The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
RUSSELL JOHNSON :
Petitioner : CIVIL ACTION NO. 3:21-0322
v. : (JUDGE MANNION)
:
PA BD OF PROB ANDPAROLE,
:
Respondents
:
MEMORANDUM
Petitioner, Russell Johnson, an inmate confined in the Hazleton
Federal Correctional Institution, Bruceton Mills, West Virginia, filed the
instant petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc.
1). He challenges a detainer lodged against him by the Pennsylvania Board
of Probation and Parole (“the Board”). Id. The petition is ripe for disposition.
For the reasons outlined below, the petition will be dismissed.
I. Background
On August 2, 2011, Johnson was sentenced to thirty-two months to
seven years’ incarceration, after having pled guilty in the Fayette County
Court of Common Pleas, to one count of Possession with Intent to Deliver a
Controlled Substance. (Doc. 9 at 12, Sentence Status Summary). Johnson’s
controlling minimum and maximum sentence dates at institution number KR-
7534 were January 27, 2015 and July 27, 2018, respectively. Id.
On November 3, 2014, the Board issued an unexecuted conditional
grant of parole, granting Johnson parole on, or after, January 27, 2015. (Doc.
9 at 16, Notice of Board Decision). On January 27, 2015, the Board paroled
Johnson from his sentence to an approved home plan in Pittsburgh, Pa.
(Doc. 9 at 20, Order to Release on Parole).
On June 6, 2017, Johnson, along with a number of other co-
defendants, was indicted by a Federal Grant Jury in the United States District
Court for the Western District of Pennsylvania and charged with Conspiracy
to Distribute and Possession with Intent to Distribute Heroin. (Doc. 9 at 25,
Superseding Indictment).
On June 21, 2018, in light of Johnson’s federal criminal charges, the
Board issued a warrant to commit and detain Johnson. (Doc. 9 at 36). On
July 12, 2018 the Board’s supervision staff filed a notice of charges due to
Johnson’s new criminal charges. (Doc. 9 at 38-43, Notice of Charges,
Criminal Arrest, Disposition Report and Supervision History). By a decision
dated July 23, 2018, the Board issued a decision to detain Johnson pending
the disposition of his criminal charges. (Doc. 9 at 45, Notice of Board
Decision).
On October 3, 2018, the Board issued an Administrative Action,
declaring Johnson delinquent for control purposes, after Johnson maxed out
on his original sentence on July 27, 2018. (Doc. 9 at 47, Administrative
Action).
On October 15, 2019, Johnson pled guilty in the United States District
Court for the Western District of Pennsylvania, to one count of Conspiracy to
Distribute Heroin and was sentenced to a 110-month term of imprisonment.
(Doc. 9 at 49, Judgment).
On November 15, 2019, the Board lodged its warrant as a detainer
against Johnson while serving his federal sentence. (Doc. 9 at 57, Warrant).
On May 20, 2020, Johnson filed a “Request for Final Disposition of
Warrant, Detainer, Information under the Appropriate Rules” in the Fayette
County Court of Common Pleas, seeking disposition of his pending Warrant).
(Doc. 1 at 4). By letter dated June 2, 2020, the Court of Common Pleas
forwarded Johnson’s petition to Johnson’s attorney, stating an attorney must
make a motion to withdraw pursuant to Pa.R.Crim.P. 120(B)(1). (Doc. 1 at
3).
On September 14, 2020, the Board reviewed Johnson’s petition and
notified him of the following:
You are currently unavailable to our detainer. When you are
released from your current confinement, you will be returned for
violation of parole. Our detainer will not be lifted but will remain
in place to assure your return to a state correctional institution.
At that time, you will be offered a formal hearing for violation of
parole. We have no objections to your participation in any
rehabilitative programs available to you.
(Doc. 1 at 2).
On February 22, 2021, Johnson filed the instant petition for writ of
habeas corpus, requesting this Court to direct the Board to “either take
custody or remove the lodged detainer.” (Doc. 1).
II. Discussion
A parolee facing revocation of parole has a conditional constitutional
liberty interest in remaining free. See Morrissey v. Brewer, 408 U.S. 471,
483-84 (1972). Due process requires that a parole revocation hearing be
held “within a reasonable time after the parolee is taken into custody.” Id. at
488. A defendant generally is entitled to two separate hearings prior to
revocation of parole or probation. See Gagnon v. Scarpelli, 411 U.S. 778,
782, 786 (1973). The purpose of the first, pre-revocation hearing (a Gagnon
I hearing) is to determine that probable cause exists to believe that a violation
has been committed. Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa.
Super. Ct. 2000). The second, “more comprehensive hearing” (a Gagnon II
hearing), is to determine whether facts exist to justify revocation of parole or
probation. Id.
“However, the [revocation] hearing requirement is ‘not triggered when
the warrant is placed as a detainer at an institution where the ... parolee is
already in custody awaiting disposal of an intervening charge or serving a
sentence for a crime committed while on supervised release.’ ” Singleton v.
Superintendent Camp Hill, 747 F. App’x 89, 93 (3d Cir. 2018) (quoting United
States v. Wickham, 618 F.2d 1307, 1309, n.3 (9th Cir. 1979)). Rather, the
duty to provide a revocation hearing arises only when the parolee “is taken
into custody as a parole violator by execution of the warrant,” because
“execution of the warrant and [consequent] custody under that warrant [is]
the operative event triggering any loss of liberty attendant upon parole
revocation.” Id. (citing Moody v. Daggett, 429 U.S. 78, 87, 89 (1976)).1
1 “[T]he lodging of a detainer does not amount to execution of the warrant. A
detainer is designed merely to provide notice to the institution of confinement
that a warrant has been issued and that the [government] intends to consider
the question of parole revocation at a later date. The operative event
triggering any loss of liberty attendant upon parole revocation is the
execution of the warrant and the concomitant assumption of custody of the
parolee.” Bradley v. United States Parole Comm’n, Civ. A. No. 15-247, 2017
WL 2604267, at *3 (M.D. Pa. May 23, 2017) (internal citations and quotations
(footnote continued on next page)
Pursuant to the Pennsylvania Parole Board’s administrative
regulations, “[i]f the parolee is in custody in another state, or in Federal
custody, the Board may lodge its detainer, but other matters may be deferred
until the parolee has been returned to a State correctional facility in this
Commonwealth.” 37 Pa. Code §71.5; see also id. at §71.4(1)(i) (if a parolee
is confined outside the jurisdiction of the Pennsylvania Department of
Corrections, a revocation hearing shall be held within 120 days of the official
verification of the return of the parolee to a state correctional facility). Indeed,
the Board advised Johnson in its response to his inquiry that upon
completion of Johnson’s federal sentence, and the execution of the parole
warrant, he would be returned to a Pennsylvania state facility where he would
receive a parole revocation hearing. (See Doc. 1 at 2.)
Until his release from federal custody, Johnson’s denial of liberty is the
result of his federal conviction on other charges, and not the lodging of the
detainer for the Pennsylvania parole violation warrant. Accordingly, the due
process protections of Morrissey have not yet been triggered. See Singleton,
747 F. App’x at 93 (Singleton was in custody pursuant to his subsequent
Pennsylvania charges, not as a violator of his New York probation, and thus,
omitted), report and recommendation adopted, Civ. A. No. 15-247, 2017 WL
2592403 (M.D. Pa. June 15, 2017).
his due process right to a prompt probation revocation hearing was not
triggered until he was taken into custody by New York after pleading guilty
to his Pennsylvania crimes); Underwood v. Pennsylvania Bd. of Prob. &
Parole, Civ. A. No. 19-1634, 2021 WL 1197697, at *4 (M.D. Pa. Mar. 30,
2021) (civil rights plaintiff’s due process rights were not triggered while in
federal custody because state parole warrant had not yet been executed);
see also Sellers v. Pennsylvania Bd. of Prob. & Parole, Civ. A. No. 19-4666,
2020 WL 8968104, at *3 (E.D. Pa. Sept. 23, 2020) (finding due process claim
brought in §2254 habeas petition to be meritless because Pennsylvania
Parole Board was not required to provide petitioner with a parole violation
hearing until he completed his federal sentence, and therefore, issuance of
parole detainer and failure to conduct a hearing within 120 days of its
issuance or petitioner's federal sentencing did not deprive petitioner of any
constitutionally-protected rights), report and recommendation adopted sub
nom. Sellers v. Pa. Bd. of Prob. & Parole, Civ. A. No. 19-4666, 2021 WL
1105337 (E.D. Pa. Mar. 23, 2021).
Johnson also contends that the imposition of the detainer and delay in
executing the warrant denies him the opportunity to participate in prison
rehabilitation or re-entry programs. To the extent he seeks to allege a due
process violation on this basis, he has failed to allege a plausible claim. The
Supreme Court has held that the Due Process Clause is not implicated by
“prisoner classification and eligibility for rehabilitative programs,” even where
an inmate suffers “grievous loss,” because “Congress has given federal
prison officials full discretion to control these conditions of confinement.” See
Moody, 429 U.S. at 88 n.9. In Moody, the Court held that the petitioner had
no legitimate statutory or constitutional entitlement sufficient to invoke due
process. Id.
In this case, absent a protected liberty interest, Johnson cannot
maintain a due process claim regarding his prison classification due to the
existence of the detainer. See Bailey v. Ebbert, Civ. A. No. 15-1554, 2016
WL 11612608, at *2 (M.D. Pa. Aug. 5, 2016) (noting that federal inmate has
no constitutional right to a particular classification) (citing Moody, 419 U.S.
at 88 n.9); see also Zavalunov v. Fed. Bureau of Prisons, Civ. A. No. 19-453,
2020 WL 2036722, at *11 (M.D. Pa. Apr. 28, 2020) (federal inmate did not
have due process right to participation in rehabilitative program); Garcia-
Hernandez v. Dept of Homeland Sec., Civ. A. No. 19-222, 2021 WL 640859,
at *2 (W.D. Pa. Jan. 20, 2021) (Congress has given federal prison officials
full discretion to control prisoner classification and eligibility for rehabilitative
programs in the federal system and petitioner has no legitimate statutory or
constitutional entitlement sufficient to invoke due process); Mathis v.
Kauffman, Civ. A. No. 19-1377, 2019 WL 4594105, at *3 (M.D. Pa. Sept. 20,
2019) (denying habeas relief because petitioner had no protectable liberty
interest in his prisoner classification, qualification for rehabilitative programs,
or early release and thus could not show a constitutional deprivation as a
result of the existence of the parole violator detainer); Springer v. United
States, Civ. A. No. 10-967, 2010 WL 4235472, at *4 (D.N.J. Oct. 20, 2010)
(collateral consequences of a detainer, such as denial of the opportunity to
participate in prison rehabilitation programs, do not rise to the level of a
constitutional deprivation for which habeas relief can be granted); Velazquez
v. United States Parole Comm’n, Civ. A. No. 08-0841, 2009 WL 3287387, at
*5 (M.D. Pa. Oct. 13, 2009) (rejecting habeas petitioner’s claim that due
process rights were violated due to detainer and previously unexecuted
warrant adversely affecting his prison classification and his ability to
participate in certain institutional programs because petitioner has no
legitimate statutory or constitutional entitlement sufficient to invoke due
process).
The Court having found the Petitioner was not deprived of due process
as a result of the detainer and delay in receiving a parole revocation hearing
or the collateral consequences of that delay, his present incarceration is
lawful, and the Court will deny his request for habeas relief for lack of merit.
III. Conclusion
Based upon the foregoing, the petition for a writ of habeas corpus
under 28 U.S.C. §2241 will be denied for lack of merit.
A separate Order will be issued.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: January 5, 2022
21-0322-01