Bocina

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MICHAEL BOCINA, :

Petitioner : No. 1:25-cv-01592

:

v. : (Judge Kane)

:

KATHY BRITTAIN, et al., :

Respondents :

MEMORANDUM

Currently before the Court is the petition for a writ of habeas corpus under 28 U.S.C. §

2254 filed by pro se Petitioner Michael Bocina (“Bocina”), a convicted and sentenced state

prisoner, in which he challenges a decision by the Pennsylvania Board of Probation and Parole

(“Parole Board”) establishing a new maximum parole violation sentence date after revoking his

parole. For the reasons set forth below, the Court will dismiss the petition due to Bocina’s

failure to exhaust state-court remedies.

I. BACKGROUND

From June through October 2016, Bocina pleaded guilty to several criminal offenses in

four separate criminal actions filed in the Court of Common Pleas of Carbon County. See

Commonwealth v. Bocina, No. CP-13-CR-0000299-2015 (Carbon Cnty. Ct. Com. Pl. filed Mar.

20, 2015) (“Bocina I”); Commonwealth v. Bocina, No. CP-13-CR-0001187-2015 (Carbon Cnty.

Ct. Com. Pl. filed Oct. 15, 2015) (“Bocina II”); Commonwealth v. Bocina, No. CP-13-CR-

0000599-2016 (Carbon Cnty. Ct. Com. Pl. filed May 6, 2016) (“Bocina III”); Commonwealth v.

Bocina, No. CP-13-CR-0001131-2016 filed Aug. 18, 2016) (“Bocina IV”).1 On June 16, 2016,

1 The Court takes judicial notice of the dockets in Bocina’s underlying criminal cases, as well as

his other state-court proceedings referenced in his petition and discussed in this Memorandum,

all of which are available on the Unified Judicial System of Pennsylvania Web Portal

(https://ujsportal.pacourts.us/CaseSearch (last visited Aug. 26, 2025)). See Orabi v. Att’y Gen.

Bocina was sentenced to: (1) an aggregate period of incarceration for a minimum of six months

and three days to a maximum of six years and eleven months, after pleading guilty to driving

under the influence, impaired ability – first offense (75 P.S. § 3802(d)(2)) and endangering

welfare of children (18 Pa. C.S. § 4304(a)(1)); and (2) a consecutive period of one year of

probation after pleading guilty to possession of a controlled substance (35 P.S. § 780-

113(a)(16)). See Bocina III. Approximately two months later, on August 11, 2016, the trial

court sentenced Bocina to an aggregate period of confinement for a minimum of three years and

thirty days to a maximum of seven years after he pleaded guilty to possession of a controlled

substance with intent to manufacture or deliver (35 P.S. § 780-113(a)(30)) and endangering the

welfare of children.2 See Bocina II. The trial court ordered that Bocina’s aggregate term of

incarceration would run consecutive to his confinement in Bocina III. See id. Finally, on

September 26, 2016, the trial court sentenced Bocina to an aggregate term of incarceration for a

minimum of ten months to a maximum of seven years, with this incarceration to run concurrently

with his other terms of confinement. See Bocina IV. Bocina did not file any direct appeals from

his sentences. See Bocina I; Bocina II; Bocina III; Bocina IV.

of the U.S., 738 F.3d 535, 537 n.1 (3rd Cir. 2014) (stating that the court “may take judicial notice

of the contents of another [c]ourt’s docket”); Wilson v. McVey, 579 F. Supp. 2d 685, 688 n.5

(M.D. Pa. 2008) (taking judicial notice of court docket). Additionally, although Bocina mentions

only two of these four criminal cases in his habeas petition (Doc. No. 1 at 1 (referencing Bocina

III and Bocina IV)), the docket sheets for his four criminal cases show that the sentencing courts

considered at least one (1) of Bocina’s other criminal cases when deciding whether to impose

consecutive or concurrent sentences in each of the other cases. As such, the Court briefly

discusses all four cases as part of the background of this matter.

2 On the same date, it appears that Bocina was sentenced to one year of probation, which was

ordered to run concurrently with the probation portion of his sentence in Bocina III, after he

pleaded guilty to false identification to a law enforcement officer (18 Pa. C.S. § 4914(a)). See

Bocina I.

At some point not identified in his petition, Bocina was granted parole. However, on

February 28, 2025, the Parole Board revoked Bocina’s parole and recommitted him to a state

correctional institution as a parole violator. (Doc. No. 1 at 5, 13.) The Parole Board also

established Bocina’s maximum parole violation date, which he asserts now “exceed[s] his

originally imposed maximum sentence by 7 years, 10 months, and 13 days.”3 See (id. at 5).

Following the revocation decision, Bocina filed a petition for administrative review with

the Parole Board on March 17, 2025. (Id. at 13.) The Parole Board affirmed its prior decision,

after which Bocina filed a petition for review with the Commonwealth Court of Pennsylvania.

(Id.); see Bocina v. Pa. Parole Bd., No. 633 CD 2025 (Pa. Commw. Ct. filed May 16, 2025)

(“Commw. Dkt.”). The petition for review is still pending before the Commonwealth Court.

(Doc. No. 1 at 13); Commw. Dkt.

Bocina filed the instant Section 2254 petition on August 7, 2025.4 (Doc. No. 1.) In this

petition, Bocina asserts four arguments in support of habeas relief. First, he contends that the

Parole Board violated his rights under the Fifth Amendment to the United States Constitution

because it subjected him to double jeopardy insofar as it “cause[d him] to serve time again by

discrediting his ‘back time’ and adding this time to the remaining balance exceeding his

originally imposed maximum sentence by 7 years, 10 months, and 13 days.” See (id. at 5).

Second, he asserts that the Parole Board violated his Eighth Amendment right to be free from

3 Bocina does not specify the parole violation sentence he received.

4 The federal “prisoner mailbox rule” provides that a pro se prisoner’s submission is deemed

filed “at the time [the prisoner] delivered it to the prison authorities for forwarding to the court

clerk.” See Houston v. Lack, 487 U.S. 266, 276 (1988). Here, Bocina includes a declaration

with his petition in which he states that he provided his petition in the prison mailing system on

August 7, 2025. (Doc. No. 1 at 14.) As such, the Court uses August 7, 2025, as the petition’s

filing date, even though the Clerk of Court did not docket the petition until August 25, 2025.

cruel and unusual punishment by directing him to “serve additional time not imposed by the

original sentencing court.” See (id. at 6). Third, he argues that the Parole Board violated his due

process and equal protection rights under the Fourteenth Amendment “by putting him twice in

jeopardy making him serve an additional sentence punishing him cruely [sic] and unusually.”

See (id. at 8). Fourth, and finally, he maintains that the Parole Board lacked subject-matter

jurisdiction to recalculate his maximum sentence. (Id. at 9.) For relief, Bocina seeks an order

reversing “the Parole Board’s decision illegally extending [his] originally imposed maximum

sentence.” See (id. at 14).

II. LEGAL STANDARDS

A. Preliminary Review of Section 2254 Habeas Petitions

District courts are tasked with conducting a preliminary review of Section 2254 habeas

petitions. See R. 4, 28 U.S.C. foll. §2254 (“The clerk must promptly forward the [habeas]

petition to a judge under the court’s assignment procedure, and the judge must promptly examine

it.”). When conducting this review, “[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the

petition and direct the clerk to notify the petitioner.” See id.; see also Lonchar v. Thomas, 517

U.S. 314, 320 (1996) (explaining that following initial review, “a district court is authorized to

dismiss a [habeas] petition summarily when it plainly appears from the face of the petition and

any exhibits annexed to it that the petitioner is not entitled to relief in the district court”);

McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss

summarily any habeas petition that appears legally insufficient on its face.”).

B. Section 2254 Habeas Petitions Challenging State Parole Revocations

A petition for writ of habeas corpus is the exclusive federal remedy for a state prisoner

challenging the “very fact or duration” of their confinement and seeking “immediate release or a

speedier release from that imprisonment.” See Preiser v. Rodriguez, 411 U.S. 475, 498–99

(1973); Leamer v. Fauver, 288 F.3d 532, 542–44 (3d Cir. 2002). As such, because state

prisoners challenging parole revocations and recalculations of sentences are in custody pursuant

to a state-court judgment, their avenue to possible habeas relief is through Section 2254. See

Coady v. Vaughn, 251 F.3d 480, 486 (3d Cir. 2001) (explaining that “Section 2254, in contrast to

[28 U.S.C. § 2255], confers broad jurisdiction to hear the petition of any state prisoner ‘in

custody in violation of federal law[,]” and concluding that Section 2254 allows state prisoners’

challenges to the execution of their sentences as well as challenges to the validity of their

convictions and sentences). To obtain relief, these petitioners must show that they are “in

custody in violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. §

2254(a). Claimed violations of state law standing alone, will not entitle petitioners to relief,

absent a showing that those violations are so great as to be of a constitutional dimension. See

Estelle v. McGuire, 502 U.S. 62, 67–68 (1991) (“[I]t is not the province of a federal habeas court

to reexamine state-court determinations on state-law questions. In conducting habeas review, a

federal court is limited to deciding whether a conviction violated the Constitution, laws, or

treaties of the United States.”).

Furthermore, a state prisoner seeking to invoke the power of this Court to issue a writ of

habeas corpus must have exhausted the remedies available to them in the courts of the state. See

28 U.S.C. § 2254(b)(1)(A). “It is axiomatic that a federal court may not grant a petition for a

writ of habeas corpus unless the petitioner has first exhausted the remedies available in the state

courts.” Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997) (citation omitted); see also 28

U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that—(A) the

applicant has exhausted the remedies available in the courts of the State; or (B)(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.”). A federal court may consider a habeas

petition only after the petitioner “‘fairly present[s’ their] claim in each appropriate state court

(including a state supreme court with powers of discretionary review), thereby alerting that court

to the federal nature of the claim.” See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting

Duncan v. Henry, 513 U.S. 364, 365–66 (1995)). In other words, to fully exhaust their state

remedies, a habeas petitioner must invoke “one complete round of the state’s established

appellate review process.” See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); see also 28

U.S.C. § 2254(c) (“An applicant shall not be deemed to have exhausted the remedies available in

the courts of the State, within the meaning of this section, if he has the right under the law of the

State to raise, by any available procedure, the question presented.”).

Habeas petitioners are required to exhaust state remedies because exhaustion “addresses

federalism and comity concerns by afford[ing] the state courts a meaningful opportunity to

consider allegations of legal error without interference from the federal judiciary.” See Lambert,

134 F.3d at 513 n.18 (citation and internal quotation marks omitted). Therefore, although the

exhaustion requirement is a comity concern and not a jurisdictional concern, it “should be strictly

adhered to because it expresses respect for our dual judicial system.” See Caswell v. Ryan, 953

F.2d 853, 857 (3d Cir. 1992) (citation omitted). In addition, “[e]qually as important, federal

claims that have been fully exhausted in state courts will more often be accompanied by a

complete factual record to aid the federal courts in their review.” See Rose, 455 U.S. at 519.

The petitioner bears the burden of demonstrating that they have satisfied the exhaustion

requirement. See Lines v. Larkins, 208 F.3d 153, 159 (3d Cir. 2000) (“The burden of

establishing that [Section 2254 habeas] claims were fairly presented falls upon the petitioner.”

(citing Lambert, 134 F.3d at 513)).

III. DISCUSSION

A. Review of Bocina’s Petition

After reviewing Bocina’s petition, it plainly appears that he is not entitled to relief at this

time because he did not exhaust his state-court remedies prior to filing his petition. Although

Bocina repeatedly asserts in his petition that he did not need to first exhaust those remedies

because he is challenging “matters of parole,” see (Doc. No. 1 at 5, 7, 8, 10), he is mistaken.

Although a Pennsylvania state prisoner filing a habeas petition under Section 2254 is

ordinarily required to fully exhaust their state-court remedies prior to filing their petition, the

Third Circuit Court of Appeals in DeFoy v. McCollough, concluded that a state prisoner

challenging the denial of parole on constitutional grounds, other than asserting an ex post facto

claim, is not required to exhaust state-court remedies prior to filing a habeas petition. See 393

F.3d 439, 445 (3d Cir. 2005) (“[W]e conclude that claims of constitutional violations in the

denial of parole in Pennsylvania need not be presented to the state courts via a petition for writ of

mandamus in order to satisfy the requirement of exhaustion.”).5 The Third Circuit’s decision in

DeFoy, however, is of no aid to Bocina in this case because he is not challenging the Parole

5 In DeFoy, the Third Circuit determined that the Commonwealth Court’s decision in Weaver v.

Pennsylvania Board of Probation & Parole, 688 A.2d 766, 771–72 (Pa. Commw. Ct. 1997),

which “held that mandamus is not available to a prisoner denied parole based upon a

constitutional error by the parole board,” was “the best indication of how the Pennsylvania

Supreme Court would resolve the issues” raised in the case. See id. at 444.

Board’s denial of parole.6 Instead, he is challenging the Parole Board’s decision to resentence

him as a parole violator to a sentence that allegedly exceeded the maximum sentence imposed by

the original sentencing judge. Any habeas challenge to such a decision must be fully exhausted

in the state courts prior to filing a Section 2254 petition. See Buxton v. Pennsylvania, 398 F.

App’x 704, 707 (3d Cir. 2010) (unpublished) (concluding that district court properly determined

that Section 2254 petitioner’s “challenge to [his] parole revocation [w]as unexhausted because

[the petitioner did] not claim to have appealed” the Parole Board’s decision to the

Commonwealth Court).

To properly exhaust a claim challenging the Parole Board’s revocation of parole,

recommitment, and recalculation of the sentence, a Section 2254 habeas petitioner must first file

an appeal or a petition for administrative review with the Parole Board. See 37 Pa. Code §

73.1(a) (“An interested party, by counsel unless unrepresented, may appeal a revocation

decision.”); id. § 73.1(b) (“A parolee, by counsel unless unrepresented, may petition for

administrative review under this subsection of determinations relating to revocation decisions

which are not otherwise appealable under subsection (a).”).7 The filing of an appeal or a petition

6 Although the Third Circuit has not overruled DeFoy, “some district courts in the Third Circuit

have questioned the continuing validity of [that decision]” and, consequently, concluded that

Section 2254 habeas petitioners challenging parole denials are obligated to exhaust state-court

remedies (through the filing of a petition for a writ of mandamus with the Commonwealth Court)

before filing a Section 2254 petition challenging the Parole Board’s denial of parole. See Shoop

v. Pa. Bd. of Parole, No. 25-cv-00943, 2025 WL 2178422, at *7–8 (M.D. Pa. July 31, 2025)

(citing cases and addressing continued applicability of DeFoy in Section 2254 cases challenging

denials of state parole).

7 It appears that petitions for administrative review under subsection 73.1(b) involve challenges

to aspects of the Parole Board’s revocation decision that do not include “whether the decision is

supported by substantial evidence, an error of law has been committed or there has been a

violation of constitutional,” as those are the limited grounds upon which to appeal under

subsection 73.1(a). See id. § 73.1(a)(2).

for administrative review postpones the finality of the Parole Board’s revocation decision “for

purpose of appeal to a court until the [Parole] Board has mailed its decision on the appeal [or] . .

. . response to the petition for administrative review.” See id. §§ 73.1(a)(1), (b)(1). Once the

Parole Board resolves the appeal or petition for administrative review, the petitioner must file a

petition for review in the Commonwealth Court. See 42 Pa. C.S. § 763(a) (establishing

Commonwealth’s exclusive appellate jurisdiction in certain cases, such as in, inter alia, “[a]ll

appeals from . . . any Commonwealth agency having Statewide jurisdiction”); Commonwealth v.

Fells, 518 A.2d 544, 544 (Pa. 1986) (explaining that challenges to the Parole Board’s revocation

of parole “are in the appellate jurisdiction of the Commonwealth Court”); Borsello v. Colleran,

833 A.2d 1213, 1215 (Pa. Commw. Ct. 2003) (“Appeals of the [Parole] Board’s parole

revocation and recommitment orders are within the exclusive appellate jurisdiction of the

Commonwealth Court.”). If the petitioner is unsuccessful in the Commonwealth Court, they

must seek further review in the Pennsylvania Supreme Court before bringing a federal habeas

action. See Williams v. Wynder, 232 F. App’x 177, 180 (3d Cir. 2007) (unpublished)

(concluding that Pennsylvania Supreme Court’s Administrative Order 218 does not apply to

appeals from Commonwealth Court decisions);8 Jones v. Tritt, No. 16-cv-01741, 2019 WL

8 Administrative Order 218 provides as follows:

[W]e hereby recognize that the Superior Court of Pennsylvania reviews criminal as

well as civil appeals. Further, review of a final order of the Superior Court is not a

matter of right, but of sound judicial discretion, and an appeal to this court will be

allowed only when there are special and important reasons therefor. Pa. R.A.P.

1114. Further, we hereby recognize that criminal and post-conviction relief

litigants have petitioned and do routinely petition this Court for allowance of appeal

upon the Superior Court’s denial of relief in order to exhaust all available state

remedies for purposes of federal habeas corpus relief.

In recognition of the above, we hereby declare that in all appeals from criminal

convictions or post-conviction relief matters, a litigant shall not be required to

314718, at *2 (M.D. Pa. Jan. 24, 2019) (“If a petitioner . . . fails to seek review from the

Pennsylvania Supreme Court of an unfavorable disposition by the Commonwealth Court, then

the claim remains unexhausted.” (citing Williams, 232 F. App’x at 180)); see also Jackson v.

Clark, No. 17-cv-00249, 2018 WL 3040369, at *2 (W.D. Pa. May 16, 2018) (explaining that

petitioner claiming that the Parole Board “erred in calculating his parole violation maximum

sentence date” had to exhaust state-court remedies before filing Section 2254 petition).

Here, Bocina acknowledges that he has filed a petition for review with the

Commonwealth Court, which is currently pending. If he is unsuccessful in the Commonwealth

Court, he would be required to seek review from the Pennsylvania Supreme Court to satisfy the

exhaustion requirement. Overall, the instant petition is premature. Therefore, the Court will

dismiss the petition without prejudice to Bocina refiling it once he has fully exhausted his state-

remedies.9

B. Certificate of Appealability

“Unless a circuit justice or judge issues a certificate of appealability, an appeal may not

be taken to the court of appeals from . . . the final order in a habeas proceeding in which the

detention complained of arises out of process issued by a State court[.]” 28 U.S.C. §

petition for rehearing or allowance of appeal following an adverse decision by the

Superior Court in order to be deemed to have exhausted all available state remedies

respecting a claim of error. When a claim has been presented to the Superior Court,

or to the Supreme Court of Pennsylvania, and relief has been denied in a final order,

the litigant shall be deemed to have exhausted all available state remedies for

purposes of federal habeas corpus relief. This Order shall be effective immediately.

See In re: Exhaustion of State Remedies in Criminal and Post–Conviction Relief Cases, No. 218

Jud. Admin. Docket No. 1 (Pa. May 9, 2000).

9 If the Pennsylvania Supreme Court were to ultimately deny Bocina’s petition for allowance of

appeal, he should promptly file a habeas petition due to the one-year habeas limitations period

applicable to Section 2254 petitions. See 28 U.S.C. § 2244(d).

2253(c)(1)(A). A judge may issue a certificate of appealability “only if the applicant has made a

substantial showing of the denial of a constitutional right.” See id. § 2253(c)(2). This showing

requires a habeas petitioner to demonstrate that “reasonable jurists could debate whether ... the

petition should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement further.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(citation and internal quotation marks omitted). In this case, the Court declines to issue a

certificate of appealability as jurists of reason would not find it debatable whether the court

should dismiss without prejudice this habeas petition because Bocina has not fully exhausted his

state court remedies.

IV. CONCLUSION

For the foregoing reasons, the Court will dismiss Bocina’s Section 2254 habeas petition

without prejudice to him refiling it once he fully exhausts his available state court remedies. The

Court will not issue a certificate of appealability and will direct the Clerk of Court to close this

case. An appropriate Order follows.

s/ Yvette Kane

Yvette Kane, District Judge

United States District Court

Middle District of Pennsylvania