Brooke v. Castronovo et al
Filing
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MEMORANDUM (eo, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ALBERT E. BROOKE,
Petitioner
v.
WARDEN, CARBON COUNTY
CORRECTIONAL FACILITY1,
Respondent
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CIVIL NOS. 1:11-CV-0463
1:11-CV-0472
Hon. John E. Jones III
MEMORANDUM
April 13, 2011
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On March 11, 2011, Petitioner Albert E. Brooke (“Petitioner” or “Brooke”),
who presently is confined at the Carbon County Correctional Facility in
Nesquehoning, Pennsylvania, initiated the action referenced above at Civil No. 1:11CV-0463 by filing a Petition for Writ of Habeas Corpus under the provisions of 28
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Brooke names the SCI Coal Township Superintendent as Respondent in both of the abovereferenced actions. Brooke is confined at the Carbon County Correctional Facility in Nesquehoning,
Pennsylvania, and therefore, the Warden of that institution is the proper respondent in this case. See
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“in habeas challenges to present physical
confinement . . . the default rule is that the proper respondent is the warden of the facility where the
prisoner is being held.”).
U.S.C. § 2254. On March 14, 2011, a nearly identical Petition submitted by Brooke
was docketed at Civil No. 1:11-CV-0472. The second Petition differs from the first
only in that Brooke slightly alters his statement of supporting facts as to grounds one
and three. Because the Petitions are substantively the same, the consolidation of the
Petitions into one action would be appropriate. However, upon screening the
Petitions, it is apparent that Brooke has failed to exhaust state court remedies, and
therefore, as more fully explained below, we shall grant his Motions requesting leave
to proceed in forma pauperis in both actions for the sole purpose of filing the
Petitions, and the Petitions will be dismissed.
In his Petition2, which was prepared on a form petition for use by individuals in
state custody to challenge confinement under the provisions of 28 U.S.C. § 2254,
Brooke answers “not applicable” to the questions asking him to provide information
relating to the conviction he is challenging, his appeal from his conviction, and any
collateral review he sought of his judgment of sentence. His first ground for relief in
this Court is that he never has been charged with anything, and instead has been
thrown in the hole without having been arraigned or afforded the opportunity to post
bail. (See Civil No. 1:11-CV-0463, Doc. 1 at 5; Civil No. 1:11-CV-0472, Doc. 1 at 5.)
2
Because Brooke’s Petitions are substantively the same, for ease of reference, we shall refer
to one “Petition” throughout this Memorandum.
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Brooke second ground essentially is a re-statement of his first ground in that he states
“no arrest, no arraignment” and again complains that he never appeared before a
magistrate to set bail and was instead thrown in the county jail in the R.H.U.
[Restricted Housing Unit] to cover-up that he is there. (See Civil No. 1:11-CV-0463,
Doc. 1 at 6; See Civil No. 1:11-CV-0472, Doc. 1 at 6.) Brooke’s states his third
ground as “personal injury,” and refers to beating, hitting, and throwing him around
and states that his left leg is all black and blue. (See Civil No. 1:11-CV-0463, Doc. 1
at 8; See Civil No. 1:11-CV-0472, Doc. 1 at 8.) Brooke’s request for relief is mostly
illegible in both Petitions, but it is possible to make out that he is requesting his
release from jail, the award of $10,000 per day, and expungement of his record. (See
Civil No. 1:11-CV-0463, Doc. 1 at 14; See Civil No. 1:11-CV-0472, Doc. 1 at 13.)
Independent research by this Court reveals the following additional relevant
background:
In disposing of Brooke’s pro se petition for post-conviction collateral relief, the
Court of Common Pleas of Carbon County, Pennsylvania, summarized the
background with respect to Brooke’s entry into a negotiated plea agreement and
sentencing as follows:
On August 11, 2004, Albert Edward Brooke (defendant) pled nolo
contendere to one count of aggravated indecent assault [footnote omitted]
(F2), two counts of corruption of minors [footnote omitted] (M1), and
two counts of endangering the welfare of a child [footnote omitted] (M1),
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in the case docketed to no. 128 CR 2003 for incidents involving his
stepdaughter when she was 5 and 6 years old; defendant also pled nolo
contendere to one count of corruption of minors (M1) and one count of
endangering the welfare of a child (M1), in the case docketed to no. 129
CR 2003, for incidents involving his 4-year-old stepson. Defendant's
pleas were entered pursuant to a negotiated plea agreement in which the
majority of the charges filed were to be nolle prossed, several consisting
of felonies of the first degree. [footnote omitted.] Under this agreement,
defendant was to receive an aggregate sentence of four to eight years'
imprisonment in a state correctional facility, followed by 20 years'
probation. The plea agreement was accepted by this court and, in
accordance with the agreement, defendant was sentenced on the same
date. [footnote omitted.]
Commonwealth v. Brooke, 7 Pa. D. & C. 5th 129, 2008 WL 6053237 (Pa. Com. Pl.
2008).
The criminal docket in Brooke’s case in the Court of Common Pleas of Carbon
County at Docket No. CP-13-CR-0000128-2003 shows the following recent
developments relating to Brooke’s present confinement in the Carbon County
Correctional Facility:
On February 15, 2011, the Carbon County Probation Department filed a Motion
to Revoke Special Probation. (See Commonwealth of Pennsylvania v. Albert Edward
Brooke, CP-13-CR-0000128-2003, Page 88.)3 By Order dated February 16, 2011, the
Court of Common Pleas of Carbon County granted a motion for an arrest warrant for
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See Pennsylvania’s Unified Judicial System Webportal, Common Pleas Courts Docket
Sheets, available at http://ujsportal.pacourts.us/DocketSheets/CP.aspx
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revocation of special probation. (See id.) The arrest warrant was issued and returned
on February 17, 2011. (See id., Page 89.) Upon motion of the Carbon County
Probation Department, a preliminary hearing scheduled on February 18, 2011 was
continued to March 4, 2011. (See id.) By Order dated March 2, 2011, upon entry of a
stipulation whereby Brooke waived his right to a preliminary revocation (Gagnon I)
hearing, the hearing that had been scheduled for March 4, 2011 was waived, and a
hearing on the Motion to Revoke Special Probation was scheduled for March 31,
2011. (See id., Page 90.) On March 4, 2011, the Court granted a motion for the
appointment of conflict counsel, and conflict counsel was appointed to represent
Brooke. (See id., Page 91.) The March 31 hearing subsequently was re-scheduled,
and, as of the date of this Memorandum, the docket reflects that it is scheduled for
April 25, 2011 at 1:15 PM, and that counsel for Brooke was served with notice of the
hearing by First Class mail. (See id., Page 92.)
DISCUSSION
As a general rule, a state prisoner must exhaust available state court remedies
before seeking habeas relief in federal court. 28 U.S.C. §§ 2254(b), (c); Rose v.
Lundy, 455 U.S. 509, 515-20 (1982); Toulson v. Beyer, 987 F.2d 984, 986 (3d Cir.
1993); Gibson v. Scheidemantel, 805 F.2d 135, 138 (3d Cir. 1986). "Unless it would
be patently futile to do so [state prisoners] must seek relief in state court before filing
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a federal habeas petition . . . .” Santana v. Fenton, 685 F.2d 71, 77 (3d Cir. 1982).4
The exhaustion requirement “is not a mere formality. It serves the interests of comity
between the federal and state systems by allowing the state an initial opportunity to
determine and correct any violations of a prisoner's federal rights.” Gibson, 805 F.2d
at 138. A habeas corpus petitioner bears the burden of demonstrating that he has
satisfied the exhaustion requirement. Lines v. Larkins, 208 F.3d 153, 159 (3d Cir.
2000)(citing Lambert v. Blackwell, 134 F.3d 506, 513 (3d. Cir. 1997)).
In the case at hand, it is apparent that Brooke has not exhausted his state court
remedies with respect to his first two grounds in which he challenges his confinement
pending a hearing on the Carbon County Probation Department’s motion to revoke his
special probation. Brooke seeks relief on the basis that he allegedly has been thrown
in jail without any charges having been filed and without the opportunity to be heard
or to post bail. However, it is evident from the Carbon County criminal docket that
Brooke chose to waive his right to the preliminary revocation hearing that is required
under the provisions of Gagnon v. Scarpelli, 411 U.S. 778 (1973). To the extent that
Brooke subsequently changed his mind about waiving his right to that preliminary
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Exceptions to the exhaustion requirement are made when: (1) the state corrective process is
so deficient as to render any effort to obtain relief futile, 28 U.S.C. § 2254(b); (2) acts of state
officials have, in effect, made state remedies unavailable to the petitioner, Mayberry v. Petsock, 821
F.2d 179, 184 (3d Cir. 1987); or (3) "inordinate delay" in state proceedings has rendered state
remedies ineffective. Story v. Kindt, 26 F.3d 402, 405 (3d Cir. 1994); Schandelmeier v.
Cunningham, 819 F.2d 52, 55 (3d Cir. 1986).
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hearing, he would be required to seek relief through his counsel in state court before
filing a petition with this Court challenging his confinement.
While federal courts may deviate from the exhaustion requirement and
intervene in highly exceptional circumstances, such an exception would be justified
only if a petitioner lacked any real opportunity to obtain redress in the state court, or if
the corrective process was so clearly deficient as to render futile any effort to obtain
relief. See Duckworth v. Serrano, 454 U.S. 1 (1981). Brooke cannot meet these
stringent requirements to obtain premature federal review of the legality of his
confinement. In particular, we observe that Brooke still has state remedies available
to him, and specifically, will have the opportunity to be heard at the hearing on the
motion to revoke his special probation scheduled on April 25, 2011. Moreover, there
is no indication that an inordinate delay has or will occur inasmuch as, in accordance
with 37 Pa. Code § 71.2, a preliminary revocation hearing was scheduled within
fourteen (14) days of Brooke’s arrest on February 17, 2011, and the hearing on the
motion to revoke special probation has been scheduled for April 25, 2011, which is
within 120 days of the date that the preliminary hearing had been scheduled. See 37
Pa. Code § 71.2 (3), (10).5 Finally, Brooke neither has alleged nor shown any
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37 Pa. Code § 71.2, entitled Procedure for Violation of Parole Conditions, contains the
following relevant provisions: (3) The preliminary hearing shall be held within 14 days of the
detention of the parolee on the Board warrant, and (10) If a violation hearing is scheduled, it shall
be held not later than 120 days after the preliminary hearing.
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deficiency or irregularity in the state corrective process or other justification sufficient
to warrant exemption from the exhaustion rule. Accordingly, the policy behind
exhaustion would be best served by dismissing the instant Petitions, without prejudice
to Brooke’s right to re-file, if necessary, after having fully exhausted his state court
remedies.
With respect to Brooke’s third ground where he seeks monetary damages for
physical injuries he allegedly has suffered while confined at the Carbon County
Correctional Facility, this claim is not properly asserted in a petition for writ of habeas
corpus. The purpose of a petition for writ of habeas corpus is to allow a person in
custody to challenge either the fact or duration of confinement. Preiser v. Rodriguez,
411 U.S. 475, 484 (1973); Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir. 2002). A
claim seeking relief for injuries allegedly suffered while in custody does not challenge
the fact or duration of confinement, but instead challenges conditions of confinement.
Therefore, to the extent that Brooke seeks relief based upon his claim that he has
suffered physical injuries, he would be required to pursue it in a properly filed civil
rights action.
For the foregoing reasons, Brooke’s Petitions will be dismissed without
prejudice for failure to exhaust state court remedies, and his cases will be closed. An
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appropriate Order shall issue on today’s date.
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