Cusatis v. Pa. Bd. of Prob. & Parole, Civil No. 1:12-CV-791
| Decision Date | 08 August 2012 |
| Docket Number | Civil No. 1:12-CV-791 |
| Parties | NICHOLAS ANTHONY CUSATIS, Petitioner v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent |
| Court | U.S. District Court — Middle District of Pennsylvania |
(Judge Caldwell)
(Magistrate Judge Carlson)
The petitioner in this case, Nicholas Cusatis, is a state parolee, a criminal recidivist, a former fugitive and a state parole violator. Cusatis, who is proceeding pro se, has filed a petition for writ of habeas corpus which contends that the Parole Board's decision recalculating his sentence following a series of admitted parole violations violates his constitutional rights. That Parole Board action, which Cusatis attacks in this petition, is specifically authorized by state law, which expressly provides that parolees who violate the terms of their parole forfeit credit for the time served on parole as a penalty for their wrongdoing.
For the reasons set forth below, it is recommended that this petition be denied, since Cusatis' complaints are untimely, Cusatis has failed to avail himself of the remedies provided by state law, and Cusatis is not entitled to use a writ of habeas corpus to compel state parole officials to deviate from the parole outcome mandated by state law, and by his own repeated misconduct.
The tangled history of criminal conduct, flight, parole violations, arrests, and imprisonment which define the issues in the case began on February 23, 2006, when the Court of Common Pleas of Luzerne County sentenced Cusatis to a term of three to six years for robbery. (Doc. 7, ¶1.) As a result of this conviction, the original minimum and maximum dates for Cusatis' sentence in this case were September 30, 2008, and September 30, 2011, respectively. (Id., ¶3.) This original minimum and maximum sentence calculation reflected that Cusatis received pre-sentence credit for the period when he was held in custody from September 30, 2005, to February 23, 2006. (Id., ¶4.) On May 21, 2009, the Parole Board paroled Cusatis from this sentence to the Hazelton Treatment Center. (Id., ¶5.)
Four months later, on September 23, 2009, Cusatis violated his parole when he absconded from the Hazelton Treatment Center, and his whereabouts remained unknown until the Hazelton City Police arrested him for new criminal charges onNovember 10, 2009. (Id., ¶¶6-7.) These new criminal charge, which included weapons offenses and making false statements to police, were filed in the Court of Common Pleas of Luzerne County at CP# 4033-2009. (Id., ¶8.) Cusatis was unable to post bail on these criminal charges and the Parole Board lodged its detainer against Cusatis for parole violations on November 11, 2009. (Id., ¶¶9-10.) Five days later, on November 16, 2009, Cusatis waived his hearing rights and admitted to violating condition #2 (change of residence without permission) and condition #7 (failure to successfully complete the Minsec Hazelton program) of his parole. Based on these admission, the Board recommitted Cusatis as a technical parole violator for violating condition #2 and condition #7 of his parole. Cusatis was notified of this decision through a letter mailed to him December 28, 2009. (Id., ¶¶11-12.) On March 18, 2010, Cusatis also pleaded guilty to Possession of an Instrument of Crime and False Identification to Law Enforcement Officer at CP# 4033-2009 in the Court of Common Pleas of Luzerne County, and was subsequently sentenced to serve 9 to 18 months in the county prison for these new convictions. (Id., ¶¶13-14.)
These new convictions, in turn, led to new parole violation citations. Thus, on April 1, 2010, Cusatis waived his hearing rights and admitted to being convicted of Possession of an Instrument of Crime and False Identification to Law Enforcement in violation of his parole. Based on his admissions, the Parole Board recommittedCusatis as a convicted parole violator for the offenses of Possession of an Instrument of Crime and False Identification to Law Enforcement on May 7, 2010. The May 7, 2010, revocation decision did not recalculate the maximum sentence date for Cusatis' sentence because he was required to serve his new county prison sentence before he could commence service of his original sentence. Cusatis also received notice of this Parole Board action through the United States mails. (Id., ¶¶15-17.)
On September 9, 2010, the Court of Common Pleas of Luzerne County paroled Cusatis from his new sentence and Cusatis was returned to a state correctional institution. (Id., ¶¶18-19.) Eleven days later, on September 30, 2010, the Parole Board mailed a parole violation sentence recalculation to Cusatis that changed his maximum sentence date from September 30, 2011, to January 18, 2013, based on his recommitment as a convicted parole violator. This January 18, 2013, recalculated maximum date reflected that Cusatis forfeited credit for the period he was at liberty on parole from May 21, 2009, to November 10, 2009. The January 18, 2013, maximum date calculation also reflected that Cusatis did not receive any credit on his parole violation sentence for the period he was incarcerated from November 10, 2009, to September 9, 2010, since Cusatis received credit on his new sentence at CP# 4033-2009 for the period he was incarcerated from November 10, 2009, to September 9, 2010. (Id., ¶¶20-23.) The January 18, 2013, maximum date calculation furtherreflected that Cusatis became available to commence service of his original sentence on September 9, 2010. (Id., ¶24.) This decision, which set forth the January 18, 2013, maximum release date, was mailed to Cusatis on September 30, 2010, and contained a clause stating, "IF YOU WISH TO APPEAL THIS DECISION, YOU MUST FILE A REQUEST FOR ADMINISTRATIVE RELIEF WITH THE BOARD WITHIN THIRTY DAYS OF THIS ORDER." (Id., ¶25.) Cusatis did not file a request for administrative relief within 30 days of the recalculation decision mailed September 30, 2010. Nor did he appeal the recalculation decision mailed September 30, 2010, to any Pennsylvania court. (Id., ¶26.)
Since the May 7, 2010, parole revocation, the Board has reviewed and denied Cusatis for reparole two times by decisions recorded August 30, 2011, and March 27, 2012. The March 27, 2012 parole denial also advised Cusatis that he would not be seen for parole review again on the Board's own motion before the expiration of his maximum sentence date on January 18, 2013. (Id., ¶¶28-29.) On May 7, 2012, and May 8, 2012, the Board received requests for administrative relief from Cusatis objecting to the January 18, 2013 maximum sentence date. The only claim raised in these requests for relief was that Cusatis was entitled to credit for time in the Hazelton program. On May 24, 2012, the Board mailed Cusatis a response dismissing his belated requests for administrative relief as untimely. (Id., ¶¶30-32.)
On April 27, 2012, Cusatis filed this petition for writ of habeas corpus. (Doc. 1.) At bottom this petition challenged the Parole Board's 2010 recalculation of his parole violation sentence as arbitrary, and violated of double jeopardy principles. (Id.) This matter has been fully briefed by the parties, (Docs. 1, 7 and 9.) and is now ripe for disposition. For the reasons set forth below, it is recommended that the petition be denied.
A state prisoner seeking to invoke the power of this court to issue a writ of habeas corpus must satisfy the standards prescribed by Title 28, United States Code, Section 2254, which provides in part as follows:
As this statutory text implies, state prisoners must meet exacting substantive and procedural benchmarks in order to obtain habeas corpus relief. At the outset, federal courts may "entertain an application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates "the Constitution or laws or treaties of the United States", Section 2254 places a high threshold on the courts. Typically, habeas relief will only be granted to state prisoners in those instances where the conduct of state proceedings resulted in a "fundamental defect which inherently results in a complete miscarriage of justice" or was completely inconsistent with rudimentary demands of fair procedure. See, e.g., Reed v. Farley, 512 U.S. 339, 354 (1994). Thus, claimed violations of state law, standing alone, will not entitle a petitioner to Section 2254 relief, absent a showing that those violationsare so great as to be of a constitutional dimension. See, Priester v. Vaughan, 382 F.3d 394, 401-02 (3d Cir. 2004).
Furthermore, state prisoners seeking relief under Section 2254 must also satisfy specific, and precise, procedural...
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