Priovolos v. PA Department of Corrections et al

Filing 5

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 7/18/17. (ma)

UNITED STATES DISTRICT COURT
FOR THEMIDDLE DISTRICT OF PENNSYLVANIA
ERNEST PRIOVOLOS,
Petitioner
v.
PA STATE ATTORNEY
GENERAL, et al.,
Respondents

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No. 1:17-CV-00073
(Judge Rambo)

MEMORANDUM
On January 12, 2017, the Court received and docketed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 22541 from pro se Petitioner Ernest
Priovolos. (Doc. No. 1.) By Order dated May 10, 2017, in accordance with United
States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414
(3d Cir. 2000), Petitioner was advised that he could (1) have the petition ruled on
as filed, that is, as a § 2254 petition for writ of habeas corpus and heard as such,
but lose his ability to file a second or successive petition, absent certification by the
court of appeals, or (2) withdraw his petition and file one all-inclusive § 2254
petition within the one-year statutory period prescribed by the Antiterrorism

Petitioner utilized a habeas form for § 2241 habeas petitions and has indicated that his petition
is filed pursuant to § 2241 rather than § 2254. (Doc. Nos. 1 and 4.) However, the Court notes
that a habeas corpus petition pursuant to 28 U.S.C. § 2254 is the proper mechanism for a state
prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S.
475, 498-99 (1973). However, Petitioner will not be required to submit an amendment, but
rather, the Court will liberally construe the petition as one filed pursuant to § 2254.
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Effective Death Penalty Act (“AEDPA”). (Doc. No. 3.) Petitioner did not return
the Notice of Election Form but, rather, filed a document entitled “request for a
hearing” (Doc. No. 4) wherein he indicated that his petition should be a § 2241
habeas petition, not a § 2254 habeas petition.2
The Petitioner names as Respondent the Pennsylvania Department of
Corrections and the Attorney General of Pennsylvania. However, the proper
respondent in a petition for a writ of habeas corpus is the state officer who has
official custody of the Petitioner. See Rule 2 of the Rules Governing Section 2254
Cases in the United States District Court and advisory committee notes (1976), 28
U.S.C. foll. § 2254; see also Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (“[T]he
proper respondent is the warden of the facility where the prisoner is being held, not
the Attorney General or some other remote supervisory official.”).
However, while Petitioner provides that his place of confinement is SCIRockview, Bellefonte, Pennsylvania (Doc. No. 1), he provides what appears to be a
residential mailing address where he requests the documents in this case be sent.
(Id.) A search by this Court of publicly available records confirms that Petitioner
has been released from custody of the Pennsylvania Department of Correction’s
(“DOC”).3
The Court has already addressed this issue supra.
See Pa. SAVIN Search Form (Priovolos, Ernest) (“out of custody” / “paroled”), at
https://www.vinelink.com (last accessed July 14, 2017); Pa. DOC’s Inmate Locator (Priovolos,
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The Court will now give preliminary consideration to the habeas petition
pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the U.S. District
Courts, 28 U.S.C. foll. § 2254. See Patton v. Fenton, 491 F.Supp. 156, 158-59
(M.D. Pa. 1979).
Discussion
A § 2254 habeas corpus petition may be brought by a state prisoner who
seeks to challenge either the fact or duration of his confinement in prison. See
Preiser v. Rodriguez, 411 U.S. 475, 486-87 (1973). Federal habeas corpus review
is available only “where the deprivation of rights is such that it necessarily impacts
the fact or length of detention.” Leamer v. Fauver, 288 F.3d 532, 540 (3d Cir.
2002). Where “a judgment in petitioner’s favor would not affect the fact or
duration of petitioner’s incarceration, habeas relief is unavailable.” Suggs v.
B.O.P., No. 8-3613, 2008 WL 2966740, at *4 (D.N.J. July 31, 2008).
In Custody
The United States Supreme Court has “interpreted the statutory language as
requiring that the habeas petitioner be ‘in custody’ under the conviction or
sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S.
488, 490–91 (1989); see also Spencer v. Kemna, 523 U.S. 1 (1998). Although the
Enrest) (no records) at http://www.cor.pa.gov/Inmates/Pages/InmateLocator.aspx#.WWfHz4TythE (last accessed July 14, 2017). See generally Fed. R. Evid. 201;
Llarraza v. Chuta, No. 1:15-CV-2406, 2017 WL 1246363, at *2 (M.D. Pa. Feb. 10, 2017) (taking
judicial notice of SAVIN and DOC Inmate Locator search results).
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“in custody” language does not require that a prisoner be physically confined in
order to challenge his sentence in habeas corpus, see e.g., Jones v.
Cunningham, 371 U.S. 236, (1963) (prisoner who is on parole is “in custody”), the
Supreme Court “ha[s] never held ... that a habeas petitioner may be ‘in custody’
under a conviction when the sentence imposed for that conviction has fully expired
at the time his petition is filed.” Maleng, 490 U.S. at 491; see also Drakes v.
INS, 330 F.3d 600 (3d Cir. 2003). Thus, “once the sentence imposed for a
conviction has completely expired, the collateral consequences of that conviction
are not themselves sufficient to render an individual ‘in custody’ for the purposes
of a habeas attack upon it.” Maleng, 490 U.S. at 492.
As the Supreme Court has noted in Daniels v. United States, 532 U.S. 374
(2001), habeas corpus and similar collateral remedies “are not available
indefinitely and without limitation.” Id. at 375. Once a state conviction “is no
longer open to direct or collateral attack in its own right because the defendant
failed to pursue those remedies (or because the defendant did so unsuccessfully)
the conviction may be regarded as conclusively valid.” Lackawanna County v.
Coss, 532 U.S. 394, 403 (2001); see also Maleng, 490 U.S. at 492 (federal habeas
corpus relief should not be extended “where a habeas petitioner suffers no present
restraint from a conviction.”).

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Petitioner’s pending action is set forth in four (4) sparsely worded
paragraphs. Based upon a careful review of Priovolos’ filing, it is unclear as to
whether he is presently serving a sentence imposed upon him or whether he suffers
any restraint from his conviction. Indeed, his Petition and exhibits attached thereto
indicate the potential that his sentence and parole have now expired. Accordingly,
this Court is unable to undertake an informed determination as to Petitioner’s
status and Petitioner is directed to address the in custody/collateral consequence
issue. Further action will not be taken by this Court until this issue is initially
addressed by Petitioner.
Exhaustion
Habeas corpus relief cannot be granted unless all available state remedies
have been exhausted, or there is an absence of available state corrective process, or
circumstances exist that render such process ineffective to protect the rights of the
applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded
on principles of comity in order to ensure that state courts have the initial
opportunity to review federal constitutional challenges to state convictions. See
Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir. 2000). A state prisoner exhausts state
remedies by giving the “state courts one full opportunity to resolve any
constitutional issues by invoke one complete round of the State’s established

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appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999).
Fair presentation also requires the petitioner to raise the claim in a procedural
context in which the state courts can consider it on the merits. Id.
It is not necessary for a petitioner seeking federal habeas relief to present his
federal claims to state courts both on direct appeal and in a PCRA proceedings.
Swanger v. Zimmerman, 750 F.2d 291, 295 (3d Cir. 1984). However, a petitioner
is not deemed to have exhausted the remedies available to him if he has a right
under the 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 (1989). The petitioner
bears the burden of demonstrating that he has satisfied the exhaustion requirement.
Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000).
In the instant matter, Petitioner fails to provide any information as to
whether he has either filed a direct appeal or pursued collateral proceedings in state
court before filing the instant habeas petition. Moreover, because of Priovolos’
sparse petition, it is unclear to this Court if the alleged detainer Petitioner
complains about was in response to a parole violation. If, in fact, it was for a
parole violation, Petitioner has not demonstrated that he has properly exhausted
this claim.

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To properly exhaust a claim involving a determination by the Parole Board,
the petitioner must first seek administrative review with the Parole Board. See 37
Pa.Code § 73.1(a). Once the Parole Board has rendered a final decision, the
petitioner must seek review in the Commonwealth Court. See 42 Pa.C.S.A. §
763(a). Unlike appeals and collateral review of convictions, a petitioner
challenging the Commonwealth Court's denial of parole relief must seek review in
the Pennsylvania Supreme Court in order to satisfy the exhaustion
requirement. Pagan v. Pa. Bd. of Prob. and Parole, No. 08-150, 2009 WL 210488,
*3 (E.D. Pa. 2009); see also Brown v. Pa. Bd. of Prob. and Parole, No. 09-2486,
2010 WL 2991166 (E.D. Pa. 2010). If the petitioner fails to seek review from the
Supreme Court of Pennsylvania, then the state claim is unexhausted. See Williams
v. Wynder, 232 F. App’x. 177, 181 (3d Cir. 2007). “[T]he Superior Court
maintains exclusive jurisdiction over appeals from Court of Common Pleas parole
orders, and the Commonwealth Court has exclusive jurisdiction over
administrative parole orders.” Commonwealth v. McDermott, 547 A.2d 1236,
1240 (Pa. Super. 1988); 42 Pa.C.S.A. §§ 742, 762(a)(1). Further, “attempts to
circumvent the Commonwealth Court's exclusive jurisdiction over administrative
parole matters via Post Conviction Hearing Act and habeas corpus petitions have

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been rejected.” Id. citing Commonwealth v. LeGrande, 567 A.2d 693, 695 (Pa.
Super. 1989).
Accordingly, from the face of the petition, it appears that Petitioner’s claim
is unexhausted. Petitioner is directed to also file a response addressing whether his
claim has been properly exhausted as set forth above.
Conclusion
In accordance with the above, within twenty (20) days of the date of this
Memorandum’s accompanying Order, Petitioner shall file a response addressing
the issues of whether he is in custody or suffers a present restraint from a
conviction. Petitioner shall also address whether his claim has been properly
exhausted. An appropriate Order follows.

s/Sylvia H. Rambo
SYLVIA H. RAMBO
United States District Judge
Dated: July 18, 2017

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UNITED STATES DISTRICT COURT
FOR THEMIDDLE DISTRICT OF PENNSYLVANIA
ERNEST PRIOVOLOS,
Petitioner
v.
PA STATE ATTORNEY
GENERAL, et al.,
Respondents

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No. 1:17-CV-00073
(Judge Rambo)

ORDER
AND NOW, this 18th day of July, 2017, in accordance with the
accompanying Memorandum, IT IS ORDERED THAT:
1. Within twenty (20) days of the date of this Order, Petitioner shall file a
response addressing the issues of whether he is in custody or suffers a
present restraint from a conviction and whether his claim has been
properly exhausted;
2. No further action shall be taken by this Court with respect to this matter
pending resolution of the above issues; and
3. Failure of Petitioner to respond to this Order may result in dismissal of
his action.
s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge