Opinion
C.A. NO. 02-7033.
June 24, 2003.
MEMORANDUM OPINION AND ORDER
John Jennings, an inmate in state custody, seeks a writ of habeas corpus against Robert Meyers (the warden of SCI Rockview), the District Attorney of Delaware County, Pennsylvania, the Attorney General of the State of Pennsylvania, and the Pennsylvania Board of Probation and Parole ("the Board"). For the reasons stated below, we deny Jennings' petition.
Jennings' state parole records show that since November 20, 1992, he has been serving a five to ten year sentence for a crime he committed in 1992, for which his latest possible release date was November 20, 2002. See Respondent's Exhibits 1, 2. Jennings was released on parole in March 2000, Respondent's Exhibit 4. Approximately one year later, he was arrested for driving under the influence (DUI). Respondent's Exhibit 6. After being released on bail, he was arrested again for DUI the very next day. Respondent's Exhibit 5. Just before his DUI arrests, Jennings had submitted a urine sample to his parole officer which tested positive for an illegal substance.Id. The Board charged Jennings with two parole violations, and sentenced him to twelve months "backtime" for technical parole violations. Respondent's Exhibit 8. Jennings was given two concurrent sentences of 23 months time served for his DUI convictions, with immediate parole eligibility. Respondent's Exhibit 11.
Although given parole on the DUI convictions, Jennings was transferred to the state prison system to resume serving his original sentence. Respondent's Exhibit 13. At that time, the Board calculated Jennings' backtime to be two years, eight months. Id. The Board recalculated Jennings' maximum sentence to include his backtime, and determined his latest possible release date to be June 1, 2004. Id. The Board denied Jennings' reparole on May 22, 2002, and ordered him to serve his unexpired, recalculated maximum sentence. Respondent's Exhibit 15.
Jennings asserts that the Board refused reparole based on standards which were amended in 1996, four years after he committed the crime for which he was incarcerated. He argues that using amended parole standards to review his case was an invalid, ex post facto application. Jennings also alleges that the Board miscalculated his backtime upon his return to prison, and did not give him due credit for the period he spent on parole between 2000 and 2001. Finally, Jennings contends that the Board had no authority to reset his release date later than the date originally identified as the conclusion of his maximum sentence.
We do not reach the merits of Jennings' petition. Before a prisoner may file in federal court for a writ of habeas corpus, he must exhaust all possible state remedies. 28 U.S.C.A. § 2254(c) (West 1994). Jennings does not allege that he has pursued State corrective process, but rather contends that available remedies would be futile. A prisoner may seek a writ of habeas corpus from a federal court without pursuing state relief if "(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C.A. § 2254(b) (West 1994 Supp. 2003). As Jennings unquestionably has state corrective procedures available to him, e.g., a state petition for habeas corpus, see 42 Pa.Cons.Stat.Ann. § 6503(b) (Purdon 2000), we may only grant him relief if this existing procedural avenue would be ineffective to protect his rights, or futile.
Jennings argues futility on two grounds. Plaintiff's Motion to Expedite at 2. First, he asserts the state corrective process is so slow that he could not possibly get relief before his allegedly correct release date, so as to render any effort to obtain such relief futile. Id. Second, he asserts without offering any specifics that the "actions of state authorities" have made state remedies unavailable to him. Id.
The case upon which Jennings relies to support his futility argument is inapposite. In Hankins v. Fulcomer, 941 F.2d 246 (3d Cir. 1991), the petitioner had filed a state court motion to withdraw his guilty plea, on factual grounds nearly identical to those involved in his federal petition for writ of habeas corpus. Id. at 251. The state court never decided that motion, believing it had been withdrawn. Id. at 252. The Third Circuit, reviewing the district court's dismissal of the petition for want of exhaustion, determined that the state court's delay in deciding Hankins' motion to withdraw his guilty plea "rendered state process ineffective to protect Hankins' rights." Id. at 253. Jennings, unlike Hankins, does not allege that he filed any motions or pleadings in state court which were inordinately delayed. Rather, he alleges that other prisoners' similar petitions have been unreasonably delayed, inferring it is likely that his would be also. Petitioner's Brief at 5. It is not sufficient for Jennings to make a futility argument based upon anecdotal evidence of the allegedly inordinate time it has taken for other inmates to exhaust available state processes. As Jennings has not availed himself of state processes, he cannot allege any inordinate delay in his own state claims. Therefore, he must exhaust all possible state remedies before filing a petition in federal court for a writ of habeas corpus. See 28 U.S.C.A. § 2254.
Finally, Jennings argues in a conclusory fashion that "state authorities' acts" have made state remedies unavailable to him. He offers no specific facts to support his assertion. To the extent that Jennings may be able to flesh out this allegation to state a valid ground to waive the exhaustion requirement, we will dismiss his habeas petition without prejudice and with leave to file an amended petition. For this court to reconsider this issue, Jennings must allege specific facts of his particular case that demonstrate how his asking the Parole Board to recalculate his max date, or filing a state habeas petition, would be futile.
Pursuant to Fed.R.Civ.P. 15, as incorporated by Rule 11 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254 (1994), Jennings may file for leave to amend his petition to show facts supporting his assertions. We remind Jennings that he must demonstrate inordinate delay in his own case, and that the delay must be substantial. See Story v. Kindt, 26 F.3d 402,403 (3d Cir. 1994) (delay of nine years in post-conviction collateral proceedings constitutes inordinate delay); Wojtczak v. Fulcomer, 800 F.2d 353, 356 (3d Cir. 1986) (delay of three and a half years in consideration of petition for appeal constitutes inordinate delay); Codispoti v. Howard, 589 F.2d 135, 142 (3d Cir. 1978) (delay of over eleven years in disposition of post-trial motion constitutes inordinate delay);United States ex rel. Geisler v. Walters, 510 F.2d 887, 893 (3d Cir. 1975) (delay of three and a half years in disposition of motion for new trial constitutes inordinate delay); United States ex rel. Senk v. Brierley, 471 F.2d 657, 660 (3d Cir. 1973) (delay of three and a half years in disposition of a PCHA petition constitutes inordinate delay). Moreover, the delay must be caused by factors beyond Jennings' control. See Schandelmeier v. Cunningham, 819 F.2d 52, 54 (3d Cir. 1986) (delays in petitioner's state motions were insufficient to support a federal petition for habeas corpus, because "proceedings [we]re available by which Schandelmeier could have brought his delay-based claim to the attention of the state courts").
For the reasons stated above, we deny Jennings' petition for a writ of habeas corpus.
ORDER
The petition of John Joseph Jennings for a writ of habeas corpus is DENIED without prejudice.
A certificate of appealability is DENIED.
IT IS SO ORDERED.