughlin 

United States District Judge

Russell Winston, CT-3071

SCI Albion

10745 Route 18

Albion, PA 16475-0002

Kemal A. Mericli, Esquire

Deputy Attorney General

Office of Attorney General

6

th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh, PA 15219

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